MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

November 9, 1995

The Board of County Commissioners of Brevard County, Florida, met in special session on November 9, 1995, at 10:30 a.m. in the Government Center Multipurpose Room, Building C, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Mark Cook, and Scott Ellis, County Manager Tom Jenkins, and County Attorney Scott Knox.

County Attorney Scott Knox stated there is a November 12, 1995 deadline to file an appeal on the Ethics Commission?s opinion concerning the fire fighters and the conflict of interest with Harbor City; and the only issue the County would appeal at this time is whether or not the County has the ability to adopt an ordinance to waive the conflict of interest. He advised there is a Florida Statute that seems to say that; but the Ethics Commission does not feel it applies. He stated the two issues the Board needs to discuss are whether it wants to file an appeal and whether, if it does file an appeal and prevail, it wants to adopt an ordinance waiving the conflict of interest for particular professional employees operating in outside jobs in their profession.

Commissioner O'Brien stated fire fighters, in particular, have been doing this for years; and all of a sudden the conflict of interest question came up. He stated the fire fighters, like Sheriff?s deputies and State troopers, have second jobs; if fire fighters, who are making approximately $8 an hour without their second income, are working at jobs that help improve their skills, the County is the winner; and it should not try and hold the fire fighters back because they have families to feed and are not rich.

Commissioner Ellis stated he does not have a problem with people working both jobs, and does not understand how this ever went to the Commission on Ethics. He stated the question he raised was if these workers have a conflict because they were supposed to be monitoring Harbor City Ambulance; he asked how many times someone who works as a fire fighter turned in the ambulances for discrepancies; and that is the basis of the opinion. He stated fire fighters do not inspect ambulances; and what has to happen is for a fire fighter to see something occur on an ambulance and turn it in. He inquired how often does that happen, if that is the basis for the conflict. Commissioner Cook inquired if that is part of the fire fighters? duties. EMS Chief William Farmer responded staff is compiling those numbers now; crews complain a couple of times a month about the way Harbor City Ambulance does its BLS techniques, responds, treats patients, etc.; a file has never been kept of complaints about Harbor City Ambulance from the County group; and it will take time to get the information. Commissioner Ellis inquired when a fire fighter working north of Pineda Causeway in his County job and working for Harbor City Ambulance as a second job would see Harbor City ambulances. Chief Farmer advised the fire fighter could see a Harbor City ambulance on any shift trade, anytime he went to a big scene that pulled units south, or anytime he worked overtime; and it cannot be guaranteed that the employee will remain north of Pineda Causeway. Commissioner Ellis stated those are the numbers he is looking for; and if someone works for the County ambulance in North Brevard and Harbor City Ambulance works in South Brevard, those are

two different areas. Commissioner O'Brien inquired if there is a difference between one incident or one hundred incidents. Commissioner Ellis responded there is a difference; and inquired why punish

99% of the people for 1%. Commissioner O'Brien stated he agrees; and that is why the Board is meeting today.

Commissioner Cook stated his concern is it is part of the fire fighters? professional responsibility to report if they observe something that is not correct. Chief Farmer stated that is not in the fire fighters? job description; but historically that is the way complaints are handled. He stated the fire fighters are the first line to observe what is going on; and they know the County acts on complaints.

Chairman Higgs stated when working jointly on an accident, the County employees, working on County rigs, may see something transpire; and they would submit the complaint. Chief Farmer advised South Brevard fire trucks run with Harbor City Ambulance daily. Chairman Higgs stated they would be most likely to submit; with Chief Farmer responding yes.

Commissioner Ellis inquired if he was a fire fighter in Merritt Island, but also had a job with Harbor City, when would he be called to a scene that would involve Harbor City; and stated it is extremely rare that the paths would cross. Chief Farmer stated it is not as rare as Commissioner Ellis might think, especially where 43 and 61 border.

County Manager Tom Jenkins inquired if he was a County fire medic and observed a protocol violation of Harbor City Ambulance, would he be under more duress not to report it than he would with the County; and if he works for the County, would he get in trouble reporting Harbor City Ambulance because he works for Harbor City. Chief Farmer advised he does not know that there would be a difference.

Commissioner Ellis stated he is concerned about the implication of anyone holding a part-time job; and inquired if he works in the Building Department and has a part-time job at 7-Eleven and sees building violations, should he turn them in. Chairman Higgs stated the difference is someone would be at the scene doing his job with Brevard County Fire Rescue when he observed violations of protocol; later that night the person would be working for Harbor City Ambulance; and the question is whether there would be a reluctance to turn in the violation while on duty. Commissioner Ellis stated that gets back to the second job issue; and even someone in the Building Department will be unable to hold a second job because potentially he could one day have to inspect work done at the second job. Assistant County Attorney Shannon Wilson stated the different is that Harbor City and Coastal Ambulance are doing business with the County; and 7-Eleven is not in the same circumstances. Commissioner Ellis noted that would depend on the definition of contract, as the County does issue occupational licenses. Ms. Wilson noted that is true, but is not a contract in the sense of the definition of the Ethics Commission. Commissioner O'Brien stated what may be a closer comparison is someone working in the Building Department during the day and moonlighting at Stottler Stagg and Associates to design a new library. Commissioner Ellis stated someone could be a utility worker and lay pipe on weekends for someone. Commissioner Cook stated that could be a conflict as could a Road and Bridge Director building private roads. Commissioner Ellis stated it would only be a conflict if the employee turned around and inspected the job afterwards; and the

issue is someone who works for a Fire Rescue station in North Brevard, who happens to be on the scene with Harbor City Ambulance when there is a violation, and does not report it. Commissioner Ellis inquired what are the odds of something like that happening and the employee being the only one to see it because he would have at least one other person with him. Commissioner Cook stated there is a reluctance to report your employer for a violation; that is why federal laws protect employees who report violations from retribution; if it is not part of the employees? job descriptions, it should be; and there should be some policy that encourages employees to report problems because these are health and safety issues. Mr. Jenkins noted that is regardless of who the violator may be; with Commissioner Cook agreeing. Commissioner O'Brien stated he agrees; and Chief Farmer advised records of complaints are kept, but it will be necessary to go through the complaint file for Harbor City Ambulance to determine how many are from County employees.

Commissioner Ellis stated he does not understand how this issue came up in the first place. Ms. Wilson stated another issue was investigated; there was disciplinary action to be considered which raised the issue of conflict of interest; a number of other issues in the Public Safety Department were reviewed because that conflict came up; and there was concern based on how the conflict of interest law was developed over the years. She stated in addition, it was an issue in the union contract negotiations. Commissioner Cook inquired who requested the opinion; with Ms. Wilson responding the Board directed staff to seek this. Commissioner Ellis stated the Board did not dream up the problem, and no Commissioner generated an agenda item requesting a conflict of interest opinion. Commissioner O'Brien advised this all started during Board discussion about negotiations with the union. Commissioner Ellis inquired how did it end up as a negotiating point with the union; with Mr. Jenkins responding Public Safety Management initiated it as an issue.

Commissioner Cook inquired if there are five or six individuals who would fall under this; with Mr. Jenkins responding that is with Harbor City, and Coastal has no fire fighters. Commissioner Cook stated there is no way to prohibit anyone from having dual employment. Mr. Knox stated the Board can adopt an ordinance that would authorize it. Commissioner Cook stated if they are allowed, the Board would have to allow everybody. Commissioner O'Brien stated this only concerns five or six County employees; with Commissioner Ellis inquiring how many is it affecting. Commissioner Cook stated his concern is how many more of these will come up in the future; if someone was working for someone at night, there would be a reluctance to report a violation about that employer when working for another agency during the day; that is common; and that is his concern. He inquired how many more people would be in this situation. Commissioner Ellis stated anyone who works in the Health Department is in this situation automatically no matter where he works because there can be health violations in any business. Chairman Higgs stated the distinction Ms. Wilson drew was that the County has a contractual relationship with Harbor City, whereas with most other people, there is not that contractual relationship. Commissioner Ellis stated the basis of the report is regulatory more than contractual; his understanding of Paragraph 1 is that the County is in a regulatory position over ambulances; and based on that, it would apply to the Building Department, Health Department, and Law Enforcement. Ms. Wilson stated that stems from the contract. Commissioner Cook stated the County grants the franchise. Commissioner Ellis stated the County grants occupational licenses; it is still in a position of having a regulatory authority; and if the Board looks at anyone in the County who is in a position of sometimes having regulatory authority, it would affect their second job. Mr.

Jenkins stated he is not sure there is any more undue pressure on someone not to report a protocol violation on his second employer than there is on his first employer; and there is something on record that says that any alleged protocol violation shall be reported to the EMS Commander.

Commissioner Cook stated there might be added pressure because the County grants the franchise; the number of complaints there are might be something the Board considers when it comes back for renewal; and there is a reluctance, even at the County level, which should be mitigated as much as possible. He stated people could report the County if they worked for the County and it violated something; and that is an essential health and safety issue. He stated if he was a fire medic and his lieutenant committed a protocol violation, he should feel free to report him and be assured there would be no repercussions; and if a policy is needed on that, the Board should do it.

Chairman Higgs stated what the Board has to decide today is whether or not to appeal; and if it appeals, it should be ready to adopt an ordinance to waive the potential conflict.

Commissioner Ellis stated the Board is going to have to move for appeal; if he was a fireman and this happened to him, the first thing he would say is what about every other fireman with a part-time job; if a fireman sees a Code violation, he should report it whether he works at 7-Eleven, or Jai a-lai or Mack?s Diner; that gets back to reporting a second employer; and the Board is going to open a door to be challenged about everyone?s second job. Commissioner O'Brien stated it creates a Nazi atmosphere to turn in your employer and be a good boy; and that is not the Board?s purpose.

Motion by Commissioner Ellis, seconded by Commissioner O'Brien, to authorize appeal of the Ethics Commission?s opinion on County fire fighters employed by ambulance companies.

Commissioner Cook stated this is important because it deals with people?s lives; under normal circumstances, he would not be as concerned; but if someone is working for an ambulance service and also working for the County, and the County has franchised the ambulance service, and there is a violation which the employee is reluctant to report, then people?s lives are in the balance. He stated if the Board decides not to appeal this, it would have the effect of prohibiting dual employment. Mr. Knox stated it would prohibit it as to the particular individuals involved. Chairman Higgs inquired if it would prohibit it in regard to a contractor of the County; with Mr. Knox responding it would only be prohibited in this particular set of circumstances. Chairman Higgs stated if someone wanted to work for Palm Bay or anybody else, that would not be a problem. Commissioner Cook stated that is right, but they could not work in this particular situation. Mr. Knox stated he understands this logic could be applied elsewhere and everybody would be affected by it; staff has said the effect of the opinion only goes to the specific circumstances given; and to the extent that it applies elsewhere, it is a precedent.

Commissioner Cook inquired if it is not allowed, can the Board make it effective a year from this date. He stated he does not want to cut the incomes of five employees immediately; and if this is going to be County policy, there should be some time to seek other employment with someone not regulated under this opinion. Mr. Knox stated if the Board does not appeal, the employees will be affected by it immediately; but if it is appealed, it would not take effect until the appeal is resolved. Commissioner Cook stated he is going to vote against the appeal; but if there is no appeal, he would like the County to allow the employees six months to a year to terminate their employment with the outside agency. Mr. Knox explained the County can allowed it, but this is not a County issue; it is an ethics issue of the individual employees affected by it. Commissioner Cook inquired if the Board can send a letter advising that because of what the Commission on Ethics has decided, the Board wants them to terminate employment within a reasonable amount of time. Commissioner O'Brien suggested dictating an exact amount of time as the word reasonable can be elastic. Commissioner Cook stated one year is reasonable; the opinion of the Ethics Commission has some validity; but he does not want to create financial hardship immediately for the employees involved; and he wants to give them an opportunity to find another job, if they need the income.

Chairman Higgs stated Commissioner Cook is asking whether there can be an ordinance waiving the conflict for a six-month grace period; with Mr. Knox responding no. Mr. Knox stated informally the Board can say it would like to have the employees find other work within a year; but if someone files a charge against one of the individuals, what the Board said to the employees in terms of letting it go for a year would not have any effect, and the individual could still be prosecuted on the evidence. Chairman Higgs inquired if the individuals can appeal this decision; with Mr. Knox responding the individuals who are affected could probably appeal. Commissioner Cook stated the union could appeal; with Chairman Higgs noting the union does not want to appeal, but the individuals could appeal. Commissioner Ellis stated they could appeal if they could afford an attorney. Commissioner Cook inquired if the appeal would require an attorney; with Mr. Knox responding probably, as they would have to go to the District Court of Appeal. Commissioner Ellis noted that would be $200 an hour to drive to Daytona Beach or Tallahassee. He stated according to Paragraph 1 of the opinion, such employees are expected to report deviations from protocol while at Fire Rescue; and inquired if that applies to every fireman in the County. He inquired if he was a fire fighter and saw boxes stacked in front of a fire exit at Sams, would it be his job to report it. Chief Farmer stated that is not protocol but a life safety code issue. Commissioner Ellis inquired what is protocol; with Chief Farmer responding protocol refers to the medical protocol developed by Dr. Mills that says "x, y and z" will be done when a certain type of incident is presented, and it has nothing with life safety codes. Commissioner Ellis stated it says important deviations from protocol or law. Chief Farmer advised it centered around EMS commission, having to do with Florida Statute 401, Florida Administrative Code 10-D, and Dr. Mills? protocol, and it has nothing to do with life safety codes. Commissioner Ellis noted that may not have been the intention, but he is reading straight from the opinion. Chief Farmer stated the circumstances that were presented to the Ethics Commission solely dealt with that issue; with Commissioner Ellis advising that is not the opinion the County got back; and what was requested was something narrow in nature, but what came back was something broad in nature. He stated the opinion says "expected to report deviations in protocol or law to County Fire Rescue; and inquired if a fire fighter goes into Sams and sees boxes stacked in front of a fire exit, is he expected to report that to Fire Rescue even though it is not in the job description, and what if the fire fighter?s second job is at Sams. Ms. Wilson stated the fire fighter would not be operating in the same function; if he was a packer and not a fireman for Sams, there would not be a conflict; and the Statute speaks to the conflict inherent in the type of job and contract a person or entity has with that business. She noted there is no contract between Sams and the County. Commissioner Ellis inquired if the contract states that everyone in the Fire Department is to regulate Harbor City Ambulance; with Ms. Wilson responding the contract does not specifically state that, but it is the expectation that is internal to the Department. She stated it has been deemed that the lowest common denominator is the Fire Rescue Division; and the Division?s expectation of employees is what creates that conflict. Commissioner Ellis stated he sees the same thing applying to all fire fighters; he can understand that fire inspectors would have to be careful not to perform inspections in the business where they work their second jobs; but now it has been broken down between the upper level and the bottom rung and applies to all fire fighters across the board.

Mr. Jenkins inquired if the County enters into contracts with municipalities to provide fire medic services, will the County?s fire medics be precluded from working for anybody as a fire medic; with Ms. Wilson responding there is that potential.

Commissioner Cook stated according to the memorandum from Ms. Wilson, even though the employees were indemnified by Coastal and Harbor City, there could still be County liability. Ms. Wilson advised she does not understand that portion of the opinion. Commissioner Ellis indicated disagreement with paragraph 2; and stated anyone could have a second job flipping hamburgers and spill hot coffee on someone. Ms. Wilson stated the reason on which the Ethics Commission based its opinion with respect to the ability to refer, which is not necessarily present with Harbor City and the expectation of the employee, is that the employees would report violations in protocol; and those are what she looked at more so than indemnification.

Commissioner Ellis stated he still does not understand how all this got started; the County tries to keep morale up in the Public Safety Department and keep people on the job; and he does not see why the Board would cut back on their opportunity to work.

Commissioner Cook stated he is going to vote against the motion; and if the Board does this, he wants to give the employees a reasonable amount of time before it is put into effect. Chairman Higgs advised she will vote with Commissioner Cook on the issue.

Ms. Wilson advised the County, as the employer, would give the employees a certain period of time in terms of not taking any disciplinary action; however, the County cannot bind the Commission on Ethics or anybody who files a complaint with the Commission against the potential violation of State law. Commissioner Ellis inquired if the County is not in complicity if it knows it is not supposed to do that, but does it. Ms. Wilson stated the obligation and duty is that of the employee. Commissioner O'Brien stated to avoid further legal problems, the Board should say nothing; certain people know what to tell their employees about what they can and cannot do; this only involves five people; and the Board is better off saying nothing and letting the word get out.

Chairman Higgs called for a vote on the motion to appeal. Motion carried and ordered. Commissioners Scarborough, O'Brien and Ellis voted aye; Commissioners Higgs and Cook voted nay.

Chairman Higgs stated the direction will be to appeal; and the Board will wait until it gets that information back from the Ethics Commission before taking any other steps.

Commissioner O'Brien stated it was reported on the television and in the newspaper, that Tony Johnson was arrested at the Airport; Mr. Johnson is the same person who alluded that one of the Commission appointees should be removed from the CAC before conviction; and Mr. Johnson is a member of the MPO, appointed by the City of Cocoa Beach, and not just a volunteer from the outside. He stated he is not asking the Board to take any action today; but a person who espouses a philosophy so strongly as Mr. Johnson did should have to live by it personally.

Commissioner Cook stated elected officials have an even higher standard than unpaid volunteer appointees; there is so much interest in who serves on the CAC; but there should be more interest in an elected official who actually sets policy and makes decisions. He stated it can be discussed at next month?s MPO meeting. Commissioner Scarborough suggested letting things go; and stated there has been too much said about people?s personalities which is not constructive, and it is unfortunate. Commissioner Cook concurred. Commissioner Ellis stated when Mr. Malone comes up to have his dispute with Ms. Scott, he is sure Mr. Johnson will be coming up. Commissioner O'Brien stated if someone has a problem with an appointment, he should request the person making the appointment reconsider the appointment, rather than asking the MPO to work on it. Commissioner Cook stated he walked in unaware of the debate that had ensued.

Commissioner Ellis stated in Melbourne and Palm Bay, there are majority rules types of boards instead of the way the County makes appointments; but it is better to have each Commissioner make an individual appointment, which is not questioned by the other Commissioners, because diversity is needed on the advisory boards. He stated in Melbourne and Palm Bay, the advisory boards are appointed as a whole; whoever controls the majority of the City Council, controls all the appointments for all the advisory boards; and there is no diversity. Chairman Higgs stated she does not recall having voted against any appointment in her three years, other than Mr. Nelson. Commissioner O'Brien stated the members should not do that; and if there is a problem with an appointee, the appointing member can be requested to do something. Chairman Higgs noted she cannot call a fellow Commissioner to ask that. Commissioner Ellis suggested sending a memorandum. Commissioner Cook suggested stating it at a public meeting. Commissioner Ellis inquired if a background check is going to be done on everybody and rules established, noting he does not want to do that either. Commissioner O'Brien noted he has nothing against Mr. Johnson personally, but those who cast the first stone should be without sin themselves. Discussion ensued on the problem.

Commissioner Scarborough stated he does not see why the Board should discuss this. Chairman Higgs noted she was sorry Mr. Johnson brought the issue to the MPO. Commissioner Cook stated he was sorry to see the MPO get mired; there are important issues the MPO deals with; and twice it has become mired in these things. Commissioner Ellis stated the sad thing is going to be for some of the public to say the Commission would not remove Mr. Nelson and now it will not remove Mr. Johnson. Commissioner Cook stated most people voted to retain Mr. Nelson; he had not had his trial; and most members wanted to wait and see what happened after the trial. He stated Mr. Nelson said he would resign if he pled guilty, and after the trial he did. Commissioner Ellis stated he feels the same way with Tony Johnson; it is his decision; and if he stays all the way to trial, he has no problem with that. Commissioner O'Brien stated Mr. Johnson is an appointee of the City of Cocoa Beach; and the City can be requested to change its appointee. Commissioner Ellis stated according to the legal opinion, he could be removed; with Commissioner O'Brien advising he does not want to do that. Commissioner Ellis stated he does not want to do that to anyone.

Commissioner Scarborough stated the Board discussed the Jess Parrish issue and directed the County Attorney to look into things; he thought it was a private action; but after the meeting, it came to his attention that Mr. Baker?s attorney is being paid by the Hospital. He stated he would like Mr. Knox to look into that as well in terms of where a private action begins and ends; and that may be an issue that will have to be confronted.

Commissioner Cook stated that weighed heavy on his opinion not to send someone; and he had the impression it was a private action. Chairman Higgs noted she thought it was private. Commissioner O'Brien stated the memorandum from Parrish Medical Center insinuated that; and inquired if the Hospital led the Board astray. County Attorney Scott Knox stated he received some minutes a few days later that indicated the Hospital had approved paying the bill. Commissioner O'Brien stated it came out after the Board meeting so the Board cannot take further action; games are being played; and they are games that may affect the public. He stated the letter in the newspaper said the fight about Bea Polk and Ida Blickley was affecting the community and the ability of the Hospital to perform; but it is not, because the facility still has a certain number of rooms, patients and doctors and equipment that works fine. Commissioner Ellis noted Ms. Polk and Ms. Blickley did not sue Mr. Baker; and inquired who started the fight. Chairman Higgs noted Mr. Baker is not suing Ms. Polk or Ms. Blickley; and he just wanted to take their deposition at this point. Commissioner O'Brien stated when someone starts discovery, he is headed for something.

Upon motion and vote, the meeting adjourned at 11:14 a.m.

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ATTEST: NANCY N. HIGGS, CHAIRMAN

BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

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SANDY CRAWFORD, CLERK

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