Attendee Name	Title	Status	Arrived
Robin Fisher	Vice Chairman/ Commissioner District 1	Present
Chuck Nelson	Commissioner District 2	Present
Trudie Infantini	Commissioner District 3	Present
Mary Bolin	Chairman / Commissioner District 4	Present
Andy Anderson	Commissioner District 5	Present

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INVOCATION

The Invocation was given by Reverend Rob Goodridge, Rector, St. Gabriel's Episcopal Church, Titusville, Florida.

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PLEDGE OF ALLEGIANCE

The Pledge of Allegiance was given by Commissioner Chuck Nelson, District 2.

 

APPROVAL OF MINUTES

The Board approved the minutes of the July 8, 2010 E-Town Hall Meeting.

 

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RESOLUTION, RE:  APPRECIATION TO REPRESENTATIVE RALPH POPPELL

Commissioner Fisher read aloud a resolution expressing appreciation to Representative Ralph Poppell.

 

The Board adopted Resolution No. 10-135, expressing appreciation to Representative Ralph Poppell for his years of outstanding commitment and dedicated service to the citizens of Brevard County.

 

 

Representative Ralph Poppell stated he learned a lot; enjoyed the time spent in Brevard County; he would not change one thing in his life; and expressed his appreciation to all the people in Brevard County. 

 

Commissioner Nelson stated Representative Poppell had the misfortune of having a piece of every district in Brevard County; he has always been there for each Commissioner; and stated his appreciation for being kind of a mentor to him in Tallahassee.

 

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PRESENTATION BY MARTHA BROWN, U.S. CENSUS BUREAU, RE:  2010 CENSUS COMPLETE COUNT COMMITTEE

 

Martha Brown, U.S. Census Bureau, stated she is here to present some awards; she represents the Regional Director and she read a letter, "Dear Partners, This letter is to express appreciation for the support and helping the U.S. Census Bureau to achieve and complete an accurate count for Census 2010.  Conducting the decennial Census is a massive and vitally important undertaking, one which the Census Bureau could only accomplish with the assistance and support of partners like you.  We value the time and the resources you dedicated in helping to ensure a successful 2010 Census.  Your commitment to motivate the public, to complete, fill out, and return the form, will have a lasting impact.  As a Census partner, you can take pride in knowing that the civil involvement demonstrated by you helped insure that the contribution and unparalleled effort to the 2010 Census to ensure that Florida residents are accurately reflected in the 2010 portrait of America.  Sincerely, George Grandy, Jr., Atlanta Regional Director of the U.S. Census Bureau."  She advised she wanted to call forward those partners who were so helpful on the Board's behalf, Kimberly Prosser; Carl Finerson, Chair; Lori Scott; and Denise Carter.  She went on to add Brevard County had over five percent response greater than in the past.  

 

The Board acknowledged presentation of Martha Brown, U. S. Census Bureau Senior Partnership Specialist, recognizing the leadership of the 2010 Census Complete County Committee, consisting of Carl Finerson, Chair; Denise Carter, Vice Chair; Lori Scott, Supervisor of Elections; and Kimberly Prosser, Census Committee Coordinator.

 

RESOLUTION, RE:  RECOGNIZING AND COMMENDING RANDY THOMPSON FOR 33 YEARS OF LOYAL AND DEDICATED SERVICE TO BREVARD COUNTY

Commissioner Fisher read aloud a resolution commending Randy Thompson for 33 years of service.

 

The Board adopted Resolution No. 10-136 recognizing and commending Randy Thompson for his 33 years of loyal and dedicated service to Brevard County; and wished him many years of good health and prosperity in his retirement.

 

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RESOLUTION, RE:  RECOGNIZING EAGLE SCOUT MATTHEW FERLAND

Chairman Bolin read aloud a resolution recognizing Eagle Scout Matthew Ferland.

 

Matthew Ferland stated his project was landscaping; and he had to arrange plants and get funding from Brevard Community Kitchen and Keep Brevard Beautiful. 

 

The Board adopted Resolution No. 10-137, recognizing Matthew Ferland for his accomplishments as an Eagle Scout.

 

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RESOLUTION, RE:  RECOGNIZING THE VOLUNTEERS AND INVESTORS OF THE ECONOMIC DEVELOPMENT COMMISSION OF THE SPACE COAST, FLORIDA

Commissioner Anderson read aloud a resolution recognizing volunteers and investors of the Economic Development Commission of the Space Coast.

 

A representative of the EDC stated it is a great experience to work with his piers, the County Commission, and with Lynda Weatherman and staff to do things that are good for the County; there are opportunities and challenges ahead; but he is confident they can turn the challenges into opportunities; and the future is very bright for Brevard County.

 

The Board adopted Resolution No. 10-138, recognizing the volunteers and investors of the Economic Development Commission of the Space Coast, Florida.

 

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RESOLUTION, RE:  CONGRATULATING THE VIERA/SUNTREE LITTLE LEAGUE ALL-STARS

Chairman Bolin read aloud a resolution congratulating the Viera/Suntree Little League All-Stars.

 

Mark Muzzi, Team Manager, expressed appreciation to the Board and all of Brevard County for all of the support the team received; when they were in Georgia they heard about bars in Viera being packed and people watching the games; and that was an amazing experience for the team members.  He expressed his appreciation for all of the facilities the County provided as it promotes recreation sports.  

 

The Board adopted Resolution No. 10-139, congratulating the Viera/Suntree Little League All-Stars for their 2010 State Little League Championship in Crystal River, Florida, on August 1, 2010.

 

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County Attorney Scott Knox stated as the Board knows, the Charter Review Commission met over the past year or so trying to develop a series of proposed Charter Amendments; under the Brevard County Charter, enacted and adopted by the people of Brevard County, those amendments have to be submitted to a legal panel review by three lawyers qualified in the area of local government law for determination as to whether the amendments are consistent with State Law; they are single subject, and they met the Constitutional requirements of the State of Florida; and that review was conducted for the four amendments submitted by the Charter Review Commission by a panel consisting of Lonnie Groot, Allen Watts, and Carolyn Ansay who are present today to answer any questions the Board may have regarding the matter.  He stated to summarize their findings, they basically found that all but one of the amendments met the requirements of the Constitution and the State of Florida Laws in the Charter Provisions; the one that they did not find to meet those requirements was the municipal referendum approval of Charter Amendments; and that provision they unanimously found to be in violation of the Constitution.  He went on to say according to the provisions of the Charter, the ones that passed the legal panel review get placed on the ballot by the Board; staff has a resolution prepared to accomplish that; and the one amendment that was rejected by the panel unanimously does not go forward.

 

Kendall Moore, Chairman of the Charter Review Commission, expressed his appreciation to the Board for the three individuals it brought forward to serve on the committee; stated it was a divergent group of views, of opinions, but everyone would agree that the process was very fair, intense at many times, but one that they took the opportunity to review all elements of the Charter; this only happens every six years, so they wanted to make sure that they not only followed all of the rules and regulations that were required, but ensure to look at everything that was possible; there were sixty or more potential proposals that were put forward before the committee; and they were not here until 3:00 a.m. but they were certainly here until after midnight on many occasions debating those issues.  He added Attorney Knox put before the Board those proposals that did not make it through the process; he can tell by the stack of cards that the Board will have discussion today from the three-judge panel, as well as from many others that may have comments related to the proposals brought before the Board; and he again expressed his appreciation to the Board and to the Committee Members for the amount of time, effort, and energy they put forward.

 

Georgia Phillips, Councilwoman with the City of Rockledge, stated she is present to ask the Board to view the City's opinion with an open mind; the City did not have time to get the written opinions back to the Board; there is a lot of support for this; she attended every one of the Charter Review Commission meetings; there was a lot of support for this item; and requested the Board have an open mind to consider the side of the people who reside within Brevard County, and give them the right to vote on their own destiny.  She advised the list of who the City will have speaking is from Space Coast League of Cities; Attorney Paul Gougelman, Attorney Jack Kirschenbaum, Attorney John Shubin, Attorney Bob Ginsburg, James Tulley, and Milo Zonka from the City of Palm Bay. 

 

Paul Gougelman, Attorney for the Space Coast League of Cities, stated there are a number of speakers who will speak to the Board on a number of aspects of the Charter Amendment regarding municipal consent with regard to Charter Proposals affecting municipalities that was recommended by a 12:1 vote of the Charter Review Commission; and as County Attorney Knox mentioned, did not make it through the legal review panel.  He stated the one thing he has been asked to do is kind of set as a foundation for the Board to understand the amendment, where it comes from, and why it is needed; and that may give the Board a little historical background as it considers the situation.  He went on to state he had the pleasure and honor of Chairing the original Charter Commission that drafted the Charter back in the early 1990's; one of the things they put in that Charter in Section 1.7 was a provision that deals with the relationship of county ordinances and city ordinances; does a county ordinance prevail inside of the city limits of any municipality; and that is what that provision dealt with.  He advised there was another provision that did not get put in, and the reason is because they were not quite sure how to deal with it, and frankly kind of ran out of time; that provision was the concept of trying to find some way of dealing with charter amendments that might somehow preempt municipal power within the city limits of a municipality; that is why this particular amendment was considered by the Charter Review Commission; and it is basically work that was leftover from the original Charter Commission.  He stated the other question that some of the Board Members may have from what he has heard is how the amendment would actually affect the Charter and the relationship between the cities and the County; and the answer to that is in probably 99.9 percent of all cases of any charter proposal, it would not even come into play.  He advised it would only deal with charter proposals and not ordinances that actually try to preempt or take regulatory power of the municipality from that municipality invested in the hands of the County; they really do not have that in Brevard County, but in some instances around the State where this has occurred; there are some counties that have basically preempted two county commissions the power to regulate and take that power away from the municipalities; in Broward County its Charter takes density control and some land planning aspects away from the cities; in Orange and possibly Volusia Counties, certain environmental regulatory power has been taken; there are a few other instances around the State; and that is why the Space Coast League of Cities and the Charter Review Commission considered this proposal.

 

Commissioner Anderson stated there is not a bigger advocate for Home Rule than he.  He stated the Brevard County Charter has two conflicting sections, one is the Brevard County Commission shall adopt the recommendations of the Charter Review Commission, and the other one says it must abide by the three-lawyer panel on their recommendations; and in this case all three of the attorneys said it was not consistent with State Law, the Florida Constitution, and Brevard County's Charter.  He went on to add he does not want to violate the County Charter; it is like the County's Constitution; and he does not want to set that precedent by violating the Charter.

 

Mr. Gougelman advised the short answer is if the Board looks literally at the wording of the Charter, the attorney review provision states that if two of the attorneys find it meets the requirements and is constitutional, then it shall go on the ballot; what the Charter is silent on is what will happen if the attorneys disagree with it and find it unconstitutional; two of the attorneys he has known for 30 years; but the fact of the matter is they are attorneys, not judges.  He added it does not make sense to keep stuff off of the ballot; it says non-judges will make a determination of whether they think something is not constitutional and will take the right to vote away from the people; frankly, it does not quite square with his concept of government; and he suspects that the Board should be doing soul searching regarding why he or she would be taking away the vote of the people. 

 

Attorney Jack Kirschenbaum, representing the Space Coast League of Cities, stated he understands precisely how important this is; constitutional issues are being dealt with; and he thinks that is why everyone is so concerned.  He added he has been told that every speech has to have a theme and this theme is, 'Let the Voters Decide'.  He stated the Charter Commission Voted 12:1 to place a municipal self-government referendum on the Charter; before a city's right to govern itself, the residents of that city get a separate referendum so that their voices can be heard on happenings in their community, which is the fundamental issue the Board is dealing with; the proposed provision exists in one form or another in at least three counties; opinions are a lot like noses, everyone has one, even the Attorney General of the State of Florida's opinion is merely the opinion of another lawyer; and that is why there is Article V in the judicial system.  He went on to state three lawyers hired by the County have opined that the proposed amendment is unconstitutional; far more than that, at least three others have opined that the proposed amendment is constitutional; particularly in light of Commissioner Anderson's concerns, it leads back to letting the voters decide; not all problems are predicted by charters and ordinances; and there are always conflicts.  He went on to add there is no case in Florida deciding that the municipal self-government referendum is unconstitutional; neither case relied on by the three lawyers deal precisely with this type of situation; in one case that was filed in Pinellas County, the County settled the suit and the provision remains having been stipulated as constitutional; in the other case, Alachua, where the issue was being litigated, no resolution has been reached in that lawsuit yet; and all three of the County's attorneys opinions are based on yet another lawyers opinion, which is now being tested in court.  He stated perhaps the pending cases unknown to all and the outcome will not be known for some time; lawyers often have different opinions about the constitutionality of laws; and that is, in fact, why there is court.  He stated to let the voters decide; the Florida Constitution strongly favors referenda, and the Supreme Court has almost always agreed; it is okay for charters to have extra conditions for amending charters even if those charters are not mentioned in the Constitution; there is no mention of the panel or the conflict; there is no mention except here; and this is an issue that must be resolved on a bigger basis.  He went on to say there is no one threatening to sue to stop the implementation of this provision; there is no harm, no opposition, no clear legal precedent, and a strong preference for letting the voters decide what the Board should do.

 

Commissioner Nelson inquired if Mr. Kirschenbaum is asking the Board to ignore one part of the Charter to change a different part of the Charter; stated issues aside, the Board is going to forego following one part of the Charter, which says the County has this group so it can then change that; and to him, it seems a little bit of a conflict.  He went on to say the simple solution would have been to get rid of the panel, and that way anything that comes before the Board gets sent to ballot; but he is struggling with the fact the Board has to overlook a piece of the Charter to change the Charter.  Mr. Kirschenbaum stated he would submit that if the Board reads that provision closely, it does not prohibit it from placing this on the ballot; the language specifically is designed, in his view, as guidance; but it does not say the Board cannot put this on the ballot.  Commissioner Nelson inquired if Mr. Kirschenbaum does not see an inconsistency with having a panel that was appointed by the Board create an item to go on the ballot; stated he believes it is opening up a huge can of worms; there may be something that needs to be fixed; but he is not sure ignoring a part of the Charter is the fix.  Mr. Kirschenbaum stated he thinks the Board has an inconsistency as opposed to insurmountable conflict in the Charter; they believe the way to fix it now is to let the voters decide; if it can be fixed another way later, to do that; right now the Board is dealing with fundamental rights of individuals in municipalities and it ought not take their ability to help decide those issues away from them.  Commissioner Nelson stated he understands Mr. Kirschenbaum's argument, but he is also telling the Board that it has three attorneys that say it is unconstitutional, ignore them and put it on the ballot; the one thing that is required by the Charter is the review by the panel; and Mr. Kirschenbaum is asking the Board to knowingly approve something the panel says is unconstitutional.  He inquired how many other unconstitutional things he wants the Board to support.  Mr. Kirschenbaum advised their opinion, with all due respect, does not make it unconstitutional.  Commissioner Nelson noted the court system is the right place to get the answer; the problem is he worries that while there may not be someone lined up now to sue, clearly in other counties someone did; and inquired why the Board would not be advised to wait until that has run its course so the Board knows what the appropriate wording should be, limitations, or why would he not want to know based on an outcome rather than just throwing itself into that no mans land.  Mr. Kirschenbaum advised he has tremendous faith in the judicial system, otherwise he would not do what he does; this is important and the Board should not wait; the Board has three lawyers who have given it advice; he is sure Attorney Knox wishes every time he gives the Board advice it would take it; but it is the Board's decision, in some instances when there are inconsistencies in its originating documents, that it has to make that tough choice.  Commissioner Nelson inquired if the Board is able to ignore a portion of the Charter why it cannot ignore the part that says it has to do it immediately and await the outcome of one of those court cases.  Mt. Kirschenbaum responded the Board is going to end up ignoring one part of the Charter or another no matter what decision it makes; and stated that is what happens when humans draft documents as they cannot see every possible scenario that will play out.

 

Commissioner Anderson requested Attorney Knox read into the record the portion of the Charter regarding the three-attorney panel. 

 

Attorney Knox advised the people of Brevard County approved the Charter Amendment that created this legal panel; and it would be ignoring the people's will if it ignores the amendment.  Attorney Knox read the language into the record as follows:  "For any proposed amendment sponsored by the County Commission or the Charter Review Commission, the County Commission, at the County's expense, shall empanel a panel of three persons to determine whether the proposed amendment and ballot language embraces one subject only and is consistent with the Florida Constitution General Law and the Charter."  He advised he would emphasize the words used, to determine whether the proposed amendment violates the Constitution.  He stated it goes on to say, "If two or more of the panel members determine it to be Constitutional and valid, it goes on the ballot."

 

John Shubin, Attorney on behalf of the Space Coast League of Cities, advised he is present to bring to the Board probably 20 years of practicing law in the area of charters throughout the State of Florida, particularly in a home rule charter county, a constitutional home rule charter county, and Miami-Dade County.  He stated to him, is a simple question; in over 20 years he has never seen a procedure being interpreted in a way to undermine two of the most fundamental rights in the Constitution, which is the right to petition government and the right to vote; and in the interest of time he is going to try to keep it in a very simple perspective.  He stated the issue not before the Board today is the constitutionality of this amendment; the Board is not a court; the distinguished attorneys who have been hired by the County Attorney are not a court of law; no one can resolve the constitutionality of this issue other than a court of law; and that issue is not before the Board today.  He went to add some of the Board Members may have his or her opinion; people have strong opinions; his firm takes on the opinion that this amendment is completely constitutional; he spoke to five law firms that specialize in this, and they all take the same position; but that is not why they are here.  He stated they are also not here to address the merits of this amendment and if this is good public policy; the Board may have its own opinion; it may think it is good or bad public policy; he served on two charter review commissions in Miami-Dade County; there were a lot of amendments that he thought were appropriate to put on the ballot that he did not vote for himself; but that is not the issue before the Board today.  He advised if the Board believes it is bad public policy, it has the right and the obligation to campaign against it once it goes to a vote; the Board is here as the custodians of these fundamental rights, the right to vote and the right to petition; and it is here as the custodian, not as the gatekeeper.  He went on to say the law is very clear; unless an amendment is unconstitutional in its entirety, that is the law, it must go to a vote; by looking through the three opinions, not one of them says that this amendment is unconstitutional in its entirety; many of them said it was constitutional; this, to him, is a very easy decision to the Board, whether it does or does not; and the Board is the custodian of the people's rights, not a gatekeeper. 

 

Commissioner Anderson stated he thinks it is a great amendment; and he is a former city council member.  He inquired if the Board is just reviewing whether the amendment is consistent with its Charter.  Attorney Knox advised the Board is not even present to do that; stated the Board is not the gatekeeper in this case; and the gatekeeper's set up by the Charter are the legal panel.  Commissioner Anderson inquired if the legal panel specifically prohibits the Board from putting something on the ballot; with Attorney Knox responding the legal panel has taken a unanimous position that this is unconstitutional; and stated whether they agree with these folks or not, that is a different issue.  Commissioner Anderson went on to say in reference to the Brevard County Charter, the language does not absolutely prohibit the Board from taking action; and the Board has to fix this in the future.  Attorney Knox stated he agreed; it is fairly evident to people who read this, the Charter Review Commission amendments had to be reviewed by the three-member legal panel; and the fact is there has to be two attorney's on the panel to approve it to get on the ballot.  He added he would not advise the Board to put it on the ballot in violation of the Charter.  Commissioner Anderson stated the Board is sworn to uphold the Constitutions of the United States and Florida and then the Charter of Brevard County; and he wants to help everyone out, but he does not see how he can do it without violating the Charter.

 

Mr. Shubin read Section 7.4, "After you go through the recommendation process of the Charter Review Commission, the Board of County Commissioners shall schedule a referendum on the proposed Charter Amendments concurrent with the next general election."  He advised it says 'shall' so there is no question about it.  He further went on to read, "If at least two members of the panel find that the proposed amendment embraces only one subject and is consistent with the Florida Constitution, General Law in this Charter, the County Commission shall place the proposed Charter Amendment on the ballot for consideration of a referendum at a special election held concurrently with the next countywide election or at an earlier special election called for that purpose."  He inquired how to reconcile the two; stated for a special election, there would need to be two positive recommendations; and it did not say that in the absence of two positive recommendations the primary provision of the Charter, the one that protects the right to petition, the right to vote, is undermined.  He stated to the extent the Board interprets the provision to undermine the petition rights of the citizens, to undermine the voting rights by delegating it to private individuals, no matter how well intentioned they are, that is an unconstitutional infringement on the right to petition; the Board is dealing with the most sacred rights in this country, a clear provision and an ambiguous provision; he thinks the Board's choice is clear; and if it does not like it, campaign against it. 

 

Commissioner Nelson stated Mr. Shubin is now saying that the County Charter is unconstitutional.  Mr. Shubin stated no.  Commissioner Nelson stated to amend the Constitution of the State of Florida, the Florida Legislature, and ultimately the citizens, decide to take 60 percent, not 50 percent plus one; there is no choice of 59.5, to be close enough; inquired if the absolute right is the majority, yet the Legislature has created the ability to put limitations on that; and stated he does not see how people can pick and choose.  He stated he agrees it needs to be fixed because it is an absolute mess; if people are going to ignore parts of the Charter, ignore the part that says it has to be done immediately and wait for an outcome that clearly gives word; he supports the item and having cities have the say; but he does not support ignoring pieces of the Charter; and that is a dangerous place to be, because once that is done, which ones are not followed at that point.

 

Mr. Shubin stated by putting it on the ballot the Board is not ignoring a contrary provision in the Charter; the Florida Constitution is a great example; inquired who is the gatekeeper of the single subject requirement; and answered it is the Florida Supreme Court, not the Legislature and not the Senate.  He went on to say that is a perfect example of why he thinks this needs to be put on the ballot, and has to be put on the ballot; and the Board is compelled to under its own Charter.

 

Commissioner Infantini inquired if the attorney panel agreed that it was a single subject; with Mr. Shubin advising affirmatively.  Commissioner Infantini stated in the Charter it says, "If two or more members agree that it is constitutional, the Board shall put it on the ballot."  She advised what it does not say is the Board shall not put it on the ballot if it is not determined to be constitutional.  She stated the voters should decide what goes on in their jurisdictions; she does not understand why the County is trying to overstep in areas it is not regulating; and she sees the cities side of the law.  Mr. Shubin stated there is language regarding the 12:1 vote of the Charter Commission, that the Board shall schedule a referendum; and it is not just the absence of the prohibition, it is the affirmatively obligation in the first section when there is a 12:1 recommendation from the Charter Review Commission.

 

Commissioner Nelson inquired what if it was 1:12; and stated he thinks the Board is doing its own self-interpretations of what that means.

 

Robert Ginsburg stated he was the Miami-Dade County Attorney for 25 years, from 1980 to 2005; and he has dealt with and litigated many of these issues.  He stated he read the opinions several times; after reading the opinions enough, it begins to sound like a Yale Law School seminar; it is law school on the one hand and the real world on the other; and in the real world, this is not a revolutionary position or proposal for the citizens of Brevard County or the State of Florida.  He went on to add it is already in several charters.  He stated he is going to read a clause from the Miami-Dade Charter; this is in an article entitled, Parks, Aquatic Preserves, and Preservation Lands; there are four pages in the charter dealing with restrictions, what governments can and cannot do with respect to those properties; not just the county government but the municipalities as well; and the very last clause of that article in the charter says, "Provided that if this Article was not favorably voted upon by a majority of the voters voting in any municipality at the time of the adoption of this Article, the municipal parks of this municipality shall be excluded provisions of this article."  He stated they have a provision, adopted by the people of Miami-Dade County, submitted to them and adopted by the people of Dade County in 1993, 17 and 1/2 years ago; it was nothing that was made up for purposes of this hearing; this is now an important decision of the people of the League of Cities; it has been in their charter for almost 18 years; and it is the same concept.  He went on to say the Board can read its charter consistently with Dade County; in Section 7.4, there is the direct sentence that the Board has discussed, "The Mandate the Board of County Commissioners shall schedule a referendum on the proposed Charter Amendments concurrent with the next general election."  He added that is one complete sentence in the Brevard County Charter.  He stated that is followed by 7.4.1 and two paragraphs under that; what the panel does, is a little different, it is not the same thing and not inconsistent with the Mandate in the first paragraph; if the Board gets two of the three panel members to say that it is consistent with the laws of the State of Florida and the Charter, then it has an additional ability to do something that it cannot do in the first paragraph.  He advised that is a way to read the Charter provisions consistently; the Board does not have to take the position that they are inconsistent and that there is no way to deal with both of them; that is the way to do it because that is the way it is written; the Board does not have the power to call a special election, not part of a general election on a proposed charter amendment, unless two of those panel members agree that it is constitutional; and that is the difference between the first and the second.

 

James Tulley, Mayor of the City of Titusville, stated he is speaking as a concerned citizen because this item ought to go to the voters.  He went on to say the single most important thing the Board has heard today is the fact that the lawyers disagree; one team commissioned by the Board has offered the opinion that it is unconstitutional, while others have weighed in to the contrary; he is not a lawyer, he is a computer scientist, at least he was until he took his recent layoff; he lived in a world of binary logic, as opposed to subjective logic, ones and zeros, true and false, so he would offer a different perspective; in his world the opinion offered to the Board by its committee of three might be called a hypothesis; the hypothesis that an item is unconstitutional, but it is a hypothesis that can only be tested in a court of law, which has also been explained to the Board; and until that determination is made, it remains a hypothesis.  He went on to say if the hypothesis is correct, it remains unconstitutional, and the Board keeps it off of the ballot, no harm no foul; if the hypothesis is incorrect, and it is constitutional, and it is put on the ballot, once again no harm no foul, the process has made no error; it is the other two outcomes that are problematic in his mind; if the hypothesis is correct, but considering the differing opinions heard today it is put on the ballot, the process had erred; but it is a correctable error in that it is done in the Sunshine, it is placed before the voters, it will ultimately be challenged in court, and that ruling will stand; and were that the case, the result is identical to not putting it on the balance, except it will have been done in the Sunshine and the voters would have had a chance to weigh in.  He added the fourth outcome is the most problematic of all in his mind, because if the hypothesis is incorrect, that is constitutional, but the Board keeps it off of the ballot, it will not only deny the voters the choice, but it would have erred in a way that it is almost impossible to correct prior to the next Charter review in six years; and that is the thing the Board should be concerned about.  He inquired, given two of the four outcomes lead to errors, which course would be preferred, the correctable one by court ruling later on, or the uncorrectable one because the Board hid it under the covers.  He noted his belief is that the Board will put this proposal on the ballot; it will allow the voters to weigh in; and it will allow the legal process to correct itself when, and should, it become necessary.

 

Milo Zonka inquired why it matters; stated it matters because as the League of Cities get together, they talk about what is going on with one city versus another; he may ask why a city would do something or another; and it is because it fits the character of that town.  He stated everyone by choosing to buy a home in one place or another, made that choice.  He added what the Charter Amendment allows is the voters in each city to decide is whether something that is broadly appropriate or inappropriate is best applicable in that particular town.  He stated he is not going to argue the constitutionality in this; and he has had no ability as a resident of the County to argue with the panel about the constitutionality of this issue.  He went on to say the question that should have been presented to the voters should have been, "Shall three lawyers, none of whom shall be residents of the County and will not conduct public hearings, have sole control over whether the people of Brevard County have permission to vote on matters of self government."  He stated there was a mention from Attorney Knox that there were things that were implicated in the Charter; there was also a statement the Board would be ignoring the Charter; it cannot be said that some things are implicate and others things are the abstract black or white; that is why it needs to be ultimately decided by a court of law; and the only way to get there is to put it on the ballot and see if there is a challenge.  He went on to state the voters' intent in creating this panel was to have checks and balances, not to give it the sole form of decision-making as to whether or not this thing happens, because the Charter clearly says if the attorneys say, two of the three say, that it is appropriate, the Board will put it on the ballot; they have taken that out of the Board's hands; and there is nothing to say that if they do not agree that they have lost their ticket and taken it out of the Board's hands.  He advised the Board makes incredibly difficult decisions based on its judgment all of the time; and inquired how many of those actually get rejected by the voters, not many.  He added the Space Coast League of Cities Board of Directors, last night, had an emergency meeting to discuss this very issue to talk about how to work with the County on this, and they unanimously decided that if the Board puts it on the ballot and it will be voted, it is voted in, and there is a challenge, the Space Coast League of Cities unanimously voted they will intervene on behalf of the County and defend the propriety of this amendment in court.  He stated if the Board makes the decision today to ultimately deny people the right to vote, that he believes is inherent in the County’s Charter, then that is a decision is irrevocable until the next Charter review. 

 

Commissioner Nelson stated his argument would be the citizens already did; it was a compelling argument that should have been made at the time the Charter was put together, because that was put into the Charter at that moment; and the citizens of the County voted and approved what he does not like.  He went on to say, whether he likes it or not, and there may be portions he does not like, the citizens voted on it; and Mr. Zonka and others are asking the Board to question if the voters knew what they were voting on.  Mr. Zonka stated he thinks they knew exactly what they were voting on.  Commissioner Nelson stated they are asking the Board to ignore a previous vote of the citizens of this County to the benefit of those same citizens.  Mr. Zonka stated he rejects that statement because he would never do that.  He added, the fact remains there is a lot of grey here; he has an opinion and Commissioner Nelson has an opinion; the voters decided to emulate the Florida Constitution; but the process to modify it is to do it in a court of law.  Commissioner Nelson stated they both agree it should go on the ballot, but it should be wording that is consistent with the Charter; and that is the point of difference.  Mr. Zonka inquired what the wording should be. 

 

Scott Morgan, City Manager of West Melbourne, stated he is present as a citizen of Brevard County asking for the opportunity to vote on this issue.

 

Lee Feldman, City Manager City of Palm Bay, stated he agrees with the comments of the Space Coast League of Cities.

 

Mayor Carol McCormack, Town of Palm Shores, stated over half of the citizens in the County deserve the right to make this decision; she can listen to the attorneys on both sides; but there obviously are grey areas; she does like the word ‘shall’; and it does say shall give them the right to individuality.  She stated there are 16 municipalities present who represent the people; they were elected just like the Commissioners were; inquired why the residents of Brevard County should be denied the ability to make this decision; the people make this decision; and if it has to go to a court of law, then so be it.  She stated the Board should understand how the cities feel about home rule; it is an important issue; she appreciates the Board speaking for home rule; these are the people who elected the Board and the cities' representatives; and the people should be allowed to decide.

 

Mark Ryan, City of Titusville, stated he is in support of the proposal; it is good public policy to allow the citizens of Brevard to vote as it is their right to decide; and he urged the Board to consider putting this on the ballot.

 

Beth Rawlins, Space Coast League of Cities, reminded the Board of one attorney not mentioned today, and that is the attorney hired by the CRC who crafted the language and put it forward for the CRC’s consideration, who obviously found that it was constitutional and it met the provisions required; and she hopes the Board puts it on the ballot for the people to decide and let the court system do its thing.

 

Kathy Meehan, City Council of Melbourne, stated she agrees with the others speakers on behalf of the Space Coast League of Cities.

 

Stephany Eley, City of West Melbourne, stated she is wearing two hats today; her first hat is she is a geometry teacher; one of the things she teaches her students is to make logical decisions; she teaches conditional statements; and she teaches converse statements, which are the opposite of conditional.  She advised if two attorneys agree it is unconstitutional, then it must be placed on the ballot; it does not mean the converse of that is true, that if two or more have not agreed that it should not be placed on the ballot. She stated it forces the hand and it must be placed on the ballot; it does not say the Board has the right to refuse to put it on the ballot if that condition is not met; and that is what she believes, as a voter, is the case.  She advised Commissioner Infantini spoke eloquently to that issue.  She stated as everyone has said from the cities, it seems to her the logical thing is to allow the voters make the decision.   

 

Commissioner Nelson stated what Ms. Eley is saying is that section is irrelevant; she is saying it can be followed but it does not have to be; and inquired if it does not have any basis for a decision process why is it there.  Ms. Eley responded it does not speak to it; the language is clearly left out; it does not say if there is a majority; and that language is nowhere in there.  Commissioner Nelson stated she is asking to do another interpretation that has no basis anywhere in the Charter.  He inquired why the framers of the Charter did not cover that.  Ms. Eley responded she does not know.  Commissioner Nelson stated he can only go by what is there; and he cannot guess what they were thinking when they approved that. Discussion ensued regarding the differing opinions of Ms. Eley and Commissioner Nelson regarding the Charter Amendment.

 

Attorney Knox stated he tried to find the Resolution that called the special election in 2000 on the issue of whether or not the legal panel should be incorporated into the Charter, which is a separate referendum; it was an amendment to the original Charter; it was voted upon by the citizens of Brevard County in the year 2000; and in reviewing that Resolution, the Charter Review Commission was not included in the original legal panel analysis, that was added later.  He stated looking at the ballot language for the 2000 amendment as it was proposed, it reads, "Shall Section 7.3.2 of Home Rule Charter for Brevard County be amended and substantially worded to establish a procedure that requires a panel to review and determine whether any charter amendment proposed by petition is consistent with the Constitution, General Laws, and Charter."  He went on to say from the ballot language as he sees it, the question proposed to the people of Brevard County in the year 2000 was if they wanted this legal panel to review the charter amendments to determine whether or not they are legal or constitutional, and that was subsequently amended to make the Charter Review Commission subject to the same kind of legal panel review; maybe the lawyers in the audience would have the ability to sit up here and tell the Board that it would not be violating the Charter, but he cannot do that under those circumstances; he thinks that provision is fairly clear that the Charter Review Commission amendments have to be submitted to the same legal panel review; and if it does not pass, it does not go forward.  He added that is his opinion; the Board is free to do what it wants to do; and it can ignore his advice if it wants.

 

Commissioner Infantini stated she is going to go back to what Ms. Eley said and what she said originally; the Charter says the Board ‘shall’, which requires it; words are deliberately left out of charters so that it frees up the hands of the County Commission, rather than restricting it to only allow to go forward with those charter amendments that are proved and determined to be constitutional by that three member panel; in no writing does it ever say that it ‘will not’ permit something to go forward; it just requires the Board to take action and place something on the ballot; and reiterated it does not say the Board is precluded from.  She went on to state to make that interpretation is unlawful of the Board; it is not in the Charter; if the consensus by the Charter Review Commission is 12:1 that they want something to be placed on the ballot, the Board is only reviewing the constitutionality; that can be challenged in court; but the voters have the right to be heard, and she could not possibly take that right away from them.

 

Commissioner Fisher inquired if the attorneys from the panel could speak to the Board; he is curious to hear their side of the argument; the County pays them a lot of money to make opinions; and inquired why they think it is unconstitutional.

 

Allen Watts, Attorney, stated he does not have an opinion of the merit, or lack of merit, of the things that have been discussed; he did not know what amendments were going to be proposed when they volunteered to be on the panel; and when he says the issues coming forward, it was with a lot of trepidation, because he knew they would be facing some of the people present today.  He stated it is the Constitution that says that the Charter should be adopted or amended only at a special election called for that purpose; and the Division of Elections has opined that a special election can be called concurrent with the general election so to be in compliance with that step.  He added the process that created the panel is to sit in judgment on the work of the Charter Review Commission; if they were to ask him that question if it is a good process, he would say no, for the same reasons that were expressed by the municipality leaders, because it presents issues that might, not withstanding the panels judgment, that might be constitutional; and the first eight words of the Constitution are, “All political powers inherent in the people.”  He stated the County has this process, and it can only be repealed, according to the Constitution, by vote of the electors; dealing with the process in place, the panel has rendered its decisions; it places them as if they were judges, and they are not; but they are all experienced.  He explained that he is entering his 40^th year of practice for cities, counties, and school districts; he sat with a dozen or more charter review commissions; and he sat side-by-side with Paul Gougelman when this initial Charter was adopted.  He went on to say he thinks the County’s process is flawed; he does not know whether his collages agree with it or not; it places a great deal of responsibility on them; and certainly it is peculiar in the way it imposes a single subject requirement on amendments that have been vetted through the process of debate for a Charter Review Commission or before the Board of County Commissioners.  He advised in the Orange County v. Scott case, which he cited in his opinion, says that the County does not have to worry about single subject or log rolling when a proposal is coming out of one of these deliberative bodies; it is really a protection against the abuse of the petition-based amendments; it is there for now; and that is what puts the panel in their jobs as gatekeepers.  He stated the reason he feels the underlying amendment is unconstitutional is when talking about Home Rule, as Home Rule was envisioned by the Constitution Revision Commission in 1968, it was intended to give Home Rule to cities and to counties, particularly with respect to urbanizing the metropolitan counties where the county is as much in the business of regulating as the cities are; the Constitution puts that boundary for whether an ordinance should be preemptive of contrary city regulations; it puts that burden on each individual charter in each individual county; and Brevard County’s says that in the event of any conflict of city ordinances and county ordinances, the city ordinance prevails; what this amendment is saying is that the County cannot amend its Charter ever to say that the County shall have preemptive authority; and any charter amendment can repeal a prior charter amendment, including the one that is proposed.  He stated city powers related to its services cannot be taken away by a charter amendments such as fire departments or city water systems; they have an investment in that, or their bond holders have an investment in that; that cannot be taken away without a referendum of both bodies; but that applies to all counties not just charter counties.  He advised he addressed the question of regulatory preemption in his opinion; in deciding whether a countywide regulation shall apply or whether individual city regulations shall apply, that is a decision for the people of the county; what the Constitution says is the charter shall be amended to give that authority and can only address as far as regulatory authority; and it goes to a vote of the electors who can amend the charter.  He stated the people in the cities also vote for county commissioners; as the constituents of the county commissioners, they can say, if a majority do that, that they think it is better addressed at a regional level than at a fragmented local level; this amendment would take away that power of the charter county, which comes from the Constitution; and that the Board may not do.       

       

Carolyn Ansay, Attorney with the firm of Doran, Sims, Wolfe, Ansay, and Kundid, stated she, like the other members of the panel, found some constitutional questions at best, as was articulated by the numbers of lawyers who came up to the podium this morning, she is not a judge and neither are her colleagues; she was merely retained to provide an opinion; one thing established this morning is that there are a lot of different opinions on this subject; as she articulated in her letter, there are constitutional questions, as Mr. Watts specifically presented, particularly as it relates to regulatory preemption arguments; and these are not issues which have yet been resolved by an appellate court on language that is anywhere similar to what they have.  She went on to say to address Commissioner Fisher’s question as to where she stands, she issued her opinion, and she realized their opinions were of the same opinion of being unconstitutional or contrary to law; she was curious what that meant to the Board; she looked at the Charter and the amendment the Board is abating this morning, and the Charter does say it is silent as to what to do if the panel disagrees; and that is the quandary the Board finds itself in. 

 

Lonnie Groot, Attorney with the firm of Stenstrom, McIntosh, Colbert, Whigham and Partlow, P.A., stated the nearest thing to a judge he is, is a hearing officer in Palm Coast for red light cases, and he has to get police escort in and out of the building now, so he does not want to go any further than that as far as a judge.  He went on to say Mr. Watts was a law professor at one point, so the Board is getting an academic review of charter amendment proposals; the panel was unanimous; there is no controlling legal precedent; and he is not going to intrude on the advice Attorney Knox has given the Board.  He added he represents cities throughout the State and he has talked about the Brevard County’s Charter provision and the three-attorney panel with many a city and county attorney; this is not meant to be critical; he has been on this panel before and he loves it, but uniformly, the comment from other jurisdictions has been why would Brevard County do that to itself; and he does not know of any other county or city that has a three-attorney panel who reviews amendments that are proposed by a charter review commission.  He stated while he enjoys being a part of the panel, he does not know why it is in the Charter. 

 

Commissioner Fisher stated a bunch of cities asked him to have an open opinion on this so he tried to listen exactly to everyone’s opinions.  He inquired why the Attorney for the Charter Review Commission made the ruling that he thought it was legal; with Mr. Groot responding because he thought he was right.  Commissioner Fisher advised each of those cities have their own attorney giving them legal advice; his concern is that the County Attorney is making a recommendation to the Board; the 2000 Referendum determined how to handle this, and that was to hire three attorneys to give their opinion; the panel made those opinions with consulting each other; and it is remarkable that three attorneys agree on something.  He went on to add his biggest fear is the Board going against the legal opinion of its County Attorney and the three-attorney panel, which is clearly stated in the Charter; even though his heart wants to side with the elected officials in those communities that want their citizens to have the right to vote on it; but there is a reason why the Board has its legal opinion.

 

Carolyn Farsnaugh stated she would like to speak to CRC Resolution No. 2010-07.  She stated Brevard County is blessed with much natural beauty and a critical mass of population that is educated in diverse ways cares about the community and may have insight in the efficiency and effectiveness of government operations; this group has no non-partisanship to make recommendations to the Board of County Commissioners with the assurance the recommendations will be seen, heard, and considered; Resolution No. 2010-07 is designed to establish this way; and she is the person who introduced the Resolution.  She advised her intent was the path established be carefully designed to ensure thoughtful and rational input to the Board from the residents; recommendations under this process should be in writing under specified guidelines, not to limit the recommendations, but to flush out the idea in a more fully-developed way; and any topic, which is rightfully considered by the Board, should be available for recommendations under this process.

 

Commissioner Anderson stated he is glad the panel spoke; it is clear the Board is forced to put something on the ballot if two members of the panel say it is constitutional, it has no recourse, and that goes back to the 2000 Referendum; he has never seen an initiative go through that would take the voters rights away; and after hearing the ballot language, he believes the intent of that was to force the Board, through the Charter Review Commission, to put things on the ballot.  He went on to state the Charter has some inconsistencies; the Charter Review Commission's recommendations shall be placed on the ballot; the people get the say in the end; and he will side for putting it on the ballot and moving forward with it because the County Charter is ambiguous with what to do with it when the panel does not agree if something is unconstitutional.

 

Commissioner Fisher inquired if this was a 2:1 decision, to explain to him exactly what would happen if two of the three attorneys said it was not constitutional.  Attorney Knox advised the same result; if the Board does not take that position, then that provision does not have any meaning whatsoever, and clearly someone somewhere decided it had to apply; specifically, the voters of Brevard County decided this panel review process applies to the CRC as well as to County Commission-sponsored amendments and initiative-sponsored amendments; and if the Board does not apply it to the CRC, then that provision does not really mean anything as it applies to the CRC, which is generally not the way the laws work.  Commissioner Fisher stated if two of the three attorneys decided it was legal, it would be put on the ballot; and inquired if the Board is looking for the majority of the three-panel attorneys opinions. 

 

Commissioner Anderson stated he wanted to go back to the intent of the 2000 ballot language creating the Charter Review Attorney Panel, he cannot believe the intent was ever to limit the ability of the voters from voting on an amendment; and it could be advised by the opponents of this amendment during the campaign that these three attorneys found this unconstitutional, the voters should vote against it.

 

Attorney Knox stated he thinks when they say it is the legal panels responsibility to review and determine, they are making the decision that the panel is the gatekeeper and they decide; going back and looking at the time frame this all took place, there was a lot of litigation going on about different charters and things like that; and if he has a guess, he would say it was something to do with getting sick of the litigation of the Charter issues.

 

Commissioner Anderson stated the Board is going to have to discuss these two possibly conflicting areas in the Charter later on and figure a way; but in the meantime, he is perfectly comfortable with letting the voters decide, and if litigation arises out of that, then let the course decide.

 

Chairman Bolin inquired if the amendment is put on the ballot and it is determined that it is not constitutional, what are the ramifications to the Board; with Attorney Knox advising he cannot tell her for certain what would happen; he can tell her it is a charter county, and a charter county falls under the same rules for recalling officials as cities do; if someone really gets mad at the Board, he or she could start an issue about that; and other than that, he is not sure what would happen.  Chairman Bolin stated the problem she has is what the intent was; she believes the ‘shall’ was put into that because they wanted to make sure the Board would not have the authority to ignore something that was brought forward to them to be put on the ballot for the Charter; and inquired if there was any discussion of why it said ‘silent’ as far as the opposite being discussed.  Paul Gougelman replied he does not know the answer to that; stated that provision was not part of the original Charter, it was something that was added at a later time; and as the County Attorney has noted, it probably was as a result of some temporary circumstances that were going on at the time.  He added there were some rather controversial and unique Charter proposals that had been made that would have forced the County to sell off lots of land if they passed; and usually when there are proposals like that, people sometimes react and try to somehow change the process; but what the intent was specifically, he cannot tell the Board.  He went on to say that someone said it earlier today, and it rang true to him, and that is that he cannot imagine the voters ever moving in the direction of approving something that would take away their right to vote on something; and that is so contrary to everything that is fundamental about government in America.

 

Commissioner Infantini stated it was her understanding that when the Board empowered the panel it did so to prevent the County Commissioners from not placing something on the ballot that was determined unconstitutional, as long of two of three people determined that; it was not put on there for the converse, like was stated before; and reiterated it was only if two or more determined it was constitutional, the Board had to put it on the ballot. She agrees with Mr. Gougelman as she does not think voters ever intended to take away their own authority to vote on something.

 

Motion by Commissioner Infantini to approve this initiative to go on the ballot.   

  

 

Commissioner Nelson stated as a Commissioner, to knowingly place something on the ballot that is unconstitutional, he thinks has a great deal of danger in it, and that is the flip side of the argument; the thing that bothers him is there is litigation underway in various forms throughout the State of Florida right now; so the Board would be placing something on the ballot that is already being litigated, and potentially subjecting the County to litigation; and in other counties people did.  He stated he appreciates the League of Cities is willing to participate in defending the County, he does not know that it is good public policy to knowingly go into something for litigation purposes along this line; hand him something that has been through the court system that says this is a legal and tried process so it can be put on the ballot; to him, it is not about the issue as he does support Home Rule; and he just wants something that does not get the Board involved in litigation.  He went on to add there is another mechanism the Board has before it that does not necessarily have the time constraints of the Charter Review process, which is the County Commission itself, four members, can vote to place an item on the ballot; he does not know there is an urgency, other than the cities want to bring this to some kind of closure, but there is no initiative before it that is of concern to them; and reiterated the Board always has the opportunity to get that litigation resolved, come up with wording that is constitutional, and then four members of the Board can place it on the ballot at the next general election.  He stated he would love to see that piece go away, but that was put on there by the citizens; and clarification of a minimum would be helpful if not repealing that section.

 

Attorney Knox stated he was going to make the same point as Commissioner Nelson made, which is that in 2012 is another general election, and certainly the County Commission has the authority, under the Charter, to sponsor amendments to the Charter on a 4:1 or 5:0 vote, as long as it passes through the legal panel review; and in 2012 the Board may have the idea of how these kinds of amendments would be received by the courts.

 

Commissioner Anderson stated the Board had a Charter Review Commission that vetted this; one of Commissioner Fisher’s appointees is an attorney; there was an attorney who lookeded at it; and he has had other attorneys say to him they believe this is constitutional; but these issues have not been fully vetted.  He stated even if it goes through and the voters approve it, it is his understanding that Alachua is litigating it; and if it is found that it is unconstitutional it invalidates the section of the Charter.  Attorney Knox advised not necessarily.  Commissioner Anderson inquired if it jeopardizes any other part of the Charter; with Attorney Knox replying no, it does not.  Attorney Knox advised there is law out there saying term limits are invalid as it applies to County Commissioners, but Brevard County still has that in the Charter.

 

Commissioner Fisher inquired, if the Board wanted to bring it back to another election, should it wait and see how the courts rule it; stated he believes the Commission agrees about the Home Rule deciding; and he wants to see what the real fear is and where there is a problem.  He stated he thought the County had been operating pretty well under its Charter; the cities have pretty much decided the characters of their neighborhoods on how they look; and inquired why this is such a big issue.

 

Attorney Knox stated as he understood the complaint, it was the possibility that the County could possibly, or someone could sponsor, a countywide regulation that would preempt cities from doing anything about it; for example, it would be a Comprehensive Plan provision or something like that; he knows Mr. Watts’ opinion talked about how the Supreme Court looked at it when talking about traffic regulations, for example, would be something that would be uniformly applied throughout the County, so the speed limits would not be dropping from 55 mph to 25 mph if crossing a city or county boundary; and that is the kind of thing they are concerned about.

 

Commissioner Fisher inquired if Mr. Zonka could speak for the League of Cities.  He inquired what idea the League of Cities might have that the County Commission may do something. 

 

Mr. Zonka advised it is more of an issue in other counties; there is a Charter Review Commission that is ongoing; they wanted to deal with this proactively at this time rather than have to argue about something later; but there is no smoking gun in Brevard County; there have been some rather odd actions that have occurred in other counties; in 1998 there was a Dade County one that got a bunch of people fired up; and it really led more to being proactive in those things, and not waiting for some form of future disagreement.  He went on to say it was the most appropriate opportunity to do that to vet it by the County’s appointed panel and all of those various things. 

 

Commissioner Fisher inquired if there is a real reason the League of Cities is worried about the Board.  Mr. Zonka advised no smoking gun.  Commissioner Fisher inquired when the language can be addressed.  Attorney Knox stated if he means the legal panel review, it can be addressed in 2012 by the County Commission.  Commissioner Fisher stated he likes the Home Rule, and there is some uncertainty out there, and the Board is getting ready to make a decision that other counties people have sued on behalf of it; but he is willing to put it on 2012 ballot and give the cities what they would like.

 

Commissioner Anderson stated if that is a compromise with the cities, he is fine with it, but as far as talking about items of preemptions, the Board has had speakers talk about the fertilizer debate about preempting cities and forcing them to do it, so it is not like these thing do not occur; he needs an assurance that the Board will never vote on anything that would preempt the cities in the meantime; this Board is here for two more years; and unless he gets that assurance for the entire Board, he wants it go to forward and let the voters vote on it.

 

Attorney Knox stated if that ever became a problem, and he does not think the Commissioners can bind themselves to making that decision right now, but there is the option of sponsoring straw ballots on those types of things, which would be during a general election.

 

Chairman Bolin stated she supports it 100 percent, and the Charter Review brought it forward; the Board is just in a pickle right now because of the legalities the Board has; and there is nothing that is eminent.  She advised the Board is working very well together, and she does not see that changing at all; she is asking to please let the Board solve what it has to on its side to get this corrected; she, as an individual, believes that it is in the shell so that there is some control over the Board; and she thinks that was the intent.  She stated the three-attorney panel says it is not constitutional; she would like to compromise, and say she as a Commissioner will not do anything to harm a municipality, and let the Board change it on its side and get it on the 2012 ballot so it can be corrected; and it is good for the municipalities and the County.

 

Mr. Gougelman stated the League of Cities work well with the Commission, there is a good relationship; elected officials in the cities and the County Board change; hopefully that relationship will be maintained in the future; none of them know what the future holds; and good intentions are respected, but it will be at least 2014 before this might end up going back on the ballot.  He went on to say people do not know what the litigation of Alachua County will be or if it will address it squarely or will the courts go off on some other tangent and find that the decision is not right; he suspects as it is an issue of interest of people in other areas of the State, it would not surprise him if the issue did not go on to the First District Court of Appeals and even on to the Supreme Court; it is a litigation process that could take years; in the meantime, the Board is trying to correct the situation with the attorney review panel, which he assumes may be on the ballot in 2012; but it could not put the Home Rule amendment on the ballot until at least 2014.  He added they are looking at something in the future; the membership of the Board could easily change in the meantime; and this is kind of business left undone from the original Charter.

 

Chairman Bolin inquired why the Board cannot do it in 2012; with Mr. Gougelman advising there is a provision, if the Board chooses to interpret it that way, that says it cannot put something on the ballot if the attorney panel has found it unconstitutional; and that provision in the Charter would not be open for the voters to remove it until the 2012 election.  Chairman Bolin inquired if it would be better to do it in 2012 than to do it now without having that provision of changing at the same time.  Mr. Gougleman stated he thinks the Charter Review Commission looked at this for over one year; this was probably the most significant issue that received the most attention, and the most public interest; and they feel they have worked hard to get this through the process. 

 

Attorney Knox reiterated that he disagrees with Mr. Gougleman on whether or not this issue can be put on 2012 ballot with this legal panel process like it is now; it can be done; and it is just a matter of how it is worded.  Mr. Gougleman inquired how that will be done.  Attorney Knox advised if the legal panel is amended and is eliminated, and sponsor the amendment being discussed today in 2012, contingent upon approval of the electorate of eliminating the legal panel review, it is effective.  Mr. Gougleman stated that might be one way.

 

Commissioner Fisher stated the spirit is to try to get where the cities want to get; and it is just not there today. 

 

Commissioner Anderson inquired if the Board is going to take the resolutions one at a time for the Charter Amendments to vote on.  Attorney Knox advised there will be three separate resolutions to be voted on; one is the preamble, one is the fiscal impact analysis, and the citizens recommendations to the County Commission provision.

 

Commissioner Nelson stated for the Board to be able to do something that the cities would find objectionable, there still has to be a vote of the citizens, because it cannot create an ordinance; the only place the Board could have that impact is if it changed the Charter; it is prohibited from doing an ordinance that supersedes the cities; and the only way that can be done is by a Countywide vote. 

 

Attorney Knox stated as it stands now, the County Commission cannot enact a Countywide ordinance if the cities do not like it, as the cities can opt out of it; and reiterated that the Board cannot impose something on the cities they do not want to do as long as they have a way of doing it.

 

Georgia Phillips stated when an ordinance is passed and interlocal agreement is done, if there is something about the ordinance the cities do not like, by doing an interlocal agreement those lines can be paved out; currently, the way the CRC is set up, there is no mechanism for a city to say it does not like a certain amendment; and if it passes Countywide it affects every city.  She went on to say this is giving the cities the opportunity to say they do not like particular things.  She stated the cities get along well with the Commissioners, but they are not going to be here forever.  She advised if the Board votes today to put it on the ballot, it could work out the language in 2012.

 

Commissioner Fisher stated the Board works well with the cities and he does not think the Board will ever do anything that causes bad city input. 

 

Brenda Fettrow, City of Cocoa, Deputy City Manager, stated it was asked if there was an example of something currently in place, which is the moratorium on the transportation impact fees, there are several cities that, that applies to as well, one of which is the City of Cocoa; it did have a Sam's Club coming in, and unfortunately it did cause them to lose over $800,000; and she thinks it may be an example since the question was asked. 

 

Commissioner Nelson stated that was the interlocal where the City of Cocoa opted into the County's Ordinance for impact fees.  Ms. Fettrow advised the City is going to opt out of that in the future. 

 

Commissioner Fisher stated a couple of those cities came back and told the County about it, and it was corrected.  Ms. Fettrow explained the City of Cocoa did not have its corrected in time and lost the money.

 

The Board adopted Resolution No. 10-146, calling a special election on November 2, 2010, on the question of whether Brevard County should amend the Brevard County Home Rule Charter to provide for the Charter Review Commission to obtain an analysis for the fiscal impact of a proposed Charter Amendment prior to the transmittal of the proposed Charter Amendment to the County Commission.

 

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The Board adopted Resolution No. 10-147, calling for a special election on November 2, 2010, on the question of whether Brevard County should amend the Brevard County Home Rule Charter to provide for a process for citizens or groups to submit formal written recommendations for enhancement of County Government's effectiveness and efficiency to the County Commission.

 

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Motion and a second was made to adopt Charter Amendment requiring municipal voter approval of County Charter Amendments affecting municipal service, function, power, or authority.  Motion died. 

 

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The Board adopted Resolution No. 10-148, calling for a special election on November 2, 2010, on the question of whether Brevard County should amend the County Home Rule Charter to provide for a preamble.

 

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REPORT, RE:  STRUCTURE OF MEETING

Howard Tipton, County Manager, stated just before the budget discussions begin today, the Board is going to break for an executive session to discuss the proposed labor agreement; and he wanted to advise the Board that once it gets finished with the regular items it will go upstairs to the executive session, and then begin the budget discussions.

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REPORT, RE:  TABLING OF ITEM VI.B

County Manager Howard Tipton stated Item VI.B, Site Plan Appeal, Re:  Bellwood Convenience Store (09SP-01017) - Shyam Virani, as Petitioned by Jeri Perry and Clelia Thomas, has been requested by the applicant to be tabled to September 7, 2010; and he wanted to advise the Board of the request so when it gets to that item it can table it at that time.

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REPORT, RE:  SMOKE STACKS IN PORT ST. JOHN

Commissioner Fisher stated he attended the demolition of the smoke stacks in Port St. John with Florida Power & Light, and the new project will be a wonderful addition to the Port St. John community, and to Brevard County's tax base within a couple of years when the new plant is completed.  He expressed his appreciation to Sandy Sanderson for inviting him.

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REPORT, RE:  CONGRATULATING COMMISSIONERS BOLIN AND NELSON

Commissioner Fisher expressed his congratulations to Commissioners Bolin and Nelson for their primary election win; and stated he is excited by the possibilities.

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REPORT, RE:  RIBBON CUTTING AT SAMS HOUSE

Commissioner Nelson stated he attended a ribbon cutting at Sam's House on Merritt Island at Pine Island Refuge; there were probably 150 to 200 folks in attendance; and if the Board Members get a chance to get over to Merritt Island, he or she should go by there.  He went on to say one of the original houses built in Brevard County has been restored and placed there; a lot of archeological work has been done there and there may be the presence of the Asis Indians back almost 4,000 years with the findings they have made on that site; and it is an incredible site.

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REPORT, RE:  MITCHELL ELLINGTON PARK

Commissioner Nelson stated he went by Mitchell Ellington Park and  the Rockledge Football Team was playing Merritt Island Football team; there was also a soccer tournament; and there must have been over 5,000 people at that park on Saturday.  He went on to add soccer teams have an economic impact to the County; and they come from throughout the State to play in Brevard County, often overnight.

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REPORT, RE:  PALM BAY EAST LITTLE LEAGUE SENIORS

Commissioner Infantini expressed her congratulations to the Palm Bay East Little League Seniors who advanced to the Little League World Series; and they will be recognized at Space Coast Stadium on Friday evening.

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REPORT, RE:  CHRISTENSON’S LANDING BOAT RAMP

Commissioner Infantini advised on August 28th Christenson's Landing Boat Ramp will be having its grand opening.

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REPORT, RE:  WEST MELBOURNE LITTLE LEAGUE

Commissioner Anderson stated West Melbourne Little League has a team that won the State Championship; and he will be honoring them on Sunday.  He stated it is amazing for Brevard County to have so many baseball powerhouse's. 

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REPORT, RE:  PALM BAY ROAD OFFICIAL RIBBON CUTTING

Commissioner Anderson stated he attended the Palm Bay Road official ribbon cutting, which is something near and dear to his heart, because he fought for it as a Palm Bay City Councilman; everyone needs to shop along Palm Bay Road; a lot of those businesses suffered during that construction; and it was a hard time for them.

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REPORT, RE:  COMMISSIONERS COMMUNITY APPRECIATION BREAKFAST

Commissioner Anderson stated he is hosting a Commissioners Community Appreciation Breakfast on September 5th at Futch Park from 9:00 a.m. to 11:00 a.m.; and he and his staff will be cooking a pancake breakfast for anyone who wants to attend, which will be free.

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REPORT, RE:  TRIP TO ORANGE COUNTY’S JAIL FACILITY

Commissioner Anderson stated he and County Manager Howard Tipton went to Orange County to visit the jail facility, which is neat.  He added the issues they face are similar to Brevard County.  He stated there are three courtrooms; they are quick and efficient; and they were great hosts.  He advised the Board is going to have to build a courtroom outside of Sharpes; and if the County gets that efficient, it will not have to worry about jail overcrowding for a long time.

 

Mr. Tipton stated it was a good trip to Orange County; they were a great host; they had a chance to see their courtrooms in action; the delegation was the Chief Judge in the Eighteenth Circuit, a number of other criminal judges attended, the Clerk of Court, and it was looked at in a number of different perspectives of efficiency and the benefits of trying to adopt, at some point in the future, something like that; and it was a great thing to see, as there is a difference in reading about something and actually seeing it. 

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REPORT, RE:  SENIOR CENTER PIE CONTEST

Chairman Bolin stated she was a judge at a pie contest at the Senior Center; she stated it was a lot of fun; and the lemon meringue pie won.  She expressed her congratulations to all of the contestants.   

 

AUTHORIZATION, RE:  DEPARTMENT OF AIR FORCE LICENSE TO BREVARD COUNTY TO USE PROPERTY LOCATED ON PATRICK AFB, FLORIDA FOR BEACH PROJECT ACCESS

The Board executed Department of Air Force License to Brevard County to use property located on Patrick AFB, Florida for beach project access.

 

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BINDING DEVELOPMENT PLAN, RE:  MICHAEL C. GAGNON AND WALTRAUT GACCIONE.

The Board executed Binding Development Plan with Michael C. Gagnon and Waltraut Gaccione.

 

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FINAL PLAT APPROVAL, RE:  GRANT LAKE ESTATES SUBDIVISION

The Board granted final plat approval for Grant Lake Estates Subdivision, subject to minor changes, if necessary, receipt of all documents required for recording, and developer to obtain all other necessary jurisdictional permits; and authorized the Chairman to sign the final plat.

 

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APPROVAL, RE:  HOLLYWOOD BOULEVARD AND HENRY AVENUE INTERSECTION IMPROVEMENT PROJECT

The Board approved issuing the titles to the residential mobile homes on Gail Boulevard to William Turnbaugh Construction, Inc., in conjunction with the Hollywood Boulevard and Henry Avenue Intersection Improvement Project.

 

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APPROVAL, RE:  SUPPLEMENTAL AGREEMENTS AND RESOLUTION FOR TRANSPORTATION ECONOMIC STIMULUS PROJECTS FOR DISTRICTS 2, 4, AND 5

The Board approved the Supplemental LAP Agreements and Resolution with the Florida Department of Transportation (FDOT) for the Transportation Economic Stimulus Projects; and authorized the Chairman to execute the Contracts and all needed Budget Change Requests.

 

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CONTRACT FOR SALE AND PURCHASE WITH PAUL NICHOLLS, RE:  1.07-ACRE PARCEL LYING WEST OF BEVARD COUNTY DISPOSAL FACILITY

The Board executed Contract for Sale and Purchase with Paul Nicholls for a 1.07 acre parcel lying west of the Brevard County Central Disposal Facility for the purchase price of $12,000, plus closing costs.

 

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INTERLOCAL AGREEMENT, LEASE, AND GROUP HEALTH PLAN PARTICIPATION AGREEMENT, RE:  SPACE COAST TRANSPORTATION PLANNING ORGANIZATION

The Board approved Lease and Interlocal Agreements with the Space Coast Transportation Planning Organization; approved adding the Space Coast Transportation Planning Organization as a participant in the County's Group Health Plan Agreement; and authorized the Space Coast TPO staff to participate in the County's property casualty insurance programs.

 

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BOARD CONSIDERATION, RE:  REQUEST FOR REDUCTION OF FINE AND RELEASE OF CODE ENFORCEMENT LIEN FOR AARON KEIRSTED AND PENNY FORD, NEW OWNERS

The Board adopted Special Magistrate's recommendation to reduce the accrued fine for Case 07-0329 from $7,497 to the reduced sum of $749.70; and directed staff to prepare and execute release and satisfaction of lien on receipt of payment.

 

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APPROVAL, RE:  RENEWAL OF CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY (COPCN)

The Board approved the renewal of the Certificate of Public Convenience and Necessity (COPCN) and authorized the Chairman to execute the COPCN with Brevard County Fire Rescue (ALS and BLS), Cape Canaveral Volunteer Fire Department (ALS), Coastal Health Systems of Brevard, Inc. (ALS and BLS), Kennedy Space Center (ALS and BLS), Canaveral Air Force Station (ALS and BLS), City of Palm Bay (ALS) Health First-Holmes Regional Medical Center-First Flight (ALS), City of Titusville (ALS), City of Cocoa (ALS), City of Cocoa Beach (ALS), City of Melbourne (ALS), City of Satellite Beach (ALS), City of Indialantic (ALS), and City of Rockledge (ALS).

 

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REQUEST TO RECOGNIZE, RE:  BREVARD COUNTY FIREFIGHTERS BENEVOLENT BCFF) ASSOCIATION, INC. AS AN APPROVED CHARITY

The Board, on behalf of Fire Rescue and Brevard County Professional Firefighters (BCPFF) Local 2969, recognized the BCFF Benevolent Association, Inc. as an approved charity; and granted Fire Rescue and BCPFF Local 2969 permission to conduct fundraising activities to benefit BCFF Benevolent Association, Inc., which include performing a boot drive November 26 - 28, 2010.

 

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APPROVAL, RE:  PROPOSED BOARD POLICY “COMPUTER AND NETWORK ACCCEPTABLE USE” AND RESCIND POLICY BCC-34 “INTERNET USE BY COUNTY EMPLOYEES”

The Board approved and authorized the Chairman to sign a new Board Policy entitled Computer and Network Acceptable Use, and rescind Board Policy BCC-34 Internet Use by County Employees.

 

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APPROVAL, RE:  AMENDMENT TO MELBOURNE BEACH PUBLIC LIBRARY ADVISORY BOARD RESOLUTION NO. 02-164

The Board adopted Resolution No. 10-141 amending the Melbourne Beach Public Library Advisory Board Resolution No. 02-164, adding two members from the Town of Indialantic to the Melbourne Beach Advisory Board.

 

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APPROVAL OF APPLICATION TO FLORIDA DEPARTMENT OF STATE, DIVISION OF LIBRARY SERVICES, RE:  STATE AID TO LIBRARIES (FY 2010/2011)

The Board approved the State Aid to Libraries Grant Agreement application, 2011 Annual Plan, and 2011-2015 Long Range Plan, to the Florida Department of State, Division of Library Services, for State Aid for Libraries FY 2010/2011.

 

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AUTHORIZATION, RE:  INTERIM PARKS AND RECREATION DEPARTMENT DIRECTOR TO EXECUTE DOCUMENTS REQUIRED BY THE CITY OF MELBOURNE TO VACATE A PORTION OF PINEHURST GARDENS PLAT WITHIN THE BOUNDARIES OF WICKHAM PARK 

The Board authorized Jack Masson, Interim Parks and Recreation Director, to execute the documents required by the City of Melbourne to vacate a portion of the Pinehurst Gardens Plat within the boundaries of Wickham Park.

 

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APPROVAL, RE:  PRECINCT LEGAL DESCRIPTIONS - ALTERED AND ADDED (CHAPTER 101.001 (1) F.S.)

The Board approved the revised Precinct Legal Descriptions for the changes to existing precincts due to annexations by the Cities of Melbourne, West Melbourne, and Titusville.

 

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APPOINTMENTS/REAPPOINTMENTS, RE:  CITIZEN ADVISORY BOARDS

The Board appointed Gregory Shaw to the Country Acres Advisory Board, with term expiring December 31, 2010; Lori Helton to the Community Action Board, with term expiring December 31, 2010; Randy Rodriguez to the Port St. John Dependent Special District Board, with term expiring December 31, 2013; and Ken Pinson to the Spaceport Commerce Park Authority, with term expiring December 31, 2010.

 

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APPROVAL, RE:  BILLFOLDER

The Board approved the Billfolder/BCR's as submitted.

 

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LEGISLATIVE INTENT AND PERMISSION TO ADVERTISE ORDINANCE, RE:  AMENDING CHAPTER 94, BREVARD COUNTY CODE, SOLID WASTE

The Board approved legislative intent and granted permission to advertise an ordinance amending Chapter 94, Brevard County Code, Solid Waste Regulations governing disposal of solid waste from residential and commercial properties as follows:  1.)  Require the cities to provide customer information through their franchised collectors; 2.)  Require the solid waste collectors operating within Port Canaveral to provide customer information through their authorized collectors; and 3.)  Deny access to the County's Solid Waste Management facilities for those entities that do not provide the required information.

 

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APPROVAL, RE:  BUDGET CHANGE REQUESTS

The Board approved Budget Change Requests as submitted.

 

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APPROVAL, RE:  PERMISSION TO ISSUE OPEN PURCHASE ORDERS (FY 2010/2011) TO APPROVED VENDORS OF RECORDS

The Board approved the use of State Contract, cooperative contracts and other agency contracts as vendors of record on the list; approved the use of vendors determined to be the sole source for the products or services indicated; approved the issuance of blanket purchase orders, and authorized the Chairman to execute contracts to those vendors exceeding $100,000; and approved competitive action in the event of unforeseen changes to the approved vendors and/or the cooperative purchasing programs.

 

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PUBLIC COMMENT

Reverend Earl Medlen stated the last time he was before the Board he called Mel Scott, Assistant County Manager, a liar; he apologized for that; but the reason why he did was apparently there was miscommunication; and stated Mr. Scott had taken care of his problem; but he did not know that because no one contacted him until they sent him a letter saying he owed $39.13 for a couple of people to look at his proposal and knock it down.  He went on to say Mike McGarry made the statement that the reason why fees are charged like this is because his office is supported by fees; he finds that to be rather remarkable; inquired instead of charging $114 to get the Gestapo's permission to do what he wanted to, why not just charge him $114,000 if the office is supported by fees; stated take the Commissioners and raise their salaries from $58,145 to $60,000; but no one in the County, regardless of what their job is, should make more than that.  He added there are people making $80,000 to $200,000 off of his tax dollars, and he makes under $25,000 a year.  He stated if the extra money could be saved by bringing employees salaries back down to where the people are at, maybe unreal fees would have to be charged to the public. 

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REPORT, RE:  COMMISSIONERS COMMUNITY APPRECIATION BREAKFAST (CONTINUED)

Commissioner Anderson stated since he knows Reverend Medlen is going to attend his breakfast, he has to correct something; his staff called him advising him that his breakfast is on the 4th on Saturday, not the 5th.

 

PUBLIC HEARING, RE:  ORDINANCE AMENDING PUBLIC NUISANCE AND MAINTENANCE OF PROPERTY REGULATIONS

Chairman Bolin called for a public hearing to consider ordinance amending Public Nuisance and Maintenance of Property Regulations.

 

The Board continued public hearing to consider ordinance amending public nuisance and maintenance of property regulations, to the September 7, 2010 Board meeting.

 

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PUBLIC HEARING, RE:  RESOLUTIONS FOR ADOPTION OF SOLID WASTE SPECIAL ASSESSMENT RATES, FEES AND CHARGES; AND RATIFICATION, CONFIRMATION AND CERTIFICATION OF SOLID WASTE SPECIAL ASSESSMENT ROLLS

The Board adopted:  1.) Schedule of Special Rates and Gate Charges; 2.) Special Rates and Charges for Improved Non-Residential Property and Compensation Rats to be paid by the Collector; and 3.) Other Resolutions Ratifying, Confirming, and Certifying the Annual Disposal, Collection, and Recycling Special Assessment Rolls.

 

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PUBLIC HEARING, RE:  ADOPTION OF COMPREHENSIVE PLAN PACKAGE 2010 - 1 PLAN AMENDMENTS

Chairman Bolin called for a public hearing to consider adoption of Comprehensive Plan Package 2010-1 Plan Amendments.

 

Carrie Hayo, Planner with AECom, stated she is present on behalf of the Platt family and the Platt Ranch Comprehensive Plan Amendment.  She stated they wanted to go first so information could be provided to those present who are interested in this item; and then they will be available to answer specific questions of the citizens after they speak.  She stated present today are two members of the Platt family, Doug and Carlyle; Gary Frese who is the Local Attorney; David Powell,  Land Use Attorney from Tallahassee; Marty Smith, Eminent Domain Attorney who worked with the County on behalf of the Platts to work on the road agreement for the St. Johns Heritage Parkway; Brent Lacy, the Transportation Planner; John Handley,  Planner for the project; and Hassan Kamal, Civil Engineer for the project.  She advised the amendment before the Board has two pieces to it; the map  seen on the PowerPoint presentation is the currently adopted Future Land Use Map for the Platt Ranch; the Ranch is 4,000 acres; it is primarily agriculture; and there is some Residential 1 and Residential 2 Land Use Designations on the site.  She went on to say currently there are 1,683 dwelling units allocated to the site; the amendment proposal includes two primary pieces; one is the proposed Future Land Use Map; of the 4,000 acres they have designated approximately 40 percent of the site leaving that in its current agricultural land use designation; they are requesting a land use amendment for the area that is in purple to a mixed-use land use designation; and that is about 2,460 acres, with the number remaining agricultural is approximately 1,583 acres.  She explained they are proposing land use policies that will apply to the mixed-use area that will govern the form, mix of uses, and type of land use that can happen on that piece of property, as well as address the agricultural activities that can continue on the agricultural land itself; the Future Land Use Map shows the alignment of the future St. Johns Heritage Parkway, which bisects through the middle of the Ranch; it shows three median openings at the southern end, and an overpass that would be there to maintain agricultural operations; the Ranch is still currently a working cattle and sod ranch; and the family is still very actively farming the lands.  She went on to add the second component of the land use amendment is a new policy that is in written form; it is a brand new objective that has been added to the Land Use Element that specifically governs the future development at Platt Ranch; it actually addresses mixed-use, requiring mixed-use on the property; it does not allow for single uses, it does not allow a mix of uses, and the policy specifies what uses are allowable; and the policy specifically caps the development program in two ways.  She stated it caps it by trips and by numbers of development.  She advised there are written policies that require that any future development on Platt Ranch must apply for a Planned Unit Development and have the preliminary development plan that would be reviewed and approved by the Board; and there is a policy that says that any future development at Platt Ranch would have to address the statutory requirements of the DRI process.  She went on to state additional elements of the new Policy provide for continuing agricultural uses on the agricultural land; it provides a really smart growth aspect of the vehicular and pedestrian activity throughout the community; it is the future community; an elementary school is set aside and a large park site on the property; and they have provided for the ability to have light industrial and office uses on the property so there can be employment.  She added there can be daily self-serving retail needs there like groceries and future employment.

 

Ms. Hayo stated in previous public comments there seems to be confusion on the question of if there is eminent development on the Ranch; there are no plans for immediate development of the property; it is still an active agricultural use; there is no developer on board; the Platt family still owns the property; and they wrote a policy into the Platt Ranch mixed-use policy that mandates that no urban development shall occur on the site until after December 2015.  She added it is a phased approach to eventual conversion of the property in coordination of the availability of the new infrastructure that would occur through the St. Johns Heritage Parkway being built through the property.  She advised they have been busy since that last time they were before the Board; in May, they heard a lot of citizens speaking of drainage and flooding issues in the Police Foundation and Brandywine neighborhoods; they have spent a lot of time conducting research and investigation into existing drainage and flooding issues within those communities; drainage and flooding conditions have been discussed with Melbourne-Tillman Canal representatives, so there is a good understanding of capacity and maintenance activities there; they have met in person or spoken on the telephone with the St. Johns River Water Management District, DCA, and Department of Environmental Protection staff prior to issuance of the Work Report so they had a good idea they had a good understanding of the project; and they reviewed all of the letters and emails the citizens sent to Brevard County and DCA.  She advised DCA released the ORC Report on August 10, 2010; and they responded within three days and provided that information, and worked with staff on that as well, to the LPA who recommended approval this past Monday for adoption of the amendment.  She stated she wanted the Board to be comfortable of how they are answering the ORC and how it will get sent to Tallahassee; they wanted to start with the citizen letters and their comments; and the first thing she wanted to do is let Hassan Kamal speak about the drainage conditions and issues, so there is information available to the Board.

 

Hassan Kamal, BSE Consultants, stated what he has been doing is looking at issues being raised through the process about how the Platt Ranch drains, and the concerns some of the residents have presented regarding their issues and how it relates to the application.  He advised he broke this down into four specific issues; how the area drains now, how the existing canals work, what the future requirements for the design permitting are, and approval of anything that may occur on this property; and what the current proposed regulations that are in the County Comprehensive Plan and the Land Development Code that will govern that future development.  He went on to say the Platt Ranch is approximately 4,000 acres, located west of I-95; the land historically has an east to west drainage pattern towards the St. Johns River; in 1922 there was a series of canals that were constructed both on the Platt Ranch and in the South Brevard area that become the Melbourne-Tillman Water Control District that drained that property in a southward direction into the main canal, which is the C-1 Canal; and basically, everything kind of now drains east/west, then south, and then turns and goes towards the Indian River through the C-1 Canal.  He added, starting at I-95 there are a series of canals that drain the Brandywine and Police Foundation communities; they drain west into a north/south canal; and that picks up a little bit of the Platt Ranch and that goes to C-1, and then there is a break, and those other series of canals drain west to the C-2-R Canal that drains south and goes into the C-1; he is giving the Board that picture so it can understand that not all of the Platt Ranch is even sired by the same primary canal system; and the one thing they share in common is that they eventually drain into the C-1 Canal; but an existing part of the Platt Ranch, both in existing agricultural condition and the future development condition, do not really even share the same drainage canal system.  He stated the next slide displays the Melbourne-Tillman Canal system with directional arrows in red and ones in blue, which is the C-1 Canal that takes everything out to the river; and what is also shown on that is, west of the Platt Ranch property is some graphics that describe the C-1 Diversion Program and the St. Johns Impoundment Systems that have been ongoing and are nearing completion that serve the area, provide some fresh water benefits, while also maintaining some flooding control for that entire section.  He summarized the Platt Ranch has always drained into the Melbourne-Tillman Water Control District Canals; they were there way before the developed lands were; when those Canals were designed, permitted, and constructed, that land use was evaluated; so they are not adding drainage, it has always been there.  He went on to say when they go into the development phase sometime in the future, that development is required to control its discharge so there is no more water running off the property than there is now; that is done by an extensive storm water management system that is governed by extensive regulations; and there is not going to be anymore discharge in a post-development condition leaving that site than there is now.  He advised the first time that will be dealt with in a developed condition is when the project comes back to the County for a PUD approval, which is in the current Comp Plan Codes; part of that will require a detailed master stormwater management plan, which the County will review and approve, it has to come to the Board for approval; and is the first step in verifying what is being said is accurate.  He went on to add there is a list of at least five agencies that exist at this time, that will review and approve the project when it goes forward, which is the Melbourne-Tillman Water Control District, Water Management District of Brevard County through the master storm water plan, PUD and detailed construction plan for any development, DEP will be involved in the process, and the U.S. Army Corps of Engineers will be involved as well; Brevard County has an extensive list of Comp Plan policies already in place that require them to do the preemptive post criteria and make sure they do not discharge any more than they do now; Policies 4.1, 4.2, the storm water element, Policy 2.3 and 3.1, very comprehensive and very detailed; Policy 4.5 is also included in that; and they have added another new Policy in the Platt portion, which talks about how they cannot have any adverse impact on adjacent properties on flood plains. 

 

Mr. Kamal advised some of the residents' complaints were concerns regarding impacts to the flood plains by the imposed Platt Ranch Project; nearly all of the mixed-use components of the Project are located above the 100-year flood plain; of the 2,484 acres, 2,216 are above the 100-year floodplain; that line that differentiated the agricultural land use from the mixed-use was based partly on the flood plain; and there was a lot of consideration given to that.  He added any lands that were within the flood plain that were proposed for mixed-use development, will be elevated above the floodplain based on the current Brevard County criteria; in addition to that, in discussions with staff and the Water Management District, they have added a proposed Comprehensive Plan Policy that all roadways, facilities, and buildings will be elevated above the 500-year floodplain; and that is not in existence anywhere in Brevard County.  He went on to add they have gone above and beyond to deal with that issue and satisfy the concerns.  He advised the capacity of the existing Melbourne-Tillman Canal has been an issue; they have talked to them; they made the District aware of the concerns raised; they spoke with the District's technical staff, and they feel comfortable that their canals are sized accurately with the proper conveyance capacity for the land uses that are there; when they come back and develop, they cannot discharge any more than is being discharged now; and these canals should continue to function appropriately.  He went on to say neighborhood flooding has been a concern; it is being talked about at all of the meetings; they do not doubt it exists; their charge was trying to figure out if the Platt Ranch had any contribution to that or had a potential to make it worse; they have conducted site visits, walked all of the roads in Brandywine and the Police Foundation, there is some localized issues out there that are specific to the neighborhood, and it is not a system-wide problem; there are driveway culverts that are crushed or filled with sediment; some of the culverts are undersized, because there is a 12-inch culvert immediately upstream of a 36-inch culvert; and with the huge rainfall events, those driveway culverts do not function.  He added there are some issues that may need to be addressed, but the Platt Ranch, either now or when it gets developed, is not related to those issues.  He stated what the Comp Plan Amendment does not authorize any development; they cannot build anything; and no development can occur until after 2015, so nothing will change out there.  He went on to say what it does is lay the framework for future development and gives a blueprint; it allows them to master plan the community so there are no issues that are out there in these subdivisions that were built 20-40 years ago; there be a comprehensive and complete storm water management system that will ensure these kinds of things do not happen; the Comp Plan Amendment establishes almost 40 percent of this property is protected from development; and there is some significant value to that.  He added one of the things being presented today is the extensive venue that Brevard County has of existing Comprehensive Plan and Land regulations that make sure the project is developed according to Code; and that it does not impact adjacent properties. 

 

Ms. Hayo stated there were six objections and one comment on the ORC Report; she wants the Board to understand the objections and how they are being addressed; they worked with staff very hard on these; and it is sort of a joint contribution.  She went on to state their private application is a companion amendment to the staff-initiated South Mainland Planning Study that is part of the amendment and application.  She stated the first objection dealt with the planning time frame that the County currently has in the EAR Amendments, which it adopted in December, but are still in administrative hearing; they asked them to revise their timeline, build-out timeline, which they had at 2030, back to 2025, which coincides with the currently adoptive planning horizon; all of the data and analysis that was in their application, supporting their application, was based on that 2025 year anyway; and they also revised policy 18.2.1 to reflect that 2025.  She added the second objection is related to need for additional residential land on the Future Land Use Map, and these are actually the title of the objection she is reading to the Board; they wanted to explain this to the Board; a demonstration of need is only required by DCA, when an applicant is requesting an increase to the number of residential units that are currently allocated on the County's Future Land Use Map; and that is the first basis of understanding.  She advised the Mainland Planning Area Study that was done by County staff earlier this year with a public meeting, transfers 3,000 units from another location in that planning area to the Platt Ranch, so that when combining those 3,000 existing units that were transferred from another geographic area to Platt Ranch, plus the 1,683 that are currently allocated at Platt Ranch through the existing land use allocation, the magic number is 4,680 units, which is the maximum number of residential units they are asking for in their application; they did cap the development program to that number; and it is important to note, it cannot be exceeded by using density bonuses or any other method.  She noted through this process they went through jointly with staff, no additional units have been added to the Future Land Use Map in the County; a demonstration of need is not required; in that process of right-sizing as staff called it, in that planning area, there were a total of 17,000 units that were taken away from other areas within the planning area; 14,000 of those were retired off of the Future Land Use Map, they went away; and the other 3,000 were moved to Platt Ranch, which the areas they were removed from are areas where there is no capacity for infrastructure and will not be in the future to build out to the Comp Plan designation of Res-15; and the rationale of moving 3,000 of them to Platt Ranch is there will be infrastructure capacity to handle the mixed-use.  She went on to say she talked to DCA about the density; DCA approved the methodology with the qualification staff supplied them, with maps that showed where these 3,000 units came from; and they were assured thes3,000 units actually came off of areas that could be redeveloped in the future.  She concluded by saying the amendments are not requests for additional residential units on the County's Future Land Use Map; and there is no requirement to do a need analysis.

 

Ms. Hayo stated number three they called sprawl; in 9J5, the rule that governs urban sprawl, there are 13 primary indicators that have to be rebutted by the applicant to prove that the application does not constitute urban sprawl; they successfully rebutted all 13 of these indicators; and no agency made a comment at all about those.  She added Platt Ranch is surrounded on three sides by urban development; DCA's real issue was that there was density remaining in the agricultural area; there are currently 312 dwelling units allocated at a one unit per five-acre density in the existing agricultural definition; and DCA was saying there was no assurance in the policy language that those units would be transferred from the agricultural area over to the mixed-use area, and if they never were, that to it seemed sprawl.  She went on to say they amended Policy 18.4 to take out language that said if a transfer is desired by the applicant, then such and such will happen, they took out the 'if' and made it 'shall' be required.  She advised objection four dealt with discharge into the Indian River Lagoon, which Hassan explained quite well; there will be no additional discharge after development; and there is a C-1 Canal re-diversion project redirecting flows from the Indian River Lagoon when it is completed.  She went on to say Object 5 was entitled, "Lack of Meaningful and Predictable Standards"; there was confusion about a matrix being in here that allowed them to exchange land uses back and forth between residential, commercial, and office; there is no exchange matrix in the Policy, it was removed; there is no language in the Policy about the matrix; and that has totally been removed and they no have the double-cap on the development program that limits them to 4,680 residential units, 300,000 square feet shopping, 200,000 office, 290,000 light industrial, and specific uses.  She added they cannot exceed those numbers on any one of those land use categories, they must have mixed-use by their policies they have written; and they cannot exceed 2,701 peak hour peak direction trips.  She advised Object 6 dealt with transportation planning; Brent is present to address this if the Board has more questions, but they revised the data and analysis to be consistent with the planning year 2025, no adverse impacts occur; they have requested the CIE be amended to include the St. Johns Heritage Parkway as part of the package that gets sent to Tallahassee; the long-range transportation plan has the six-lane improvement for U.S. 192 scheduled when it is financially feasible; and the County has fulfilled its obligation under intergovernmental coordination element with the City of Melbourne to work with it on the two small road segments in Melbourne that have capacity issues way out in the future beyond 2020.  She stated finally, the single comment they received, which was a comment and not an objection, dealt with the Levy L-74, which is the Water Management District Core Levy that is 3,000 to 5,000 feet west of the edge of Platt Ranch; after discussion with the Water Management District and sort of trading language, they developed a policy that people are happy with; it has been signed off on; it says that the Platt's will build all public facilities, roadways, and structures at or above the 500-year floodplain; an elevation is specified for that; and they believe it goes far beyond what anyone else has done in the County.

 

Ms. Hayo summarized that Platt Ranch is a logical location for mixed-use urban development; it is surrounded on three sides by cities and urban development already; they think the incorporation of the Heritage Parkway into a really nice mix-use, walkable community for Brevard County is a win/win; there are no net increases in residential units; in fact, the County is losing some off of its land use map; and there will be services and infrastructure available to serve Platt Ranch in the future when it does get to development.  She advised she is available for any questions.

 

Jim Buffington stated he received a letter that states on the proposed residential decrease of 15 density to six; inquired what impact that will have; stated there are other people on a fixed income in Acre of Diamonds concerned about what impact that would have on their properties; and further inquired how it would affect the future of Acre of Diamonds when this reduction goes from 15 to six.

 

Stuart Buchanan, Planning and Development Department, stated the area the subdivision is located in is a single-family residential neighborhood; the land that the subdivision was built on still has a residential 15 future land use on file with the State; for each county and city in the State of Florida there is a zoning map, which is maintained locally; and there is a future land use map that is on file with the State.  He went on to state that a lot of people know about the zoning but very few people are aware of the future land use; as long as that future land use map has a residential 15 designation, someone could come back into the office, apply for a rezoning, and build 15 units to the acre in that single-family neighborhood; and what staff has done is reduced the density from 15 to six, taking those units offices off of the map to maintain that single-family neighborhood integrity; it makes it so to ever change that, the nature or character of that neighborhood, a person would have to come in, file a Comprehensive Plan amendment with the County, and the State makes it very hard for that to occur; and the purpose of that amendment is to take those extra residential units away, removing the potential of multi-family moving into the neighborhood.

 

Mr. Buffington inquired if what he is hearing is there will be no negative impact on the current residents or properties as they are deeded today.  Mr. Buchanan responded affirmatively.  Mr. Buffington inquired if there is nothing in the future where transportation or anything else will effect that density; with Mr. Buchanan advising the only purpose of the amendment in that neighborhood is to keep it as a single-family residential neighborhood.

 

Vivian Coggins requested that the Board not adopt the Comprehensive Plan Amendment regarding the Platt Ranch; the plan presented has too many unknowns and would be handing the developers a blank check, allowing the encroachment onto the environmentally sensitive land areas; the Board has been made aware of the already existing severe drainage problems in her neighborhood, which continues to be ignored; it has been previously stated that the development will not take place for 10 to 20 years, so why change the land use now; and inquired what the hurry is.  She went on to say part of the hurry is to avoid Amendment 4, that will truly give the citizens a voice in growth management; part of the hurry is to accommodate the St. Johns Heritage Parkway, a road that cannot be afforded; with this change, the Parkway will be just another street into an urban sprawl area; if the Parkway is built, it should not be an access road into residential, commercial, and development areas; and if the area is to be developed, let the access be off of U.S. 192, and not paid for by the taxpayers.  She stated the East Central Florida Regional Planning Council stated there is not a need for additional development; timing and location are not supported by population projections; inquired where does the Board think the people will come from; and build it and they will come will not work in this situation.  She added the St. Johns River Water Management District and the Corp of Engineers have stated the L-74 Levy was not constructed for urban development but for the protection of agricultural lands and would be in danger of failing during a storm event; and that is still going to affect property that is several thousand feet away regardless of how high or tall they are built.  She went on to state the Water Management District has also questioned the availability of an adequate potable water supply; the environmentally sensitive areas of the Indian River Lagoon, St. Johns River, and Three Forks Marsh Conservation Area will be threatened regardless of what the engineers put on paper; she knows and respects that the Platt family has the right to develop their land, but it must be in a manner that will not endanger citizens, already established neighborhoods, or Brevard County's sensitive eco-system.  She added she has eight additional letters from people in the neighborhood and 31 signatures stating objections.

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Lisa Zelnick stated she is also present to request that the Board not adopt the Comprehensive Plan Amendment; the Platt's have the right to use their land as they desire, as long as they follow existing laws; by requesting these laws be changed to accommodate one land owner, hundreds of others will be adversely affected; there are over 400 homes in the Police Foundation neighborhood, the Brandywine Subdivision, and the Carriage Gate Subdivision, all west of I-95; and some of these homes date back to the early 1960's, well before foundations were elevated.  She went on to add the Department of Community Affairs has expressed concerns regarding the potential flood hazards should Levy L-74 fail; the response has been that all future development will be elevated to a minimum of 21.7 feet; that is wonderful for the future development, but for those older homes are not that high; they will become a flood basin; and they are already catching flooding from I-95 and its elevation.  She went on to say there are several home videos that have been posted on YouTube regarding the flooding from the last storms on the east side of I-95, which is even further away from this development, but where all of this water gathers.  She went on to add that the DCA has also stated the County has failed to show or demonstrate the need for the additional units; Brevard County has over 8,000 homes for sale or in foreclosure; additionally there are many parcels of land that have been stripped bare of all nature vegetation because the developers went bankrupt and left the sites undeveloped; some of these examples are seen on Wickham Road, and up and down Hollywood Boulevard; and according to yesterday's FLORIDA Today, the homes sales have dropped sharply in July, and the median home price is now below $100,000.  She advised there is no demonstrated need for these additional units; there is a failure to provide a clear separation between the urban and rural areas; and with the flood of commercial property that is along U.S. 192, Wickham Road, U.S.1, there is still no demonstrated need for future commercial development at this time.  She stated the DCA has also stated that the plan fails to provide the necessary public facilities and water supplies; the response is the City of Melbourne has demonstrated its intent to supply water to the property; the water wars between the Cities of West Melbourne and Melbourne are legendary; if Melbourne cannot supply West Melbourne with its water, how does it propose to jump over West Melbourne to supply water to land that is even further west; and it cannot meet the current need.  She went on to say they are on well water for irrigation, but they are being restricted by the St. Johns Water Management District for their current usage; and inquired how can they provide water to future residents.  She stated the laws exist to protect all of the citizens; changing the law to benefit one person to the detriment of others is an abuse of the system; as the elected officials, it is the Board's job to protect the constituents; and she requested the Board not change an existing law to accommodate one person at the expense of hundreds.     

 

Shirley Beasley stated she feels as public officials, one of the Board's first obligations is to do no wrong; no harm for the environment, to the economy, to the future citizens of Brevard County, and no harm to the citizens living in the area at the time; the applicant says no water will come off of the Platt Ranch; they say a lot of the problems have to do with the citizens; BSE Consultants checked the culverts; and there was some dirt and vegetation in the culverts.  She added the culverts were okayed at the time; they did have permits; but the culverts are not the problem, the problem is the canals.  She went on to say she walked her dog from one end of the canal to the other; it only takes maybe 10 minutes; if the canals could handle the water, there would be no problem; someone said the canals worked fine; when the water over the canal bank drops back down in the canal, the system does work fine; and it is that time out of the canals, into the neighbors homes that the residents are having a problem with.  She stated it seems odd to them as voters that they are getting objections from other agencies in Tallahassee, the one agency right by them is not objecting, they are saying there is no problem, but there is.  She advised that Commissioner Anderson's brother, Dan, is over the Tillman Canals, and they need help; if this passes through, the residents are going to be at the end; the canals from Palm Bay, West Melbourne, Melbourne, they back up into the community; it was mentioned Monday that the Platt property is a storage area for water when it backs up; but the citizens are worried there will be more water backing up into the neighborhood.  She read aloud a statement from people in the neighborhood.  "You all know how hard we've worked to object to this.  If it passes, we will not forget any of you.  You can look for us in the election time on the street corner, maybe even across the street from you.  We will be holding our signs and pictures of our flooded homes, letting people know the County Commissioners what they can and will do for you.  We'll see you at election time."  She stated she has a picture of a home on Michigan Street that a lady wrote to her about; and the canal flooded four times into her yard.

 

Commissioner Anderson advised that his brother runs operations for the Melbourne-Tillman Water Control District, he has nothing to do with the engineering; the engineers are the ones who decided the capacity; the memorandum the Board has states the capacity overflows were during Erin and Fay mostly, during a 100-year event.  Ms. Beasley stated maybe Dan Anderson can help the residents, because if this does go through, the residents will be forgotten.

 

Judy England thanked everyone who attended the Local Planning Agency (LPA) meeting Monday, and those who are present today, trying to protect the homes, eco-system, and their lifestyle.  She advised during the LPA Board meeting, the Platt Ranch was referred to as a retention pond; it was mentioned that the Platt Ranch was the last one to drain on the agricultural Melbourne-Tillman Canal; this is what the residents have been trying to say; her neighborhood is contiguous to the Platt Ranch; and they are the last to drain.  She stated she is not present to talk about the flooding issues, because everyone has already discussed that; she is here to talk about the Department of Community Affairs having six objections; the Platt's have changed their language to try to accommodate whatever it takes to get this development done; the St. Johns River Water Management District had concerns about the levy's, and the limitation of the septic tank absorbson rates; the Army Corp of Engineers warns that L-74 Levy is incomplete; and that was not in the LPA packet, but it was on the DCA website.  She went on to say if any Commissioner would like to come out, she will personally show he or she what the residents are talking about.  She added the residents do not have the money to maintain their roads.  She advised the Florida Regional Planning Council has concerns; the applicant did not show a need for additional development in the Greenfield site; according to the Property Appraiser's Office, properties located in South County have decreased by 12 percent; the properties in the City of Palm Bay have decreased by 17 percent; amendments do not support the population projection that reflects current and future characteristics; but in the report, I-95 and S.R. 192 was mentioned three times, and their neighborhood was mentioned.  She concluded in the report it was mentioned the about the traffic impact of I-95 and US 192 because those are evacuation areas; all of those roads will be stressed; S.R. 192 it cannot handle it; the development should not be taken lightly by anyone in Brevard County, because what was once a good idea of moving people from South to North became Let's Make a Deal and Who Wants to be a Millionaire; and lives and property are being put in danger for a Comprehensive Land Use Plan that clearly shows no need.

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Doug Sphar, Turtle Coast Sierra Club, stated the Sierra Club has concerns about the agricultural lands component of the project; these lands currently allow one home on five acres; there are no requirements in the amendment to transfer the five-acre ranchettes out of the agricultural area; and thus will hold over the option for that former development to occur out there.  He went on to state a cap should be put on the number of ranchettes allowed in the agricultural areas.  He advised another concern is what happens to the agricultural lands if the Platt's decide to get out of the agricultural business; the agricultural lands could be taken over by the exotics; a number of listed species use ranch lands and may be forced out if exotics take over; a good model for future stewardship is the agricultural land in the West Viera Wilderness Park where a conservation easement and associated habitat management plan will protect the habitat values for listed species in perpetuity; because of the proximity of the two ranches, it is reasonable to assume that most, if not all, of the same species reside on both properties; and such a plan should be mandated for the Platt agricultural land.  He went on to add, looking at the development component of the project, there has been concern over the federal agricultural levy at the Ranch's western boundary; Ms. Hayo spoke incorrectly, the Ranch does abut the Levy, it is not 3,000 feet away; the Levy was designed to lesser agricultural levy standards not to the more robust costly urban levy standards; the Platts consultants claim the Levy is not a problem because they are limiting the development to the 500-year floodplain, but the wisdom of this has not been proven by exercising the Army Corps of Engineers current levy failure computer simulations; levies have a known affect of raising the flood stage of a river;  the water cannot spread out so it must go up; and for this reason L-74 Levy has been designed to impound water to a surface elevation of 25.9 feet, but the crest levy is 29 feet.  He added, looking at the maps, most of the Platt Ranch is between the 20-foot and 25-foot elevation contours with the floodplain elevation starting at 21.7 feet; contrast that with 26 feet or more water behind the Levy; the Levy keeps the water at the traditional floodplain; and if the Levy were to fail at the elevated flood stage, it is hard to determine the meaning of a historic 500-year floodplain without a computer simulation to show how the water from such an event would spread over the property.  He stated he just read a recent ORC Report for a Palm Bay planned amendment; it was an objection about this same Levy; they are concerned about the conditions of an agricultural levy; people want to build a higher density; and the owner of the Levy, the Corp of Engineers, has the tools to do it and should be asked to do it.  He reiterated the Sierra Club asks that the plan not be adopted until the ranchette portion is fixed, put a habitat management plan in place, and run an Army Corps of Engineers simulation before moving forward with the plan.

 

Maureen Rupe stated she does not know what has happened to this project, because she remembers the St. Johns Heritage Parkway, originally called the Palm Bay Parkway, the MPO voted unanimously in 1998 for three distinct goals; a limited access roadway to discourage urban sprawl; a high speed roadway to allow movement from Palm Bay to north areas; and an effective hurricane evacuation route.  She went on to say over the years with politics, cost of roadway, developers getting involved, things have changed drastically; and she can foresee that not one of these goals originally brought forward will be accomplished.  She stated since a route was announced, developers have bought thousands of acres of land south of the Platt Ranch and west of I-95; the City of Palm Bay is in the process of annexing at least three residential and mixed-use developments along the southern half of the beltway route; because of this development they have had to change the plans to control that section of road 45 miles per hour, stop lights instead of a limited access like I-95; the Parkway will never be able to be used as a hurricane evacuation route with all of the planned development; and she can just picture all these thousands of new homes trying to use this evacuation route.  She stated what concerns her is the St. Johns River Water Management District states in paragraph 2-B, their concern is an increase in the amount of freshwater discharged into the Indian River Lagoon, and it would have an adverse impact on the Lagoon.  She stated the only way to protect the Lagoon is if the additional runoff volume could be retained and infiltrated onsite, but the soil in this area makes retaining runoff difficult and any increase and intensity of development would exasperate the problem; and the Department of Community Affairs state the same concerns in the ORC Report in the protection of coastal resources; the ORC recommendation is to update the Brevard County Comp Plan to protect coastal resources by adopting policies that ensure development will not increase the amount of freshwater discharge into the Indian River Lagoon; but the County's response is pointing out the Comp Plan criteria; and to her, the County is missing the point that the ORC Report states the inadequacy of the Comp Plan to protect the Lagoon, such as the Policy to retain the first inch of runoff.  Ms. Rupe added as the water quality of the Lagoon is continually degraded from the runoff is proof in itself of the inadequacy of the Comp Plan to protect the Indian River Lagoon.  She went on to state the County and cities need to remember that both Melbourne and West Melbourne are both interested in annexation; if this property is annexed, which the applicants have shown interest in, the agreement will completely change, no matter what the County agrees to now, there will be a new agreement which will change to comply to the City's comp plan not the County's.

 

Mary Sphar stated a couple of year's ago, the Platts wanted to annex their land into the City of Melbourne, then the County offered them a deal they could not refuse; today she urges the Board to take a final, critical look at the Comprehensive Plan Amendments and decide if the Platt deal leaves the County vulnerable to be short changed; reiterated the Platts starting out wanting to annex; and nothing will stop them from doing so in the future.  She went on to say the contract with the Platts even states that the County will not oppose any future annexation into a municipality; three municipalities could compete for the Platt property, Melbourne, West Melbourne, and Palm Bay; and she believes that the probability is great that this competition will happen.  She added at the LPA meeting, County staff and County Attorney Morris Richardson talked about the fact that if the Platt's annexed to a municipality, the Comp Plan amendments the Board is doing today would not longer be valid.  She stated she hopes the Board will find the answers to some questions she has about this issue.  She inquired if an annexing municipality get to keep the 3,000 extra residential units; stated if so, it would mean that not only has the County failed to justify need to the State independent of the Small Scale Study, but the annexing municipality would not have justified need; inquired if there is a way the County can ask any future annexing municipality to provide reimbursement to the County for some of the costs of acquiring right-of-way in building the road; stated the County could have spent the Parkway funds on other transportation projects; and inquired if the County can force any annexing municipality to take over the segment of the Parkway to relieve the County of financial responsibility.  She went on to add the County's Natural Resources Management staff made sure the Platt amendment Policies dealing with the floodplain retained a requirement for compensatory storage; her research into the floodplain policies and ordinances of the three municipalities eyeing the Platt Ranch is that none of them require compensatory storage for fill in the riverine floodplain.  She stated they were told at the LPA that the County Comp Plan would not apply to an annexing municipality; inquired could the County make the Platts provide compensatory storage in the riverine floodplain in the event they annex before building the project; stated she reviewed the contract regarding the County storm water regulations being follows; but nothing about compensatory storage requirements for the floodplain. 

 

Karen Kessler stated she has concerns about the flooding; she is concerned that there has been not study done in their neighborhood; the Platt organization has gone out and looked at their neighborhood and saw things about substandard culverts and things like that; but there has been no official study.  She went on to say the things that were seen in the neighborhood about the smaller culverts, they were there before the building of I-95 and the diversion of the water; everything flowed prior to that; and it was working fine.  She added with the building of the I-95 upgrade and the water being diverted from Lamplighter Village the new sports complex off of Minton Road, all of that water is being diverted into their canals; since that time, if there is a very light rain, the water in the ditches will not move; and that is a problem.  She stated it has been said the Platt Ranch amendment will not affect the neighborhood because they are going to retain all of the water that is on the land; it sounds good, but it does not work; all of the big retention ponds can be built, but if there is cement on top of dirt, that water will run off into the canals.  She went  on to state it will go into their canals in their neighborhood; and a retention pond does not work.  She advised she would like an unbiased study done on their neighborhood prior to this being voted on.  She stated there is no need to build this; she has a couple of things she pulled off of the Brevard County Clerk of Courts web page of the foreclosures versus sales; foreclosures far exceed home sales; and it has since December 2007 and it is still going on; inquired why the Board would attempt to build a subdivision of 4,000 homes when there are homes after homes in Brevard County sitting vacant   

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Tuck Ferrell distributed exhibits to the Board.  He stated there is a problem with the flooding in the older neighborhoods; he sympathizes with those people; and inquired if there is a homeowners association, or some way that they can fix their drainage.  He stated the older neighborhoods were built a long time ago; maybe some accommodation can be made; the drainage is not coming from the Platt property into the neighborhoods; it is a question of fixing the drainage in the neighborhoods; it is about the sizing of the culverts and where they are cleaned; and maybe the neighborhoods can refit themselves with some retention ponds.  He noted the Platts are going to have a big retention area.  He pointed out that the Platts have accommodated the St. Johns River; the Platts sold thousands of acres to try to restore the river run area; and the Platts are trying to be good players in the community.  He stated the other group that is affected is the 2035 plan of the County; the reason for the Parkway is to help retrofit and help circulation of traffic and trips, and to help people more efficiently get to work; and there are 110,000 people in Palm Bay who have asked him to represent them.  He stated the Parkway has been planned for over 20 years; business groups have been working on getting a good transportation plan for the County; without the Parkway, the TPO has found that there will be critical congestion; and the Platts are trying to accommodate the County with the Parkway.

 

Susan Diebel stated she has not voted yet because she just moved to Brevard County two years ago, and this year will be the first election she can vote in, in the County; but when it comes to losing her home, she has to say something.  She stated she moved to Brevard County from Michigan, where she was born and raised, but wanted to live happily ever after in Brevard; and stated Mr. Buchanan has said the residents will not lose their homes, but she does not believe him.  She stated she has tried to educate herself online to read through all the information; the information is worded so that people cannot understand it; and it is worded that way purposely.  She noted she heard Ms. Hayo say that 3,000 dwellings will be relocated to the new city.

 

Chairman Bolin stated staff can answer that question for Ms. Diebel to give her some peace.  Ms. Diebel stated she heard Ms. Hayo talk about eminent domain.  Robin Sobrino, Planning and Development Director, assured Ms. Diebel that the County has performed a study; the County is not taking anybody's home; that is not the intent; the purpose of the study is to remove what staff considers to be phantom units, which are units that do not exist and have never been built; however, the development rights on those properties are much greater than how the properties were developed; for example, one gentleman's property was designated for up to 15 units per acre; his neighborhood has been built in quarter-acre lots; and the County is not taking anybody's home, but is saying that rather than the map that the State keeps reflect a potential to develop at 15 units per acre, it will accurately depicts how the neighborhood is built today to ensure that the neighborhood gets to stay the way that it is, which will protect the neighborhood from having people coming in to seek redeveloping in the neighborhood in a manner that is more intensive than the development that is there now.  She noted the single-family homes and lifestyle that Ms. Diebel and her neighbors have right now, under the proposed amendment, would be protected and stay the way that it is so that someone could not come in and buy up the lands in the neighborhood and then seek a rezoning to build something such as an apartment building. She reiterated the County is not touching anybody's home; it is not taking anybody's home away from them; but is just making sure that the neighborhood character can stay the way that is being enjoyed right now. 

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Ms. Diebel inquired why it was stated that 3,000 potential dwelling units will be assigned to the Platt Ranch; and stated Ms. Hayo did mention eminent domain earlier.  Ms. Sobrino stated through the study in which the land uses are being adjusted so that the neighborhoods stay the way they look now, staff has removed from the map potentially 17,000 new, unbuilt, dwelling units.  Ms. Diebel inquired who are the 3,000 units being transferred.  Ms. Sobrino advised in the South Mainland Area staff has identified 17,000 units that currently have land use approvals in place that would allow 17,000 more units to be built; the map is being changed so that those 17,000 units could not be built because they do not seem to fit the character of those neighborhoods; those units do not exist, they have not been built, but they are being taken off the map so that they cannot be built; but because they are 17,000 units not being built, staff is saying that the County would shift development allowances to the Platt Ranch to allow them to use 3,000 of those proposed potential units on their property; but they are not existing units, and no one is being removed from their homes.

 

Commissioner Anderson stated he would be happy to visit Ms. Diebel at her home to explain the situation; and he will explain it to her in the way that he has learned it over the years, which is much simpler.  He assured Ms. Diebel that no one will lose their homes; and he can guarantee that, at least on the current Commission.

 

Milo Zonka stated he is not present on behalf of the City of Palm Bay, but he can relay to the Board the conversations he has had; there has been a lot of discussion and linkage between the Platt property and the Parkway; and that was basically because of the sequence of events that have occurred.  He stated he would like to reiterate the strong concern and the strong demand from the residents of Northwest Palm Bay; the City has acquired the right-of-way, using impact fees, from Malabar to the City limits; and the City will begin construction of a two-lane road from Malabar either to Pace or Emerson, sometime in March.  He stated it is a reality that is necessary; the 2035 update of the long-range transportation plan includes the widening of Wickham Road, U.S. 1, and Babcock; even under those circumstances, every north/south arterial road  between the south County going into the central County is seriously congested; and he has heard a lot of criticism of the Parkway, but he would like to know how people are going to get from Central County to South County, or vice versa, on a congested road 20 years from now; and it cannot be done without spending $20 million per mile, which is the cost estimate for widening John Rodes and for adding two more lanes to Wickham Road.  He stated he appreciates the conversations he has had with County staff following the ORC report and the DCA report; appreciates County staff for the professionalism and detail in working with the developer to get the modifications necessary; and he has confidence in the studies that have been done up to this point and the effort that has been put in.  He reiterated his support for the Parkway; and stated on behalf of the citizens in the south part of the County, they think the project is critical.

 

Ray Diebel stated staff just answered most of his questions, except for one; and inquired why staff did not take the property that is across the road from him, which is zoned for apartments.  He stated Crane Creek is flooded up to his house; and he lives quite a ways towards S.R. 192.

 

Commissioner Anderson stated he can arrange a meeting with Mr. and Mrs. Diebel.

 

Ms. Hayo stated in terms of some of the comments on future annexations, it has to be remembered that the developer is with the County today as an applicant to have the Board consider the merits of the land use application to amend the future land use map and the text policy that has been requested; the developer is not present to discuss the deal or any of the past decisions the Board has made regarding the Parkway; and the developer is present to ask the Board to consider the merits of the application for land use change.  She stated if the Platt property were to be annexed into another city in the future, they would have to go through this process all over again with whatever city they were to annex into; State law requires that there be a comprehensive plan amendment upon annexation into another city; and the whole idea of the Platts maintaining a working ranch, a mixed-use environment, a walkable community, and a place that Brevard can be proud of is the vision of the Platt Family, no matter what jurisdiction they happen to be in; but to second guess where the Platts might be in the future is beyond what can be thought about today.  She stated Ms. Sphar mentioned she did not see where compensatory storage was addressed in any of the policies; Policy 18.6 requires compensatory storage in accordance with the County's comprehensive plan amendment policy 4.1; and Policy 3.1 is the one that requires retaining the first inch of runoff.  She stated in terms of the remaining units on the agricultural land, the Platts changed their policy to say it shall be required to transfer those units at the time of the PUD; it makes sense at the time of the PUD because that is what the County's land use policy states as the time and process to do it; it is associated with a legal agreement, which is also stated in the County's policy; and the developer took out the word if and inserted shall, so it shall be done at that time.  She noted the levy was mentioned, as well as the discharge into the Indian River Lagoon, which are things Mr. Kamal will talk about.

 

Mr. Kamal stated there were some questions about the levy; and he would like to provide more information to the Board.  He advised the levy was designed in the 1980's by the U.S. Army Corps of Engineers, which had pretty specific standards that they designed it to; the Army Corps of Engineers does what is called a standard project flood, which is well above the hundred-year flood precipitation, but below the five-hundred; and it is a big storm that the levy is modeled to.  He stated there were some numbers mentioned earlier by Mr. Sphar about the elevation; it is 21 in the vicinity of the Platt Ranch and not 26 1/2; the top of the levy at the Platt Ranch property is actually 24 1/2, so the Platts provide what is called a little over three feet of what is called 'free board' above their design storm; more importantly, when this project was planned, the developer was well aware of the river and the resources that are with the water management area to the west; so the mixed-use development is anywhere from 3,500 feet from the levy to the actual mixed-use development, to upwards of almost 8,200 feet; and that is a 1,500-acre area that is not being developed that separates the mixed-use development from that levy.  He stated the levy is a substantial significant structure at 15 feet wide at the top and 3:1 side slopes, which is the same standard that other sections of the levy has been built to further down in Fellsmere; and it is not a small agricultural levy, but is very substantial.  He stated the developer has accounted for the levy by setting back from that facility three-quarter of a mile at the closest spot.  He noted there was a question about the fresh water discharge; the project is restricted to how much can be discharged; no more in the future than is done now; the water management district's C1 diversion program is actually planned so that it is going to reduce the fresh water discharge from the entire contributing area to the Indian River; and the numbers he has heard range from  70 percent to 90 percent, which is 10 percent to 30 percent of what is currently going in now; during an extreme storm event the flood capacity will be there; and only when there is a very heavy storm will there be water discharge to the Indian River, otherwise  it will be re-pumped back into the impoundment areas west of the Platt property. 

 

Commissioner Anderson noted a statement was made that the development backs right up to the levy; and inquired if Mr. Kamal would explain that the agricultural land will serve as a buffer.  He stated there was concern that the agricultural land can be used in the future because there is still the ability for residential; and inquired if any thought has been given to taking those residential lots off of that agricultural land so there will not be a worry about the levy flooding in the future. 

 

Ms. Hayo advised the developer's policy 18.4 states, "Prior to the application for development of PUD zoning, including a unified preliminary development plan for the Platt Ranch, a mixed-use area must first be approved by the County"; and before, it said, "If a transfer of development rights from the agricultural future land use to the Platt Ranch mixed-use is desired"; but that line was stricken through.  She stated the Policy also states, "The preliminary development plan shall include a transfer of residential units as specified from the applicant from that part of the property designated as agriculture future land use, to that part of the property designated as the  receiving district, which is the mixed-use area".   Commissioner Anderson stated the PUD policy is applicable for the whole project and not just the mixed-use.  Ms. Hayo stated that is correct.

 

Commissioner Nelson stated Ms. Hayo mentioned the application is not related to the contract the Board has with the Platts for the right-of-way, but he wants the public to understand there is a section that says if the Board does not approve this, the deal is null and void; and in all fairness, that is an important tie-in to the discussion.  He noted while it is not part of the approval process, it is part of the background. 

 

Ms. Hayo advised she is not sure that is exactly how the language is stated; it is correct that there is a connection; what is not stated in the contract is that the County is not required to approve it; the contract simply says the County will facilitate to be sure that both the County application and the Platt applications are duly submitted and processed, and evaluated on their own merits. Commissioner Nelson inquired what happens if the developer does not get the Comprehensive Plan change.  Ms. Hayo responded it becomes null and void. 

 

Commissioner Nelson inquired if there are any east/west connectors associated with the project that are off site.  Ms. Hayo replied no, they have been removed from the Future Land Use Map.  Commissioner Anderson stated that was a deal-killer for him.

 

Brent Lacey, representing the Platt Family, stated it is not the type of east/west connector that Commissioner Nelson was concerned about into some of the existing neighborhoods, and allowing traffic intrusion; Ms. Hayo is correct in that the original concept was that the Platts thought it would be good for both parties, allowing the neighborhoods to be able to access future employment and retail; but it was found out that that was not desirable, so those were removed from the plan; however, there is an east/west connector that is important that is being proposed that would tie the Parkway to S.R. 192; and it is a west/northwest connector that would allow for hurricane evacuations, a reduced amount of traffic on the Parkway for that segment north of that collector level road for travel that is destined west of Brevard County on S.R. 192; and it would also allow an alternate for people between the Harmony area and Palm Bay to use a portion of the roadway network within the future Platt Ranch project, and thus avoiding a lot of the congested area for the future.  He noted that is a benefit, but not something that would impact the existing neighborhoods.

 

Ms. Hayo stated at the Board's request after the last hearing, the developer added in a subsection to Policy 18.4 that says, "Any future roadway connections to existing residential neighborhood streets are required to be approved by the Board of County Commissioners as part of the public hearing for the PUD, if there are any." 

 

Commissioner Fisher inquired if the Parkway was not part of the transfer of 3,000 units, would the applicant still move forward with the amendment.  Ms. Hayo stated she is not sure she understands the question.  Commissioner Fisher inquired if the Parkway was pulled out of the amendment, and the 3,000-unit transfer density was pulled out of the amendment, would the amendment still go forward.  He noted Ms. Hayo mentioned that the amendment was part of the parkway; and inquired if the amendment is only going forward if the Parkway is included.  Ms. Hayo replied the Parkway is not related to the amendment; it is related to the contract between the County and the Platts that was approved by the Board in December.  

 

Commissioner Anderson stated there was concern about the system working as far as regulatory development; and DCA has proved they do work very hard at monitoring the County.  He stated he does not think any shovels will be turned in the area for 20 years; but in any event, the public needs to be clear that there are substantial reviews and approvals that have to go forward; there is no guarantee that one of the PUD's will ever be approved; and the application for a Comprehensive Plan Amendment does not grant the approval to do anything on the property that has not been done for many years, which is farming. 

 

Commissioner Fisher stated he has some concerns; it is funny how the Parkway has become 2,800 single-family units, 1,872 units, 3,000 square feet of shopping center, office space, light industrial, school, but yet everyone just wanted to be a farmer; and it does not look like farming to him.  He stated his other concern is that the Parkway is in two Commission Districts that does not support the budget; the Board has had conversations about having a Workshop on roads; and he is very uncomfortable realizing that he is tying everything in the County resources to one road, but the Commissioners in the districts do not support the budget.  He stated his position is that either the Commissioners support all of the budget or none of it; what ends up happening is flooding issues and road issues; unless the Workshop can be scheduled and the Board can come back and address everything, he is not comfortable putting all the eggs in one basket; and the budget supports everything the Board does, so the Commissioners are either in support if it, or they are not.

 

Commissioner Anderson stated he did not say he does not support the budget; and what he has said is he does not support the budget unless the Board puts a substantial amount of money in transportation.  Commissioner Fisher noted  Commissioner Anderson and Commissioner Infantini have stated they are never going to roll up millage, so they are not ever supporting the entire projects that are important in the County; and if two of the Commissioners do not support the budget and do not vote on the budget, then they should not vote on the Parkway or on solving flooding issues.  He stated there was a Workshop that was supposed to be scheduled; he is willing to approve the amendment, but he would want to pull out the Parkway and the transfer of the 3,000 units until the Board can have a Workshop to address some of the other concerns and needs so that he can feel comfortable that the Commissioners in that District support the entire County budget to move forward.

 

Commissioner Anderson stated he thinks he has been the advocate for roadways more than anybody; he thinks his and Commissioner Fisher's priorities are different; if the County is fortunate enough to get SEMATECH to locate in Palm Bay, there is no way it can be done without the Parkway.  He stated if Commissioner Fisher gets three votes to kill the Parkway, then that is just the way it is; and it would be very unfortunate to 100,000 residents of Palm Bay, but they cannot blame him for not fighting for the Parkway.  He added there is $20 million already set aside for right-of-way acquisition; and stated Commissioner Fisher has himself said there is no time better than the present to purchase right-of-way because it is the cheapest it will be forever.  Commissioner Fisher stated the right-of-way should be donated.  Commissioner Anderson stated it is not being donated in this case; the family has been there for 100 years and have had the Parkway forced down their throat for 20 years; the Platts were there before anyone else in the County; and moving forward, he does not have a problem.  He stated the fallacy out there is that someone is building a Parkway; he does not know who put the rumor out there; he wishes it were being built, but it is not, because if the County was building it, it would mean economic times have improved in Brevard County; but all the County is doing is acquiring right-of-way.  He stated governments have been criticized in the past for not planning for the future; this is the first time in South Brevard that something has been planned, and is being planned properly; there was poor planning in Palm Bay; and he has been on the record on this issue saying the road probably will not be built during his Commission term, whether he serves one or two terms; but he thinks the Board should move forward and try to get the right-of-way the best it can.

 

Commissioner Fisher stated he disagrees with Commissioner Anderson because the Commissioners who voted for rollback are being chastised publicly for trying to solve some of the service needs and road needs; and the proposed amendment is dependent upon the Board having funding for doing the Parkway and making it part of the deal; and he would like to take the Parkway out of it and approve the amendment and the 3,000-unit transfer.  Commissioner Anderson stated that is fine, but he thinks Commissioner Fisher would be hard pressed to find where he has chastised anybody on the Board for rolling forward; and he respects everybody's decision.  Commissioner Fisher stated one thing about the budget process is that the Commissioners are either in or out; the budget process allows the Commissioners to fund everything it has; his scenario is that if he does not have support for the Commissioners that will have the Parkway in their Districts to help solve some of the road and funding issues, then why is the Board even doing it.   He stated he would like to table the request and schedule a Budget Workshop to have some dialogue about all the transportation needs before moving forward.  Commissioner Anderson stated the Board can have a Budget Workshop on existing roads without this issue.

 

Commissioner Nelson stated one of the concerns he has had all along is the transfer of 3,000 units; he does not see that it should be tied to the amendment; a small area study has the benefit of going in and looking at the area being studied and to right-sizing; that is the part he agrees with; but to then take those units and transfer them somewhere else is an inappropriate process; if it is a transfer of units within an existing property for whatever purposes, that is one thing; but to just gobble up 3,000 housing units and give them away does not make sense to him; and he thinks the project needs to be looked at based on its own merit.  He stated one of the comments made by Ms. Hayo was that no additional units are being added to the FLUM, and that is based on the fact that the Board did a study that generated the number, but they are being added to an area of an undeveloped area; it is like the Board created a self-fulfilling prophecy of no additional units; and that is true in that they are not being added in the area that was right-sized, but they are being added somewhere else, which is not a planning process.  He stated the Board needs to get back to evaluating the process on its own merit; the Board may end up agreeing that that is the appropriate number for that area; but it should not be justified by a system that is not a planning process; it was not a planning process that one would go under normally; and his objection all along is that adding 3,000 housing units has been an arbitrary process.

 

Commissioner Anderson stated that is the other rumor he would like to clear up; it is up to 3,000 units by the time retention and roads are put in, as well as right-of-way and parks; the actual number is far less than 3,000; and he wants to make sure people understand it will not be anywhere near 3,000 units.

 

Chairman Bolin inquired what would tabling the request do to the proposed amendment.  Ms. Sobrino replied as it relates to the completion of the contract with the Platt Family, the terms of that contract stipulate that the Comp Plan Amendment process should reach its final completion with the State by November 1st; in order to meet that November 1st deadline, the Board would need to be ready to adopt and send it up to Tallahassee now; and by the time it goes through the final review process by the State, the ink would not be dry on the amendment process until the very end of October, which would just get it to the November 1st deadline.

 

Chairman Bolin stated as far as the right-of-way, she knows Commissioner Fisher would like to have things donated, and there are cases in which they are, but in her years of working with the roads, it is not very often; and the Board has to plan on the future as it has to, to be able to buy right-of-ways.  She stated she was the Commissioner who came into office during the Pineda Exchange, which had a lot of problems because it was planned many years ago also; somewhere along the way, the Board changed its mind on that particular road; when the issue got legs again, the Board had to pay more money than necessary because of the decisions made by the Commissioner at that time; and she is strong in her position that the Board needs to buy the right-of-ways to keep the Parkway moving on track, because in the long run it will cost more. 

 

The Board adopted Ordinance No. 10-14, amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled "The Comprehensive Plan", setting forth Plan Amendment 2010-1; amending Section 62-501, entitled "Contents of the Plan"; specifically amending Section 62-501, specifically amending Section 62-501, Part XI, entitled Future Land Use Element and The Future Land Use Map Series, Part XIII, entitled Capital Improvements Element, and Part XV, entitled The Glossary; providing for internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date; and also adopted Ordinance No. 10-15, amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled "The Comprehensive Plan"; setting forth Plan Amendment 2010-1.2; amending Section 62-501, entitled "Contents of The Plan"; specifically amending Section 62-501, specifically amending Section 62-501, Part I, entitled Conservation Element; providing for internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date.

 

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SITE PLAN APPEAL, RE:  BELLWOOD CONVENIENCE STORE (09SP-01017) - SHYAM VIRANI AS PETITIONED BY JERI PERRY AND CLELIA THOMAS

The Board tabled request of Jeri Perry and Clelia Thomas for the Board to consider appeal of the access improvements in Bonita Street for Bellwood Convenience Store site plan, to the September 7, 2010 Board meeting.           

 

 

The Board recessed at 1:57 p.m. and reconvened at 3:00 p.m.

 

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PRESENTATION BY FIRST AND SECOND RANKED FIRMS, RE:  PRE-TRIAL SERVICES AND MISDEMEANOR PROBATION SERVICES

Steve Stultz, Central Services Director, stated the Board authorized staff to develop and release an RFP for pre-trial and misdemeanor probation services as a part of the process of determining whether the Board desired to outsource the services; that RFP was released; staff received proposals from that; the rankings from the Selection Committee was presented to the Board on August 3rd; and at that meeting, the Board determined it wanted to hear presentations from the top two ranked firms.  He advised Ms. Heffernan could provide some details as to the type of services that are performed.

 

Shaunna Heffernan, Criminal Justice Services Director, stated they provide pre-trial release services administered from the Jail; it is offered for offenders who will provide, with some certainty, some degree that they will return to court; those are considered low-risk offenders; and they screen those individuals through an investigative process, and do background searches.  She added another program that is in the RFP is pre-trial community supervision; they provide investigative monitoring and backgrounds as well for those folks that do not quite meet the conditions of pre-trial release, who are deemed a little higher risk; and that is a pre-trial service as well.  She went on to say they also offer, through the State Attorney's Acceptance and Agreement, a pre-trial diversion program; those folks are deferred from prosecution program for first-time offenders; and as long as they complete their conditions, basically they do not obtain a record.  She stated they offer probation in accordance with Florida Statute 948; they provide supervision to those offenders who have been sentenced by the court; and they try to insure those individuals adhere to the conditions imposed by the court; additionally, alternative community service is a program that is offered; these are offered for folks who are sentenced and have to comply by paying some type of a fine or they have to do court-ordered service; and these are offered for governmental, not for profit type agencies for work to be performed.  She stated a drug testing laboratory has been offered in the RFP, to be able to provide the service in-house, because the judiciary services do have quite a bit of drug testing; and there is random drug color testing in the County's facility.

 

Commissioner Nelson stated he knows some RFP's, as a professional courtesy, have asked one of the presenters to step out, as a fairness of consideration, to give the ability for each presentation to be done based on its own merit; and not in response to whomever goes first.  He stated the Board is in the Sunshine Law; this will give the ability for each presentation to be done based on its own merit, not in response to whomever got the short-straw, and had to go first.

 

Shannon Wilson, Deputy County Attorney, stated the County Attorney's Office advises the Board not to engage in that particular process; there have been poor decisions in the past, that felt that even the suggestion of doing that, would have a chilling affect; and there is a case in which the courts actually reversed the award in a certain circumstance.

 

Commissioner Nelson stated the Board has done this before in the past; but he is not sure how recent it was done.  Ms. Wilson responded it should not be done; and the County Attorney's Office advises against that process.

 

Commissioner Nelson inquired how the services were selected to go in the order selected so the public will know.  Commissioner Anderson responded he thinks it was from the selection process held; and he mentioned it would be helpful for the public to have a brief selection process for who begins first.

 

Chairman Bolin stated Professional Probation Services will speak second; Judicial Correction Services, Inc. will have the ability to do any rebuttals; and then the speaker cards will be heard.

 

Mr. Stultz advised the RFP was developed and released for selection of the judicial services; the Board approved the advertisement for the RFP, it appointed a selection committee, those Committee Members are Criminal Justice Services Director Shaunna Heffernan, Jail Population Coordinator Isaac Kennedy, Honorable Judge Judith Atkin, Assistant County Manager Stockton Whitten, Public Defender James Russo, and Chief of Staff for State Attorney's Office Wayne Holmes; the RFP included the evaluation criteria that the proposals would be evaluated on by the Selection Committee; and the cost proposal and the schedule of fees for the services was worth 30 points, qualifications of the firms was worth 15 points, demonstrated ability to perform the service and experience was worth 15 points, approach to project and transition plan takeover was worth 10 points, companies financial stability was worth 10 points, rehabilitation services provided was worth 10 points, use of technology was worth 10 points, and also in consideration of the evaluation was the County's Local Preference Ordinance.  He advised the Selection Committee met; upon the initial review of the proposals, it determined to hear presentations from all of the seven responding firms at a separate meeting; and the firms were evaluated and scored the firms based on the certain criteria; and he believes the Agenda packet include the overall ranking sheet.  He stated the order of the rankings were Judicial Correction Services, Inc. ranked first, Professional Probation Services ranked second, The Advocate Program ranked third, The Salvation Army ranked fourth, Florida Probation Services ranked fifth, Specialized Treatment, Education and Prevention Services, Inc. (STEPS) ranked sixth, and Court Programs of Florida, Inc. ranked seventh.

 

Scott Glass, Shutts and Bowen Law Firm, representing Judicial Correction Services, Inc. (JCS), stated he will give the Board some opening remarks and then his client will continue with the presentation to the Board.  He stated he downloaded the Brevard County Purchasing Procedures Manual, it is a very comprehensive and thorough outline of the procurement process made available to vendors who wish to do business with the County; on the first page of the manual, it notes that the rules and regulations are necessary for the proper operation of the purchasing function; he thinks that no one will disagree with that, in light of the stated objectives with this document; and for the benefit of those who may be watching at home or in the audience, he will go through the objectives quickly.  He stated the second objective in the manual is to provide professional procurement services for all customers in the County; the third objective in the manual is to assure adherence to all laws, regulations, and Administrative Orders relating to procurement; and it shows that the County put a lot of effort in putting the Purchasing Procedures Manual together and he commends the Purchasing Department and the County Manger’s Office for putting it together.  He stated the Purchasing Department also did the RFP, which was issued by Mr. Stultz, it spells out the criteria it is looking for, it spells out the scoring system in a numerical way, and what points are maximum points for various features; and then a good deal of thought was given to who would be on the Selection Committee, because five out of the six Members of the Selection Committee  are people who work in the Criminal Justice System on a day-to-day basis and have experience with the types of functions and needs regarding pre-trial diversion and probation services.  He stated a process from the RFP was taken, it was put into the Purchasing Procedures Manual, and made it a little bit better, by not just relying on staff, but actually going out and getting experts in the things of areas needed; and he commended the County for doing so.  He advised the Selection Committee followed the Board's direction from the RFP and the Purchasing Procedures Manual, by going through a very thorough two-month process; the presenters all spoke, the Selection Committee reviewed all the presentations, applied the criteria, and took to heart the purpose of the RFP, to select the most highly qualified firm to provide pre-trial services and misdemeanor probation services for the 18th Judicial Circuit Court, and for Brevard County as required by Florida Statues; and the people on the Selection Committee are in the criminal justice system and he thinks they took the assignment very seriously.  He mentioned he requested a copy of the DVD from the Selection Committee meeting, which is public record now in court, he has watched it, and the Selection Committee did take it very seriously and he commends the work done; using the creating scoring system; and ranked JCS, as the most highly qualified firm, with a two-to-one margin, and scored in accordance with the scoring system required, so if the cost of services had the maximum points available, which is the lowest price gets it, and the ones higher get a proportionate share, which is how it is spelled out in the Purchasing Procedures Manual.  He stated the evaluation process was followed, a conclusion was reached at the end of the meeting he watched on the DVD, with Mr. Stultz telling the Selection Committee, what he needs from the Selection Committee is a recommendation as to what they want to forward to the Board as their recommendation; and that was followed by Mr. Whitten saying he thinks he would make a motion that they move the rankings as compiled to the Board of County Commissioners, which was seconded by another male member of the Selection Committee of when it would come to the Board due to the calendar; finally someone pointed out that a vote had not been taken, a vote was then taken, and it was a unanimous vote; with those rankings, that gave them the recommendation if the scoring is looked at by the Board; he commended the Board, because it does the best job he has ever seen in any municipality he has worked with, by putting the video on the website; and it is wonderful program to simply clicking on the Item on the Agenda, and being able to review it.  He stated the Board will see JCS was scored number one by more than a two-to-one margin over anyone else.  He noted he started with the Purchasing Procedures Manual, it has provision in it, and if someone is ranked number one and has a problem with it, there is a process for them to follow within five business days of the posting of those rankings, a formal written protest can be filed with the Protest Committee made up of Departments heads that are totally unrelated to the contract at question; where they are impartial, fair, and hold essentially a Quasi Judicial trial with the assistance of Purchasing and the County Attorney's Office; and make recommendations to bring forward to the Board.  He advised rather than following that process when this matter came to the Board on August 3, 2010, Professional Probation Services, which had missed the deadline at that point for filing a protest in accordance with the written procedures, simply showed up and asked the Board to ignore its expert Selection Committees opinion and procedures from the Purchasing Procedures Manual, pick them, and they will give a 10 percent raise; and if JCS’s proposal is looked at, the Board will see his client indicated that on an average when they come in and take over, employees get, on average, a 10 percent raise; his client did not promise that, because they are business people and they do not want to be in the same situation that the County was in where it is losing $800,000; and if people will look at the history of his client, people will stay and have good benefits.  He stated in the Professional Probation Services RFP transition plan, tab 12, page 41, it says, "Professional Probation Services stands ready to offer all Brevard County Probation staff employees a 10 percent increase in the current rates of pay".  He went on to say on day one of the project without even looking at the employees, they are saying they are going to offer them jobs and a 10 percent pay raise; he submits that is not good business practice; if page 7 is looked at in their proposal, there is a listing there of the qualifications that the firms and employees have to work on this contract; everyone listed has to have a college degree; as he understands it, not everyone has a college degree; and he is not sure how every employee can be offered a position and a 10 percent raise.  He stated he understands a college degree is a good thing, it was so good for Professional Probation Services, they stated it in two different places in their proposal; he is not saying that Professional Probation Services is a bad company or intentionally misleading anyone, but he is saying Brevard County has put together a very fair, equitable, professional, and consistent procurement process; Judicial Correction Services, Inc. places their trust in that process; and all they are asking is for Brevard County to trust its own process.

 

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Robert McMichael, Chairman and Chief Executive Officer for Judicial Correction Services (JCS), Inc., expressed his thanks to the Board for allowing him to make this presentation today; and he expressed his thanks to the Selection Committee for voting JCS best qualified to serve as Brevard County's provider of offender management.  He stated he has spent over 45 years in criminal justice; and he worked 30 years in Fulton County, Georgia, as Sheriff for three years; and he served as United States Marshall for the Northern District of Georgia in both the Clinton and Bush Administrations.  He stated JCS serves over 100 jurisdictions in Georgia, Florida, Alabama, and Mississippi; and he is extremely proud of the work that has been done and the accomplishments made in those jurisdictions.  He stated in the six counties in Florida, JCS has conducted a seamless transition, supervised over 62,000 probationers, fine collections average over 45 percent more than they did prior to them taking over, and misdemeanor jail populations have reduced an average of five percent; their success is based on three principles, honesty, integrity, and commitment; and he sincerely hopes that the Board will follow the recommendation of its Selection Committee and choose JCS as its provider.

 

Jarrett Gorlin, President and co-owner of Judicial Correction Services (JCS), Inc., stated he would like to point out a few things that were given to the Board at the last meeting, which had painted an unrealistic financial staffing picture given by Professional Probation Services.  He stated JCS serves many jurisdictions; throughout the RFP, the competitor, Professional Probation Services, referenced Gwinnett County in Atlanta, Georgia, which is comparable to Brevard County; the only problem about that reference is they will no longer be serving Gwinnett County as of October 1, 2010; in fact, if Professional Probation Services is comparing the RFP to the one they did over five years ago in Dade County; and there are 27 courts no longer on their reference list.  He stated JCS is not a Fortune 500 company, but that does not make them less or more unstable, and they are decision makers, not a Board of Directors in another State; and as a private ownership, it takes a long-term financial approach to being able to make decisions.  He stated this is a professional contract; and the least expensive might end up being the most expensive for Brevard County.  He stated it is mathematically impossible at $40, even with 100 percent collection being done of 2,700 cases, to hire all the staff needed and give them a 10 percent raise, and actually come out in the green; but PPS wants the Board to believe that they can take an operation that the County does now at $60, hire employees, give them a 10 percent raise, cut their income by one-third, be a viable entity, and provide the service to the courts, County, and cities that the citizens are used to receiving.  He stated additionally, if their RFP in Dade County is looked at, it states they no longer serve two of their accounts due to lack of profitability; inquired if that means they will walk out of Brevard County in two years; and it is not fair to the hard working people of Brevard County, because they only hire individuals with a four-year degree.  He stated his company has been fair and honest in their RFP with Brevard County; there have not been any promises made that will impact peoples families later; stated when his company makes a commitment, it sticks by it; it would be an honor to serve Brevard County with honest, transparent, confident, and excellent probation service in the 170 courts, four of the six members of the Selection Committee ranked JCS number one, they are the direct users of this service, they studied this procedure for months, and he is asking the Board to go with the Selection Committees endorsement; and his company will make Brevard County proud.

 

Clay Cox, Professional Probation Services (PPS) Chief Executive Officer and Founder, stated his company was started by himself and his wife in 1992, they were both probation officers; the reason for them to doing so was they felt like the folks that were set up on probation would fail, because those individuals were asked to keep a job, but had to report in during business hours and were told to not miss work; but could not pay their fines because they had to miss work to report in; and that cycle was ended when his business was created.  He stated PPS is part of the Universal Health Services, Inc. (UHS), it is a Fortune 500 company, and PPS actively supervises more than 50,000 offenders in six states.  He stated there has been a lot of talk about the scoring of the Selection Committee; stated his company was ranked number one by a couple of Committee Members; he thinks there was some confusion during the Committee selection process, such as from one member PPS received a zero score for the section entitled rehabilitative and he found that to be almost remarkable; and if UHS's Behavioral Health Division were a separate company, it would be the largest rehabilitative behavioral health company on earth.  He stated in his presentation to the Selection Committee, it was pointed out that PPS has five behavioral hospitals in Florida, to design any program in-house, out-patient, in PPS office locations that the court would have PPS design; and at times he can find third-party payers like Medicaid, to pay for alternatives.  He stated PPS deals with the why's of people on probation; he deals with the individuals, employment, transportation, and to transfer cases to other offices, so the individual can report in when needed, and PPS focuses on being an affordable alternative, so folks do not violate their probation.  He mentioned Mr. Glass stated, "JCS scored 30 points in the fee schedule and everyone else scored lower;" that is because JCS offered the lowest fee; it has already been discussed with the Selection Committee that PPS offers a $40 fee versus JCS's $55 fee; and he feels like that is an adequate amount of money to do this business.  He stated PPS has been in business for 19 years; he feels a higher fee results in a lower accountability and compliance, and it puts more folks in jail because they simply do not report when they do not have the money; and the lower fee raises the compliance rate, it raises PPS's ability to see probationers and deal with the reasons the individuals is there in the first place due to unemployment, addiction, and other issues.  He stated PPS offers a pay-only-supervision to Brevard County, for example, some offenders will come to court and be placed on probation because they simply do not have the $150 for the ticket; the pay-only-supervision does allow someone a full month of no fees to pay, it is submitted as it was paid, and pay a reduced fee of $35 until the monies are paid in full; and it reduces the dockets in court.  He stated PPS offers intensive probation of $50 a month, which is $5 lower than JCS's basic price, and PPS is visiting folks in the field; he thinks Ms. Heffernan did a great job talking about the aspects of services that PPS is going to offer in alternative community service, pre-trial diversion, pre-trial community supervision at $40 a month, and the statutory pre-trial release, that must be done at no cost, which will be honored; drug testing is a big part of what PPS does, it stands ready to assume the obligations; he recently met with staff who runs the lab in the Criminal Justice Services Office, it is an impressive facility; and he looks forward to retaining that piece, moving forward, and expanding the level of services the drug lab does to compliment the field drug testing program.  He stated PPS offers electronic monitoring devices that will track offenders with a Global Positioning System (GPS), but test the presence of alcohol in the sweat from the anklet worn, and in the standard home monitor unit where the offender is confined to 150 feet from their home, can be vetoed to allow the offender to be able to go to work; and that device identifies the offenders voice and the presence of alcohol on their breath.  He mentioned one of the confusing scores received from one of the Selection Committee Members was PPS's use of technology was inadequate and scored a zero, plus a zero in not offering rehabilitative services; along with the house arrest devises and voice verification there is an in-house program of software that tracks offenders online, that Judges and court staff can view 24/7; a person's file can be seen to see where they are and where they live, field notes can been seen; and his probation officers and County staff were excited about getting their hands on it to monitor their cases, by using technology in the latest offender tracking ability.  He stated PPS is going to make good on the promise made one year ago that JCS can operate at $40 in Florida; it makes him curious because JCS is charging $35, like PPS, all over Georgia and Alabama; he thinks $40 is plenty of money to provide the services he is talking about doing; 37 people will be offered employment; whomever is working for the County in the capacity of probation or pre-trial will be hired by PPS in their current capacity at a 10 percent raise; and the individual will immediately be able to enroll into PPS's benefit plan, consisting of medical, dental, vision, life insurance, all the dismemberment disability insurances, UHS retirement, 401K plan, and stock purchase plan.  He stated he visited with the employees and showed them all of the benefit packages, and answered questions for one and one-half hour; PPS is looking forward to having those individuals be a part of the PPS family; and PPS will take care of them the way they deserve.  He stated he would like to point out the lower fee that PPS is going to offer and has been offering for almost 20 years; there is a savings for offenders that come in with money, no fees will be taken, and PPS will be applying Brevard County fines, which is upward of $2.1 million in additional fines revenue that Brevard County will be getting instead of PPS; he keeps hearing how will that be done; and he explained when offenders are set up to succeed, with evenings and weekends being opened, when a probation officer has proper training and the tools needed to do their job, with the latest technology, and having the programs needed to get those folks off of addiction and in the roles of productivity in employment.  He noted there will be more than 2,300 people factoring in a fee; the number that was on the County matrix of offenders in total was in excess of 66,000 offenders; yet, the numbers given to folks who are in compliance and regularly come in and pays is around 2,300, and that is not the picture of a PPS case load; of those 66,000 offenders, far more will be in compliance and paying; and that is how profitability will be achieved and is how it has been done for nearly two decades at a lower fee schedule.  He mentioned he is kind of a government guy himself; there is a rapid transit authority in Atlanta, Georgia called Metropolitan Atlanta Rapid Transit Authority (MARTA), which is going broke because no one will ride the train, and their response year-after-year is to raise the fee; MARTA still cannot be figured out why the ridership continues to decrease; and the same thing applies in this situation, when a fee approaches $55 a month there is a choice made to report and pay the fee, or not report at all and end up in jail, costing the taxpayer.

 

Mr. Glass stated Mr. Cox indicated he was confused by the scoring of PPS receiving some zeros with the regards of technology; the Board provided a protest procedure that he could have  gotten those answers, because all he had to do was follow the Board’s adopted Purchasing Procedure Manual as the other vendors did; Mr. Cox could have filed a protest and received the answers from a separate independent committee that the Board has provided for; PPS elected not to do so, it elected to do an end-run around the process the Board had put in place: and allowing Mr. Cox to ignore that process by coming directly to the Board is arbitrary, capricious, adherently unfair, and directly contradicts the Board's stated purchasing objectives adopted in the Purchasing Procedure Manual.

 

Kevin Egan, Judicial Correction Services, Inc. Director, stated the $40 and $55 fees have been discussed; it was heard that probation is compared to subway cars in Atlanta; he thinks that shows the difference between the way JCS is approaching the business rather than PPS is approaching it; this is a professional service business dealing with 60,000 individuals, it will have 60,000 unique stories, which may be similar to each other, but each one has to be treated differently; and this is not selling ice cream cones or subway rides, it is not a commodity type of goods.  He stated somebody smarter than he at one time said, "Seldom is the cheapest, the least expensive"; he thinks nothing is more true when it comes to professional services by a person not wanting the least expensive attorney, engineer, architect, or defendant; JCS's supervision fees are a little bit higher than PPS and if an individual is more likely to pay a smaller probation fee, they will not get the behavioral health services JCS provides with UHC; and JCS is providing a greater level of services with the degree of success.  He stated the increase of the supervision fee yields the defendant, as well as the County, a much greater value in the respect that the individual is much more likely to successfully terminate their probation, break their cycle, and not end up in the County Jail; and to resume to their families and work environments.  He stated unequivocally it has been seen with the 66,000 probationers that are on active supervision a day, in four southeastern states, including the four offices in Volusia County.

 

Richard Wayman stated he is a Criminal Justice Officer with pre-trial release of Brevard County Detention Center; his position on this is not necessarily to pick a company, but to encourage the Board not to privatize pre-trial release; and his reasoning for that is pre-trial release would be an anchor to both of these companies and a profit will never be seen through pre-trial release.  He stated pre-trial release is a unique unit compared to the other 67 counties in Florida; Brevard County is the only County that provides a mechanism to release people prior to first appearance court; he inquired why would that ability want to be jeopardized is beyond him; and he expressed his thanks to JCS and PPS for their cooperation when they came to the Brevard County Detention Center last Friday to give their presentations.  He stated he thinks there will never be a dime made off of pre-trial release; Mr. Cox said he did not even know if they would be able to continue to release on pre-trial release prior to court; in the RFP he thought he read that one company proposed it would keep six or seven people in pre-trial release and the other one said it would keep three; and he will tell the Board from his experiences court will not be able to be prepared with three people on that staff, because there is no way 100 people a day can be processed for court.  He stated in one of the handouts he gave the Board is a pre-trial release sheet, it is provided to the court every day, it provides critical information for the judges; and he knows the Board received a letter from the Honorable Judge Atkin about the Pre-trial release functions for the court; there is always a person that sits in court, to act as a liaison between the court, jail facility, Public Defender’s Office, and State Attorney's Office.  He stated he wishes the Board would highlight on the Mission Statement of pre-trial release; and he expressed his thanks to Commissioner Fisher for coming to the jail to see what goes on there.

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Madeline Russo stated there have been committees and two companies heard, but there has not been anyone heard from the Probation Department in Rockledge; she would like to tell the Board about having the opportunity to listen to the presentations on Friday from JCS and PPS; she spoke with 18 employees who signed a document with one declining and one could not get there to sign the document, and one had their own concerns and just spoke to the Board; and she would like to present the document to Howard Tipton, County Manager.  She stated if the Board privatizes her Department, she would like the Board to think of the employees, and go with PPS, because they offer a comprehensive benefit package, a retirement plan, a raise, keeping all of the current employees, and PPS has a passion to help people.  She stated PPS can help people because they have the resources, financial backing, and access to behavioral health treatment clinics, which is crucial because there is no access to a clinic right now when people need it; people cannot pay their probation fee when they do not have a job; and PPS is going to help teach them how to write resumes and find resources to find a job within the radius of her office.  She stated she thinks PPS really cares about the people on probation, which really speaks to her, because she works with this every day, and she cares about helping getting people off of probation successfully, getting off of drugs and alcohol, cleaning up their acts from domestic violence, and every other infraction that a person is put on probation for on a misdemeanor level; she is not saying anything bad about JCS, but it is felt that JCS did not present to the Probation Department a positive package when they visited; there was no documentation, and they could not answer the questions about how much a person would get paid, although it was finally extracted from them that the average Probation Officer gets paid $31,000 a year with the lowest paid Probation Officer not making that much.  She stated she would like the Board to approve the bid of the company who will be able to take care of the employees, offer them a retirement package, and all the benefits available.  She stated the people who signed to choose PPS are very concerned because there can be retaliation; she hopes that does not happen; they stepped out large for this; and she wants to give them a shout-out, because she knows they are watching.

 

Richard Huckabee stated he works in the Probation Department in Rockledge as a Probation Officer; this was voiced to them a couple of years ago, he did not like it then, and he does not like it now; however, he is looking towards the future and what is made available to his Department.  He stated there are two companies present today that have made proposals to the Board for probation services; one offers a benefit package, like made with the County; the other company did not mention a benefits package; and he would like to mention the process and PPS receiving a low score on lower fees; it looks like the County could be paying less, but really it will be paying more; and he thinks the Board should take things on face-value.  He stated he believes JCS and PPS will pay what they said they will pay; he thinks JCS has not said much; and he believes in PPS.

 

Robert Griswold stated he is currently an employee of the Criminal Justice Services Department and is a concerned citizen; Criminal Justice Services is not a Department that will fill the Commission Chambers with concerned citizens; however, the Criminal Justice Services Department plays a critical role in the quality of life for the citizens of Brevard County; therefore, he feels he will be remiss if he did not ensure the Board information that is important prior to the decision of privatization of the Criminal Justice Services.  He stated he has great respect for the two agencies present today; he is sure everyone is aware that in 1986, the Board decided to remove misdemeanor probation from the private sector to a directly provided government service; this was largely due to dissatisfaction with service provided by the private sector; a Judiciary came before the Commission with this request to the Board; and some may be aware that there used to be employees in the Criminal Justice Services Department that became County employees, shortly after that initial transition, and have been instrumental in fostering the quality of service it provides today.  He stated as an Officer, Program Manager, and Quality Assurance Training Officer who carries the current case load, they are routinely in contact with many probation and pre-trial release services; he can reassure the Board that the Criminal Justice Services Department is highly respected due to the quality of service it provides; and the Community Services Program and the drug testing laboratories are one of the best programs of its kind. He stated there was a time when employees had faith in their employer, who are dedicated to doing a good job; the employees assist in taking care of their families medical, life insurance, and retirement; and he inquired if the Board is aware of the significant number of employees who are over halfway to their retirement destination in the Criminal Justice Services Department, with six employees having over 26 years of service, which is due to the dedication to the public with public safety service.  He stated it is hard for him to believe that the same Commission who recognizes its employee tenor with standing applause's and plaques are the same individuals who are eager to toss aside family, security, and dreams of the loyal and dedicated employees; having heard comments like trying privatization for one year, or these agencies have put a lot of work into preparing proposals, and one should be selected today; and it is very disheartening.  He stated he is begging the Board to be considerate of the future of others because this decision will have a lifetime of impacts upon the employees and their families.  He stated he is not sure of the individuals who signed the paper submitted are aware that if there is privatization that one company requires a Bachelors Degree; he is only speaking for the fellow employees who work with him in Brevard County; it is for their safety that he speaks of it; private companies are based on profit with one of the companies telling the Board of it today; and based on collection rates, it is not entirely true in government operations.  He mentioned judges are constantly tempted to avoid bonding situations by converting fines to community service; he proved the Board with a memo written by the judiciary dated yesterday in reference to this issue; and he hopes the Board will read it.  He stated this is not about money; people violate probation because he or she cannot do it; and he is begging the Board to continue with the current service.

 

Scott Ellis, Clerk of the Circuit Court, stated this has been an unusual RFP process; the reason he came today are the two companies selected for presentation today are well ahead of the other companies; the remaining four are within one point of each other; normally, two bidders are heard if they are far above the rest; but normally three would be heard.  He advised he has other concerns, particularly where it seems employees have met with the companies off the record; and he inquired if that was correct.  Chairman Bolin responded the Board did not ask those companies to do that.  Mr. Ellis stated it has happened; and it was off the record.

 

Deputy County Attorney Shannon Wilson responded she is not sure what Mr. Ellis means by off the record, but it should not be a part of the consideration of the selection process; her understanding was the employees got the companies, on their own, to meet with them; and there is no one who can stop that on the Selection Committee or on the Board.  Mr. Ellis inquired if salaries were addressed in the RFP.  Ms. Wilson responded not to her knowledge.  Mr. Ellis stated he is curious, because he sat through this discussion and has heard people talk about how much they are going to be paid; he does not think it is in the RFP; and no matter who the Board awards the services to, that provider can pay whatever they choose.   He inquired if that is correct.  Ms. Wilson responded it is her position it is not a factor for selection in the RFP in regards to salary levels.  Mr. Ellis expressed his thanks.  Ms. Wilson stated the criteria was set forth in the RFP; and that is what the Board and the Selection Committee needs to abide by.

 

Commissioner Anderson inquired if transition was the only thing stated in the RFP.  Ms. Wilson responded yes.

 

Mr. Ellis stated it seems to be a very unusual discussion of things that are not in the RFP; and he inquired what is the Board's recourse if it does not happen, because it appears to be basically promises made that are outside the contract; stated it is an unusual situation to have two companies present instead of three companies, given the closeness of the other companies; and he has sat through these processes before, and he does not know if he has ever seen an RFP that has came down like this one.

 

Karen Lloyd stated she is present today as a private citizen; she lives in Volusia County, and she is an employee of JCS.  She stated she is representing herself today, to speak about JCS; she has worked for JCS for four and one-half years, first, as a probation officer, then she was promoted to assistant county Manager in Volusia County; and right now she is the county manager for Osceola County.  She stated she has never felt such appreciation by an employer as she has by JCS; as a manager, she is extremely proud of her staff, and the work that is done, it is not about the money and she knows that is what everyone thinks; there are many services provided by JCS to the courts; and the probationers who come to JCS are outstanding.  She stated she receives letters everyday from probationers about how helpful their Probation Officer was; she did work for a previous provider before JCS took over that contract; she has experienced the services of other providers; and she has experienced the present transition that the present County employees are going to experience.  She stated she has experienced it twice, once in Volusia County and once in Osceola County; it is not easy; but in both of those transitions that she has seen, for the majority of the staff, it has turned out to be so much better than it was before.  She stated JCS cares about its employees; it cannot promise what the County promises, but they o other stuff for the employees that make it worth working for them, because they are a good company.

 

Jennifer Lopez stated she is an employee of JCS; she has worked with JCS for about four years as a probation officer; and recently as of December 2009 she has been working with them as an assistant county manager.  She stated she wanted to come today to let everyone know that coming from another private probation company that she worked for, for three years, she can definitely tell the Board that JCS is the better company; and JCS is a great company to work for and she has no complaints.  She stated she does understand that when changes are made it is a little hard, but JCS did actually make that transition a lot easier for the employees; there were so many who had concerns about going from a different company, how the employees were going to be treated, and JCS is like one big, happy family by making sure everyone was welcome and appreciated.  She stated JCS gives the opportunity to advance; she has learned so much over the years with JCS that she would not have learned with any other probation company; she does want to point out, that probation officers are more concerned with rehabilitating offenders, which is more of the concern versus the money he or she is making, to help the citizens become better citizens to move on in the society in the cities and counties, which is more important than the money that is being made.

 

Harold Bazzel stated he is a retired Clerk of the Circuit Court from Dade County; and he understands now, why he retired after what he has heard today.  He stated he would like to share a personal experience with the Board.  He advised about six years ago, his county judges came to him and asked him if he would set up a process so there could be means to look at a new probation provider; he had the same provider for 25 years with poor service and motivation; and after doing the same process with the RFP, there were seven companies who responded.  He stated the committee recommended to the Board that it go with JCS who was selected as number one.  He stated it was the first county in Florida that had signed with JCS; there were thoughts of wondering if the right decisions were made; but he can tell this Board that after six years of service with JCS, it was the right decision.  He stated JCS was selected, they came in and interviewed every employee with the private probation provider that was in place, hired many of those individuals, and it was almost a seamless transition in the courts; the judges were fond of JCS; and the clerk's office really benefited from it, because a lot of the work done in the courtroom for the previous probation provider.  He stated the transparency is what really sold his board to choose JCS; there was information that had never been had before; there was access for everyone; and the software provided has never been seen before.  He stated JCS's commitment to service was ready to go on day one by being helpful, professional, and committed; he urges the Board to not be nervous about JCS, because they will do an excellent job; and Dade County has renewed JCS's contract since the four year contract expired.

 

Commissioner Fisher stated he has several questions for both companies; and inquired how much is the start up cost.

 

Mr. Cox responded PPS is part of a $4.5 billion corporation; it is anticipated to provide services to a court to provide services right off-the-bat; during the transition period of 30 days or a couple of weeks, PPS will be interviewing staff, enrolling them into the benefits plan, and give the 10 percent pay increase of all employees who meet the experience waiver.  He stated expenses can be incurred, but that    is the price of doing business before revenue comes in; and PPS has the financial strength to do so.

 

A representative from JCS stated JCS has cash-on-hand as well, as provided in the RFP packet and in the certified audit showing that the majority of the money that is taken in is rolled back in as a new start up, since JCS is a quick, growing company in the states that it operates.

 

Commissioner Fisher inquired if fee schedules are locked; and how would it be adjusted in the future.

 

Mr. Cox responded whoever is selected will then enter into a contract of negotiation periods with the County; the fee proposal that PPS turned in will be stood by for a period of five years; and the RFP has terms in it with two or three options to renew.

 

A representative from JCS stated he can tell the Board that in the past 12 years, he has never raised a fee schedule in any of JCS's accounts; even with the economy and inflation, it is felt to keep the original charge in all of the accounts that he oversees.

 

Commissioner Fisher inquired will the County facility be rented or open its own facility.

 

Mr. Cox responded PPS has offered to lease the current facility from the County or lease space elsewhere; and PPS's goal is for the County to not incur costs, because of PPS being of service and he hopes to be a part of the contract negotiations.

 

A representative from JCS advised in speaking with the employees it was stated the fire Department would like to have more space and it could be a current probation facility and if it was used some renovations would need to be made, because there is a need for offices versus cubicles and JCS has taken over buildings before in Osceola County, but other locations can be found as well.

 

Commissioner Fisher inquired if both companies agree to hire all of the County employees.

 

A representative from JCS responded JCS will do due diligence in looking at all of the employees, but there are 39 applicants and that is a bit more than the staffing needs are, he was given the number of 33 from the Purchasing Department; and if that is the case, then all will be hired, it just depends on what the final number of applicants is.

 

Commissioner Fisher inquired in the current model, it does not sound like all 39 employees will be hired.  The representative from JCS responded his current model is going to be 30 to 35 applicants after talking with staff and seeing the needs; and currently he has been told there will be 34 applicants.

 

Commissioner Fisher inquired how services level enhancements will work; and will anything be done that the County does not currently do; stated he knows there are technical operations that the County does not have; and he inquired if the hours of operations will be the same and will the same amount of clients be seen.

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Mr. Cox responded the big advantage of privatizing in general is that this is an industry that PPS will greatly enhance what the County is doing now; his impression of over several months of looking at the County's system, it has very dedicated, hard working professionals, who in his opinion need a few more tools; and he told the employees in the meeting that excellence will be expected from the employees, but PPS will give them the ability to achieve excellence in their results.  He stated each employee will have a computer at their desk, they will be taking field notes, updating all of the records in community service and financials when seeing a probationer; personnel in court staff and judges will be able to go online and find someone’s picture instantly; if there is someone in front of the judge and the judge thinks the person looks familiar to him or her, it can be found out because it right there on the screen; electronic monitoring options, behavioral health options, job placement, and resume assistance  can be offered exclusively; and PPS is focused on the reason why the probationer is there, but alsoto improve upon those things the staff has to have what it needs to get results.

 

A representative from JCS stated when it comes to technology, he thinks both systems are very similar; JCS has six counties within the State of Florida; the Board has the list of services that are unique to every County served; each county's needs are identified by what services are needed, such as in Osceola County there are free of charge classes for GED, English, and a second language class; in Okaloosa County there are a lot of military folks and there are veteran's court; and in Volusia County there are DUI specialty courts.  He stated once JCS has the chance to see what is needed, it will work with the courts in developing everything that is needed.

 

Commissioner Fisher inquired in the RFP process is the County legal in choosing one of these two companies.  Mr. Stultz responded the way the RFP was structured, it identified through the Purchasing Manual that Brevard County's process is the Selection Committee does evaluate based upon the established criteria, through that process the procedures were followed, he thinks the question is after the presentation of the Selection Committee's rankings to the Board, as the final decision making entity to decide to except the Selection committee's rankings or it may feel to go towards some other area on the RFP; and he does not know if Ms. Wilson has anything more to add.

 

Ms. Wilson stated the Board has issued an RFP, which is bound by the selection criteria that it provided its Selection Committee; if the Board wishes to divert from any of those criteria, she thinks there is going to have to be consideration of reissuing of the RFP of new criteria that is felt to be overlooked in the initial RFP, which were bound by the circumstance of the first RFP; and if any vendor here feels it to be grieved by any diversion from that process, it may be able to go to court later on.  She stated in respect of the process today, Mr. Glass is right; there is a protest procedure for the number two if he feels that for any reason he was aggrieved by any of the numbers; and the number two selected firm did not file a protest in that, and basically lost that opportunity to avail himself of that procedure.

 

Commissioner Infantini stated she is the first person who will ask that all projects go out to bid; at times she is not happy with whom may get selected through the selection process, and the selection process needs to be changed if she does not like it; she did not realize that the original protest process was not followed; she thinks it would be unfair for the Board to change its minds this far into the game; and there was a process, it went out to bid, a selection has been made, and if somebody does not get in within the timeframe she thinks every contract should be opened up for protest for everybody else in the County.  She stated she would like to remind the Board that a decision was made in 2007 regarding a certain CPA firm in a certain contract; accidents can happen, but it should not happen twice; and she will not vote for the other firm, she will only vote for JCS if it comes down to a vote, because it is inappropriate to change the game plan halfway through the process.

 

Commissioner Anderson stated he is a stickler for the bidding process; the reason for that is it takes the politics out of the process; and he inquired why the appeal was not filed to have a separate board look at the results.  Mr. Cox responded it was an unfortunate oversight on PPS's part; PPS has been engaged in discussions with staff, members of the Board, and various professionals for one year, which brought this concept to the County's attention; he is present today to see this through effectively doing as he has been advised to do throughout this process; he stands before the Board as the low bidder; this is a contract that does not cost the County a cent; and it is quite often that RFP and bidding through the country where procedures simply do not apply, because there is no tax money involved, the County is not writing a check, or paying for services.  He stated what the County is doing if it chooses the higher bid, it will go with the company who believes that Brevard County citizens should pay $20 more a month for the same service that JCS provides to Georgia and Alabama for $35 a month; and this Board, by its own vote last time, asked PPS to come and make a presentation, under the pretext that it would result in a decision based on those presentations, an open vote, which was done and provided demonstrations, and have the better technology.  He stated despite the strange scoring that went on with technology, behavioral health, fees, and in unsolicited ways from current staff, PPS will be the best decision for the County's current employees; and he does what he is told by providing presentations.  Commissioner Anderson stated he did not want the presentations in the event there was a violation or a proven violation on the County's procedures; he was one of the ones who was not happy with the Selection Committee’s selection; he has to adhere to what that committee had issued; he has a lot of respect for Mr. Cox, because he is the one who brought this to light by saving the County and the taxpayers money, but nobody has demonstrated that there was a violation or discrepancy in the Selection Committee; and that is why he wanted to have this presentation.  He stated he would be a hypocrite if he overruled the Selection Committee on this when he went on a tirade about the external audit issue in 2007; he knows there are some employees here and this is not part of the criteria in the RFP; and that cannot even be discussed.  He stated it will leave an open door to litigation from JCS if the Board does not choose PPS; and at this point, unless somebody illustrates to him some devious act taken by somebody on the Selection Committee, he cannot change his mind.

 

Commissioner Fisher stated in hindsight he wishes employees were a part of the process, but it was not done that way, and the Board will learn as it looks at other privatization.  He stated he knows the County benefits from a Florida Retirement System (FRS) and one speaker had asked if it can be kept in-house; and he inquired if the major expense is going outside of house versus these two companies coming in and running it cheaper than the County.

 

Stockton Whitten, Assistant County Manager, stated it is unknown is how JCS and PPS are pricing their proposals; the County's issue with regards to the pricing is the General Fund transfer for the pre-trial services; currently, the Board charges a fee through the Criminal Justice Services Department for probationary services of $60; the Board and the companies cannot charge a fee for pre-trial services, so the Board effects a General Fund transfer for those services; and there is no answer to that question from the agencies, which does not allow staff to provide to the Board an apples-to-apples comparison; all that is known is there can be no charge for the pre-trail, so the RFP issue there would be no transfer from the Board, with both company responses being they are not requesting the transfer from the Board and how they are recouping those costs is a better question for the companies.

 

A representative from JCS stated at the first meeting on August 3, 2010, it was stated that was an increase of supervision from the normal $45 to $55; the additional $10 will cover the cost of all pre-trial services within Brevard County; and in essence, it will be funded by the people on probation.

 

Commissioner Fisher mentioned JCS already has the cost worked into the supervision.  The representative from JCS responded that is correct; and that is why the cost of supervision is higher than what JCS usually charges.  Commissioner Fisher stated he is assuming that when a person gets arrested they are not guilty until they are found guilty; and they are not paying the pre-trial release fee.  The representative for JCS responded that is correct.                                

 

Mr. Cox stated PPS will apply its best practices as it has been doing for two decades, it will achieve a sustained 89 percent compliance rate that is achieved in all of its jurisdictions; so at $40 a month, there is going to be 2,300 people paying instead of 6,700 offenders, including warrants and folks in violation; it will increase that compliance number to a point as they have everywhere else; the revenue will be able to justify what is being done; when a fee of $55 is charged a month for basic probation supervision, it is effectively saying, or admitting, that a large portion of the caseload simply is going to fail and more money will have to be collected from those who are going to show up and pay, to offset that basic budgeted for failure; and PPS refuses to do business that way.

 

Commissioner Fisher stated he is going to go back to staff, because PPS can pay for pre-trial, probation, for less than what the County is charging; and he is having a hard time understanding it.

 

Mr. Whitten stated he appreciates the chance to follow up; staff can provide a list of cost per employee on health insurance; the Board's cost is somewhere approaching $10,000 a year; he does not know what the costs will be to provide them insurance, because he does not know what the employees are going to have to pay; he can tell the FRS costs are going to be for the retirement plan per-employee; he can tell what the cost is for Workman's Compensation and general liability; and he does not have their numbers to compare it with.  He stated the County is relying on their ability to cover those costs; the proposal for the next fiscal year’s budget included a reduction in force of four positions; the costs are being reduced; and it is hard to give comparative analysis without having their numbers set beside the County's numbers.

 

Howard Tipton, County Manager, stated he thinks if the Board is to go forward, the focus would be on the service level in the contract; the contract negotiations are going to determine everything; and if there is an opportunity for them to provide it at a lower cost, and still guarantee, especially for the judicial support agencies, it is really the driver for the County.  He stated the County does not know their business models or how they are able to make it work; the County's key is can the service be delivered; and that is the contract negotiation that will be had with whomever the provider is, or if it is kept in-house, it will continue to drive efficiencies.  He stated right now, the County's cost is not close; and it is not able to compete with what is being offered.

 

Commissioner Fisher stated one of his goals, if the County is going to privatize, is to make sure that the current employees have similar benefits; maybe their 401K is not as good as the FRS, but they still would have some benefits; and by reviewing the presentation packet from JCS, he does not see any health insurance benefits included.  He inquired if JCS provides health insurance.

 

A representative for JCS responded the packet was just a basic mock-up of basic costs; and there is health, dental, and life insurance included.  He stated there was a 401K program, but there was not a lot of interest, and has been done away with for a little while; and they are planning to go back into it and are looking at a more profit sharing margin so people can get the money now and invest in it how they choose rather than them forcing them to invest into a 401K.

 

Chairman Bolin inquired if JCS has health insurance available for the employees to buy or does it have a provision for it.  The representative for JCS responded it is provided through Blue Cross Blue Shield, it is $95 for current employees for full coverage PPO; and he read all the criteria to staff when he met with them.  Chairman Bolin inquired if it is 100 percent paid for by employee.  The representative for JCS responded no, it is $75 for JCS, and $25 for the employee.

 

Commissioner Anderson stated right now, the current people on the County's program that are on probation pay $60 a month; and both of the companies charge less than that.  He stated he does not know how the County can ever get to that level and compete with that as a government agency; the idea is to fund efficiencies or reduce the budget burden; and even if the County rolled forward every year, it will still be in the hole every year.

 

Commissioner Fisher stated this is tough; he thinks as privatizing is looked at. one thing to look at is what benefits the employees have and making sure the County is putting them in a susceptible situation; and he has concerns, and there will be negotiations at the end of the day.  He inquired if somebody is approved today, will it come back to the Board with a negotiated contract; and will the Board see that contract.  Mr. Tipton responded yes.  Commissioner Fisher inquired if it will show what kind of benefits the employees will have and will be able to make a decision at that time.  Mr. Tipton responded he does not believe that the benefit issue was a part of the RFP; the contract would be billed on the services and not so much the benefits to the employees, it will be a service-based contract; and that does not mean that it cannot be talked about, but it will not be in the contract.

 

Commissioner Anderson stated the County has to be careful because it does not dictate that to people who do lawn services for the County; the County does not ask them to provide their health service and retirement data; and if the County starts down that road, it will end up doing that with everybody that it bids, regardless of if it is in-house or out-of-house.  He stated he does not think it is a good policy to set that the County starts looking at all of its contracts and ask them what the benefit packets are.

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Mr. Tipton stated the letter from Honorable Judge Atkin summarized the concerns expressed by the County court Judges; there was concern over influence and impact of the profit motive on probationers being violated too easy or perhaps kept on probation too long because they were paying; there was concern over the financial liability given the costs that have been shared; this is the conversation being held right now; and he inquired if it is real to tell the County that it can be done for $40 or $55 dollars when currently it is being charged $60 and having to add additional dollars to it.  He stated there is concern over the services provided to the judiciary as part of first appearances and other monitoring activities, both in probation and pre-trial services.  He stated in terms of price, as the County looks at it, it is having a hard time competing with it from the staff level; where the County can compete is in the quality that is provided as it has been demonstrated; the judiciary, with their concerns, is expressing that County staff over the years has demonstrated a pretty good success rate; the County is in a financial crunch, which is causing the County to look at alternatives for this delivery mechanism, but it is not a reflection of the good work the County employees have done and will continue to be do, regardless of the outcome from today's meeting; and these are great people who have dedicated themselves.  He stated what is before the Board today is a choice of continuing with in-house or choosing one of the two companies present; and if one of the companies are chosen today, then the next step will be to meet with them and negotiate a contract based on the components of the RFP, but certainly understanding all of the Commissioners desires that the County employees have the best resolution possible if this is outsourced.

 

Commissioner Fisher stated however the County chooses to go, the company that comes back with a contract, he will not support it if it does not have some benefits and retirement options for the County's employees similar to what they have today.

 

Commissioner Anderson mentioned he thinks profit sharing is probably better in this economic decline.

 

Commissioner Fisher responded that is a good point; and he inquired if the JCS or PPS have seen any profits lately.  Mr. McMichael advised JCS has implemented a profit sharing program company-wide and are enhancing it now; and he thinks the Board will be pleased with it when it is reviewed.

 

The Board approved negotiating a contract with Judicial Correction Services, Inc. to provide Pre-trial services and misdemeanor probation services for the County.

 

 

Commissioner Fisher stated in the future of doing this type of process the Board learns and thinks that the employees should be part of the ranking process somehow, which was failed to be done with this; and the Board is learning as it moves forward with the RFP process.

 

Commissioner Anderson mentioned maybe in the future a Judge and a Public Defender can be added along with an employee.

 

Commissioner Nelson advised one thing he would like to see clarified is when these items do come back to the Board, there is full capacity to review the information provided, so there is no question about the County having the right to pick one or the other, because it should be retained by the Board; if the committee is going to make the selection and make a decision, then it does not need to come back to the Board; and if it is going to come back to the Board, the documents should address the Board having its final say without any kind of wording that does not allow the Board to do so.

 

Mr. Whitten stated Ms. Wilson's opinion was her; he does not know if there no is ability as a recommendation of the recommending board, he is not telling the Board he disagrees with Ms. Wilson's opinion, but he has always been under the impression that it is a recommendation from the Selection Committee; and it is up to the Board to accept, deny, or modify the final recommendation.

Commissioner Nelson advised he agrees with Mr. Whitten; in part of the discussion there was concern that, in effect, would have to find something wrong with number one, to be able to talk to number two; and as a recommending the body, the Board has the ability to review and make the decision.

 

Commissioner Anderson stated that is fine; as a duty of the Board, it needs to follow its own purchasing procedures and take the politics out of the process; he gets very nervous with any government board; and he does not think anyone here has ever done anything wrong, but it could get back into the good ole boys system.

 

Commissioner Nelson stated the counterpoint to that system is the Board is ultimately the one who need to be responsible; and he does not think he ever wants to give staff the ability to override a decision.

 

Commissioner Anderson stated that is why this gives the ability for the top two to come before the Board like today.

 

Commissioner Nelson stated when it can come back and there can clearly be a choice, it is ultimately done in the public so folks have the ability to hear the conversations, which is a disadvantage that the Board has.

 

Commissioner Infantini stated the Board can review these, but the process needs to be followed, which is if someone is not happy with the selection, a protest can be filed, and then it can come back to the Board, which is a process the Board circumvented; if that protest mechanism wants to be gotten rid of, the Board will become the protest mechanism, which she is okay with; and there needs to be a whole set of rules that the whole bidding public knows what they are, and then they have to be followed.  She stated if the Board is not happy with the consequences she suggests changing the rules.

 

Commissioner Nelson stated he does not disagree with Commissioner Infantini, but it would have been preferable to have had that process followed; he inquired if that legates the ability of the Board to do something else; and he does not know if it does that either though.

 

Commissioner Fisher stated the lowest bidder does not always mean it is the best service.

 

Mr. Whitten inquired as a part of the motion, could it include the negotiating committee will be established by the County Manager.

 

Commissioner Anderson stated he will amend his motion.

 

Commissioner Fisher inquired if an employee can be added to that committee.

 

Mr. Whitten suggested it can be done now.

 

The Board amended the motion to include directing the County Manager to establish a negotiating committee, including a Criminal Justice Service Department employee.

 

 

Commissioner Anderson inquired how are the employees going to choose who is on the negotiating committee.

 

Commissioner Fisher stated Ms. Heffernan will get with the employees and they will take a vote.

 

PERMISSION TO ISSUE OPEN PURCHASE ORDER (FY 2009/2010) EXCEEDING $100,000, RE:  MOSQUITO CONTROL CHEMICALS

The Board approved the use of the mosquito control chemical vendors, Clarke Mosquito Control and Univar USA, Inc., as sole source or authorized distributors; approved the issuance of a blanket purchase order for Univar USA, Inc. and authorized the Chairman to execute a contract exceeding $100,000; and approved adding four mosquito control chemicals to the current FY 09/10 blanket purchase order for vendor of record - Clark Mosquito Control.

 

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APPROVAL, RE:  BAKER ACT TRANSPORTATION EXCEPTION PLAN FOR MINORS

The Board approved the Brevard Transportation Exception Plan for Minors for submittal to the Florida Department of Children and Families.

 

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STAFF DIRECTION, RE:  ACCEPTANCE OF LATE PROPOSAL FOR MEDICAL DIRECTOR SERVICES REQUEST FOR PROPOSAL (RFP) #P-3-10-28

Commissioner Nelson stated he would like to see a third option; the contract that is currently in place has a one-year renewal, and is for Dr. McPherson; he does not like the fact that the Board would have to resolicit because that means it would just get the one doctor again; and to accept it being late would set a precedent, which he is uncomfortable with.  He stated his preference would be to exercise the option for Dr. McPherson for one additional year, which is on his contract, and to again go out to bid in time for next year.  

 

The Board renewed the Medical Director Services of Space Coast EMS, Dr. John McPherson, MD, for one year, expiring September 30, 2011.

 

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APPROVAL, RE:  ACCEPTANCE OF PARTNERSHIP FUNDING

Mike Knight, EEL Manager, stated in March 2009 the Board approved for the EEL Program to negotiate for funding to support with the Air Force on land acquisitions under the EEL Program; the purpose was to acquire scrub property that may eliminate or relieve development impacts to threaten habitat and species at the Cape Canaveral Air Force Station; in August 2009, the Board accepted a $900,000 contribution from the Air Force to support the acquisition of the Coastal Jewel property; and what the Air Force received in exchange for that is a deed of easement over the property to offset future development impacts on the Air Force location for threatened endangered species.  He went on to say due to the success of that, the Air Force obligated an additional $600,000 for this fiscal year for additional scrub acquisitions that have currently been identified by the Selection and Management Committee and that are being pursued through the Environmentally Endangered Lands Acquisition Program.  He stated today's request is for the Board to consider accepting the $600,000 from the Air Force as potential partnership funding in the event that the Board decides to purchase additional scrub properties through the EEL Program; the acceptance of the money today basically allows the Air Force to obligate the money before the end of its fiscal year and the County would have up to one year from the time of that obligation to use it if it chose to purchase those scrub properties; those scrub properties would come before the Board separately; the Board would decide if it wanted to purchase them; if it did it, would have the ability to use that funding; and if not, it would just go back to the Air Force. 

 

Commissioner Infantini inquired how much the Coastal Jewel property cost the County.  Mr. Knight advised $1.8 million.  Commissioner Infantini stated right now Brevard County is in the middle of an incredible funding crisis; it does not have the manpower, financial resources to maintain current EEL property; to take on new properties when the County does not have the financial resources and manpower to staff and maintain the current properties does not seem like a fiscally responsible thing to do; and while free money always sounds attractive, it is not free because it has to be matched and maintained.  She went on to add she would make a recommendation that the Board turn this down.  She stated on one of the properties, the person is having a hard time meeting their financial obligation to pay the real estate taxes on most of their other properties and it looks like another developer bailout to her; and she will not support the item.

 

Commissioner Fisher inquired if there is an economic development side to this that the Air Force wanted to possibly expand their launch facilities or something like that and that is why it is important to buy the property.  Howard Tipton, County Manager, replied for every acre of scrub habitat they destroy, they have to replace four acres somewhere else; it is a one to four ratio; their ability to do some expansion at the Cape, they have to mitigate or offset any environmental impacts; and that is where this money is coming from.  He advised the Air Force is looking for a partnership where it can achieve their goal and help the County achieve its goal.  Commissioner Infantini inquired if the County can just let the Air Force go out and buy their own lands; once the County buys it in the name of EEL, then the County is obligated to maintain it; and inquired why they do not just go out and buy it. 

 

Don George, U.S. Air Force, stated the Air Force cannot buy land; this is what this whole partnership is about; at some point the Air Force needs to save some scrub habitat before Kennedy Space Center and the Air Force becomes the only viable scrub habitat left; and at that point, it would impact their ability to expand.  He stated this morning the Board presented awards to Representative Poppell and the EDC, both of which referenced commercial space and Space Florida Complex 36, which is an old Atlas pad, and anyone coming in to use that would have to expand on that; and it would take out habitat.  He went on to say the Air Force is required by Fish and Wildlife Service to compensate one acre loss, four acres in compensation; right now the Air Force has 2,000 acres on the Cape under biological pinion with U.S. Fish and Wildlife Services conservation land; they only have 15,000 on the Cape; and the Board can see at some point they will run into a problem with expansion.  He stated recently they expanded the old skid strip, the airfield out there, bringing it up to standards, which it never was, either Air Force standards or FAA standards, to expand missions out there; and in that process they lost a lot of acreage as well.  He stated this expansion is a DOD funded program for all installations, not just the Air Force; he put in for the funding so that they could partner and hopefully help the County, because of the budget crisis and everything; and there are alternative potential ways of getting funded to do that under grants that could be explored as well.  He added this money the Air Force just received has to be committed by the 31st or it goes back to DOD. 

 

Commissioner Fisher inquired if that will hurt the Air Force's ability to expand; with Mr. George responding it could in the future.  Mr. George stated Space X just had come up as commercial; there are two EELV pads up there; when KSC wanted to build a 200-acre commercial launch pad, it got wiped out; and the option was to go to Cape Canaveral Air Force station.  He stated any new construction that comes up there, even if they used an old launch pad, they were pretty small compared to what is used now, so there would be a requirement to expand new processing facilities, new support facilities, and they have the third largest population of scrub jays in the state. 

 

Commissioner Fisher stated the Board may get a chance to come back and see what that property might be; at this economic time, and with what is going on with the Kennedy Space Center, the current administration in the White House said commercial launch is the way of the future; and the Board should not do anything to hurt that.  Commissioner Fisher made a motion to approve the item.

      

Commissioner Nelson stated this is, in effect, becoming business friendly, even though it involves the Air Force; when the Air Force needs to do the expansion they will have the element of it out of the way; to him, it accelerates the ability for them to accomplish their mission, which is to launch vehicles and to do it safely; and that is being business friendly.  Commissioner Nelson seconded the motion.

 

Commissioner Anderson stated he does not mind at this stage giving the Air Force the ability to get the $600,000; to County staff, he will not support any property moving forward unless there are some funding mechanisms outside of the Brevard County taxpayers that are going to fund maintenance of the properties in the future; and when staff comes back with the properties, he wants to see a plan that addresses that.  He went on to state if there are grants attached to that, he would like to see it in the future or if there is a partnership the County can have with the federal government; but the County cannot take on any other burdens.

 

Commissioner Infantini stated the last time the Board approved just seeking and getting the opportunity for the grant, which was the Crab Shack, and that was used against the Board as it was a 5:0 vote to only apply for the grant; once the Board applied for the grant, it just zoomed through; and she will not support applying for the grant because she sees what happens moving forward.  She added the Coastal Jewel property was in Malabar on U.S. 1; Commissioner Fisher does not want to do it on U.S. 1 in Titusville; but it is fine to do it in District 3.  She went on to say Malabar has a hard enough time meeting its tax base and raise its tax rates.

 

The Board approved acceptance of partnership funding from the United States Air Force, through the congressionally mandated Department of Defense Readiness and Environmental Protection Initiative (REPI) Program, in exchange for conservation easement of scrub habitat through land acquisitions by the Environmentally Endangered Lands Program, allowing the Air Force to be formally obligate their current fiscal year funding of $600,000 by August 31, 2010.

 

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APPROVAL, RE:  RFP P-4-09-18 REPLACEMENT OF 9-1-1 SYSTEM NETWORK AND CUSTOMER PREMISE EQUIPMENT - CABLING AND ELECTRICAL COMPONENT

County Manager Howard Tipton stated Bob Lay, Emergency Management Director, is available to set the stage or answer any questions the Board may have. 

 

Commissioner Infantini inquired if this was put out to bid.  Mr. Lay advised staff did not put it out to bid; there has been several discussions about it; it should have been part of the RFP the Board approved in February; and it was not, however, there was extenuating circumstances if she would like him to explain.  Commissioner Infantini inquired why it was not part of the RFP.  She went on to say high dollar items are continually being presented to the Board that have to be approved right away; stated she cannot support these last minute decisions; and she is sure it is needed, but she is not comfortable making a big dollar decision at the last moment.

 

The Board executed Project Pricing Agreements, and approved utilization of AT&T for the required electrical and cabling upgrades at the 11 Public Safety Answering Points (PSAP).  The installation of the recently awarded NG9-1-1 system network and customer premise equipment cannot begin until the upgrades occur.

 

 

Mr. Lay stated it is getting into the season now; there are two named tropical storms in the Atlantic; there is another system moving off of the coast of Africa; the County has not had a storm in a long time; and the opportunity for these storms to develop and impact the County is beginning to improve.  He added everyone needed to be vigilant about it and get everything in place.

 

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APPROVAL, RE:  MELBOURNE-TILLMAN WATER CONTROL DISTRICT MEETING DATE

The Board approved holding the Melbourne-Tillman Water Control District meeting on Tuesday, August 31, 2010 at 5:30 p.m. to be held at the City of West Melbourne Council Chambers, 2285 Minton Road, West Melbourne.

 

 

The meeting adjourned for Executive Session, Re:  Discussion of the Status of Collective Bargaining Negotiations with Laborers' International Union, Local 678, at 5:08 p.m. and reconvened the meeting at 5:50 p.m.

 

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EXECUTIVE SESSION, RE:  DISCUSSION OF THE STATUS OF COLLECTIVE BARGAINING NEGOTIATIONS WITH LABORERS’ INTERNATIONAL UNION, LOCAL 678

 

Chairman Bolin read into record the Notice of Attorney-Client Private Meeting as follows:  On Tuesday, August 26, 2010, at 11:30 a.m., or as soon thereafter as possible, the Brevard County Board of County Commissioners will meet for the purpose of discussing the status of Collective Bargaining Negotiations with Laborers' International Union, Local 678; the persons attending the attorney-clinet private meeting will be:  Robin Fisher, County Commissioner District 1; Chuck Nelson, County Commissioner District 2; Trudie Infantini, County Commissioner, District 3; Mary Bolin, County Commissioner, District 4; Andy Anderson, County Commissioner, District 5; Howard Tipton, County Manager; Scott L. Knox, County Attorney; Morris Richardson, Assistant County Attorney; and Angel Hampton, Brevard Associated Court Services, Inc.  She advised the attorney-client private session will be held in the County Manager's Conference Room Third Floor of Building "C" at the Brevard County Government Operations Center, 2725 Judge Fran Jamieson Way, Viera, Florida, 32940; and the estimated length of the attorney-client session is one hour or less.

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AMENDED BUDGET PRESENTATION/DISCUSSION, RE:  FISCAL YEAR 2010-2011

Howard Tipton, County Manager, stated he has a budget presentation for the Board; and there will be some questions for the Board at the end of the presentation for some final direction as staff prepares for the September public hearings.

 

Stockton Whitten, Assistant County Manager, stated most of the presentation is a summary of what was presented to the Board in the County Manager's Memo from August 25th.  He advised the outline for the presentation is to talk about the budget adjustments, to talk about the allocation of the rollback dollars, to talk about the use of those dollars, the position adjustments, to talk about defeasance of bonds, and to talk about balance forward and reserve numbers, and issues with regards to cash management.  He stated on August 3rd, the Board approved the advertisement of the rollback millages for purposes of the TRIM advertisement; and the TRIM advertisements went out yesterday or the day before.  He noted a simple definition of rollback revenues are those tax revenues that are currently being collected in the current fiscal year budget; those amounted to $20.4 million; those are not new revenues; they are simply a collection of the same amount of tax revenues next year that the Board is collecting this year; and they do not supplement the revenues that are lost from other State shared sources; but they are simply the collection of the same amount of tax revenues.  He stated he will talk about the program and service reductions that are above and beyond those rollback revenues; and noted in spite of the rollback revenues, there were $24 million in reductions that needed to occur.  He stated the Board has discussed and is aware of the 12 furlough days; the days are still in the reformulated budget presentation; and noted everything that is not addressed in the presentation as being placed back in, is still currently out of the proposed budget presentation staff will get to the Board in the next couple of weeks some revised budget pages; but for today's presentation, those items staff has not highlighted as being placed back in the budget are still out of the budget.  He noted the Board made a decision earlier in the meeting to negotiate with the first-ranked vendor for the outsourcing of Criminal Justice Services; and also, there were a lot of vacant position reductions through attrition and through the reduction of some field positions. He stated in focusing primarily on the $20.4 million of rollback revenues that were placed back into the budget are being submitted to you as part of a revised budget proposal.  He stated he would like to talk about some broad categories in which the $20.4 million is proposed to be reallocated into; cash reserves is $7.6 million; public safety, which includes the Sheriff, Fire Rescue, and Emergency Management is $4.4 million; culture and recreation is $4.3 million; infrastructure, transportation, and environment is $2.8 million; health community and economic services is $1.1 million; outside agencies is $660,000; management services, which are a lot of the internal administrative services and functions, is $161,000; there were some mandated services for $63,000; and there were also some adjustments that were positive adjustments between the original budget proposal and the resubmitted proposal of approximately $53,000.  He noted for Constitutional Officers there were savings of approximately $738,000.  He stated in the memo the Board received, and in the presentation, there is a recommendation of approximately $7.6 million to be placed in reserves to address cash flow, cash balance, and reserve issues; and so the proposal submits $7.6 million, $4.1 million of which would go to cash balances; $1.8 million would be a replenishment of the eventual Embraer payment.  He stated staff is projecting that there is going to be a $1.2 million Medicaid bump up; the County is required, as an unfunded mandate, to make Medicaid payments; and it is projected that that increased expenditure will be $1.2 million.  He stated for Sematech, to recover the $500,000 the Board previously approved, staff is suggesting that $500,000 be placed in the cash reserve.  He advised under the area of public safety, Criminal Justice Services, the first year projected savings would be approximately $250,000; that is a little off from the general revenue transfer because of the pay outs that are associated with County employees moving from County employees to private sector; and so there are a number of accrued leave pay outs that have to be made with regards to that; but it is still projected that the first year savings will be $250,000.  He stated under Emergency Management is $41,000, which is the reestablishment of a contribution to Brevard 2-1-1 for its services; and also for special needs services during emergency activations.  He stated First Responder is $876,000, which is a 10 percent reduction over the current fiscal year allocation; Fire Station 86, which needs to be reconstructed is $1 million; Fire Station 86 is coming out of the MSTU property tax, and so that is not a General Fund transfer; and it would come out of the rollback revenues from the fire control MSTU.  He stated the rollback numbers for the Sheriff's Office's Law Enforcement MSTU are $1.9 million; and then there is a compliment General Fund transfer of $69,000 for an additional court deputy that is needed as a result of receiving two additional judges.  He advised under culture and recreation and Library Services, the Board will recall that it previously taken an action to keep the funding whole; there was some additional funding that was provided in payment in lieu of taxes from the special revenue agencies; and the rollback gives them an additional $489,000, which allows Library Services to purchase media.  He noted the original number was a very small amount that was going to be budgeted from fines or fees, or donations from the Friends of the Library; and the reconstituted proposal actually gives Library Services some tax dollars to purchase media with.  He stated in Parks and Recreation, primarily all of the service hours associated with the community centers have been restored in the amount of $3.8 million; the Historical Commission position has been restored; the original proposal addressed some reduction in maintenance and some reduction in facilities maintenance; and those have all been restored at the cost of $2.2 million. 

 

Commissioner Infantini inquired of the $3.8 million for Parks and Recreations, is it just maintenance, and is the Board not going to be building any more community centers.  Mr. Whitten stated staff will talk about the defeasance of bonds later in the presentation.  Commissioner Anderson stated the Board has not made a decision on defeasance; if the Board does defease, does staff just add that operational money back to Parks and Rec, or does it subtract it out.  Mr. Whitten replied, the defeasance will allow for a reduced debt schedule.  Commissioner Anderson inquired if the Board will get operational money from that based on the savings.  Mr. Whitten responded in the proposal for North Merritt Island, all of the millage is going to the debt side; it will reduce the debt schedule in anticipation of the valuations dropping again next year. 

 

Mr. Whitten continued, the infrastructure, transportation, and environment, and facilities is $289,000, which is the Palm Bay Service Center; that closure has been reinstated; the Merritt Island Service Center is for the replacement of the elevator.  He stated in Planning and Development there is $59,000 for a Planner I Zoning Permit Review section; and $4,000 for the Clerk to the Special Magistrate.  He noted $2.4 million is for Public Works for roadway resurfacing, traffic signals, maintenance and installation, pavement marking, and traffic sign maintenance and replacement; that figure is also supplemented by the unspent bond proceeds that are not being proposed to be defeased; and the Board will have an opportunity to discuss how it wants to allocate those when it has the transportation workshop. 

 

Commissioner Anderson inquired if that $2.4 million includes a rollback of the MSTU's. Mr. Whitten replied it is MSTU's, General Fund transfer, and also include $671,000 that was proposed as a result of the defeasing of bonds; staff was going to move expenses to LOGT; and that is not occurring now, as staff was able to reinstate that General Fund transfer.  Chairman Bolin inquired if the Commissioners have the option of not raising an MSTU in his or her particular district; with Mr. Whitten responding affirmatively. 

 

Mr. Whitten stated $180,000 in Housing and Human Services consists of the Veterans Services Officer, the Health Department Transfer, and Emergency Services; and Country Acres is a Title IV grant match, and also the reinstatement of Brevard 2-1-1. 

 

Commissioner Nelson stated the Board fully supports the Veterans Services Officer that is being held vacant; there is probably Board consensus that it will be funded; and instead of keeping it vacant at a time when that position is needed, go ahead and fill it.  County Manager Tipton stated the Board can consider it done. 

 

Mr. Whitten advised Mosquito Control, as a result of the rollback millage, is $679,000 for capital equipment and reserves.  He stated of the outside agencies, Brevard Cultural Alliance is $150,000 for operations; and Community Based Organizations is $510,000.  He stated Management Services is $161,000 for the internal services agencies; the Budget Office is 17,000; Central Services is $110,000; Human Resources is $17,000; and Information Technology is $17,000.  He stated as far as mandates, as staff continues to look at revenue projections and tweak the budget proposal, those revenues that were associated with the program were also revised and necessitating a General Fund transfer of $63,638.  He noted under the general operations, staff is proposing to finance through commercial paper some capital purchases in the amount of $1.2 million; and those are for the Sheriff's Office.  He further stated as the Board rolls back its millages, the tax increment district payments go up; it is an increase of $819,000; the non-departmental expenses is $380,000; and the savings from the sales tax bond refinancing is $82,000.  He stated some dollars were added back into the Constitutional Officers; the Clerk to the Board is $76,000; the Supervisor of Elections is approximately $43,000; the Tax Collector is $830,000; and the Property Appraiser is $27,300. 

 

Alphonso Jefferson, Budget Director, advised he would like to talk to the Board about position adjustments that have changed from the proposed to the revised budget; in the proposed budget, the position reductions were 204 positions; in the revised budget, it is down to 163; 76 of those positions are vacant; and 87 of those are filled.  He noted 29 of those positions are supervisory, and 134 of them are non-supervisory.  He stated the revised budget restores 41 positions, as a result of the rollback proceeds; and the revised budget also assumes the outsourcing of the Pre-Trial Release and Misdemeanor that the Board already approved, which is 36 positions.  He stated the number of full-time equivalent (FTE) employees continues to be streamlined; the personnel has continued to be reduced over many years; right now, the County is trending at the 2001 level of FTE's; the highest peak was 2007; and from then until now, there has been a 16 percent decrease. 

 

Mr. Whitten stated the unspent bonds proceeds associated with the LOGT are not in the revised budget proposal, but three items are, which are Parks and Recreation Merritt Island of approximately $4 million; it is projected that over the term of that debt service if the Board were to defease $4 million, that debt payment would be reduced by $153,000 the first year, and then all the way up to a high of $455,000; for the Parks and Recreation South Brevard bonds, there are $15 million in unspent bond proceeds, and proceeds that are not dedicated to a specific project; and the first year reduction in the debt schedule would be $635,000, all the way up to a high of $1.7 million.  He stated the proposal for EEL's '04 is $4 million; that schedule would be the same as the Merritt Island schedule at $153,000 in the first year, and $455,000 as a high throughout the term of that debt schedule; the '91 EEL:'s are not on this schedule and not being proposed because of the action the Board all took earlier; that $4 million in conjuction with the contribution, or the partnership, with the Air Force would be to acquire those seven properties that were listed there; and that is why staff is not recommending defeasing the '91 EEL's.   He stated the defeasance of the bonds are proposed in consideration of the valuation drops that are projected by the Property Appraiser's Office; the Property Appraiser's Office had a projection of 17 percent valuation drop after next fiscal year, a 10 percent drop after that, and then a seven percent drop after that; and this is to get ahead of those valuation drops and to address the ability of the Board and the County to issue debt if those scenarios hold true. 

 

Mr. Jefferson stated staff uses balance forward as a revenue source to balance the budget; a very small portion goes to some operating components; the balance forward numbers for 2001 are projected to be $19.4 million; and compared to 2010, that number has decreased significantly by almost $7 million.  He advised when looking at the balance forward projection for 2011, a large portion of it is there to shore up the reserves; it is really not being used for a large portion of the day-to-day operations; but it fluctuates over a 10-year period; and over the last four years, the County has been trending down on its balances. 

 

Commissioner Nelson stated the Board has been criticized during the boom of having too much money; the Board is trying to trend it back up to some of the highest numbers it ever had for reserves; and stated for years the County did fine with a lesser number.  Mr. Jefferson stated in the time frame between 2002 and 2004 was different scenarios in different times, and different types of expenditures occurred in that time frame; fiscal years 2010 and 2011 is when a large part of cash starts going out the door; that is when the General Fund transfer begins to go directly to the Sheriff, which will be $7.5 million to $8 million; the tax proceeds are not received until sometime in the November time frame; and having that reserve level at $22 million, like is being proposed, shores up the cash balance.  Commissioner Nelson stated the point was that the Board successfully went through the '90's and into 2000 at lesser numbers; and now, the Board has rolled forward and is taking a third of that money and putting it into reserves.  He stated the expectation was that if the Board went to roll forward it would create the ability to address more of the concerns that it heard during the budget workshops and meetings; there was never a discussion that one-third of it would go towards cash position; and he was disappointed when he looked at the numbers because the Board is still making some very significant numbers.  He is at a loss to understand how the Board got to taking care of financial cash flow versus taking care of the service needs that were addressed at a previous meeting. 

 

Mr. Tipton advised within the $7 million that is being discussed about going into reserves, there is $1.8 million going into the payment of Embraer; there is $1.2 million going into Medicaid; and there is $500,000 for Sematech.  He stated the balance, which is approximately $4 million is difficult to project; the County could be anywhere from $2 million to $6 million short in the revenues coming in; staff is proposing to put $4 million aside to help meet that need; and he cannot say what other bodies did prior to his arrival, but for him, it is not just taking a loan for cash flow, it is recognizing that the County is going to be short part of that cash in the coming months.  Commissioner Nelson inquired where would the Board have been if it approved the other millages as was proposed originally.  Mr. Tipton replied the Board would have been that much short; and the rollback helped fill a hole and to restore some services, but staff is recognizing that there is going to be a shortfall, and is just trying to budget for it. 

 

Commissioner Anderson stated inquired if $22 million is the optimum number; and inquired if that number affects the financial viability, such as bond ratings.  Mr. Whitten replied what the rating agencies look at the extent at which the Board replenishes its reserves, and if they have gone down, and if the Board has a plan to replenish those; that is primarily the question that is asked each year; the County goes up and down in terms of cash flow; last year, in September, there were 18 days where funds 01 and 02 had a negative cash flow; at the end of the month the cash flow was $20 million; but the cash flow issues are a product of expenditures occurring on an even cycle; and State revenues do not occur on that even cycle.  He stated for a couple of purposes, the reserves and balance forward issues are important; staff is projecting what the balance forward numbers will be in March and April for some time that is reconciled next March or April; staff is always making an educated guess at what that number is; and if the Board does well, then there are additional dollars to throw at other expenses, or to put back in the reserves; but if it does not do well, then it has to make some real cuts.  He stated the County has taken loans in 1997, 1999, and 2004, and 2005; the Board can see as the fund balances go up and down, it really is a fairly good indication of the extent at which there will be cash flow issues.  He stated for example, the City of Cocoa has a rainy day cash reserve where it is just money sitting in the bank; the City is not using it for cash flow; it is not being used for daily operational expenses; but it is just money sitting there in the bank.  He noted the County uses cash balance for its cash flow for emergency reserve and to hedge against those fund balance projections that it made the previous year.

 

Commissioner Nelson stated his concern continues to be that the vote the Board took was to save fund balance as opposed to meeting a service need and listening to the citizens; and frankly, if the Board voted to approve the budget that was in front of it, there would have been a crash and burn.  He stated three of the Commissioners are getting beat up on a regular basis for raising taxes, which it has not done, when now services are not even being saved. 

 

Commissioner Anderson stated he would like to see the reserves as healthy as possible; and restoring services is important, but he does not think it is as important as keeping the County from going bankrupt. 

 

Chairman Bolin stated she is hesitant because the Board does not know what is around the corner; she is trying very hard to put as much in reserves as possible because the Board got hit with Medicaid that it did not anticipate; and the Board has not yet hit the peak yet with its situation yet with all of the space retirement.  She stated she believes strongly that if money is put into reserves, the Board will have it for the next year in case something comes up. 

 

Commissioner Fisher stated he noticed seven employees in Public Works will be laid off; and inquired what that will do to the service level in Public Works.  Mel Scott, Assistant County Manager stated there will be service level impacts; what staff has tried to do is balance the restoration across the spectrum of the many needs that there are; and with the allocation that staff felt able to give Public Works, it was balanced 50/50 to the manpower that gets things done.  Commissioner Anderson inquired if the seven positions were filled or un-filled.  John Denninghoff, Public Works Director, stated of the 13 positions on the chart that are being eliminated, seven had been restored from what was originally proposed; of those positions that are being eliminated they are a specialized group that is currently filled; there are six bridge tenders that are currently staffing the Max Brewer Bridge; the other positions are vacant currently; and through attrition, the Department has been able to avoid any warm-body layoffs.  He noted there will still be seven positions eliminated. 

 

Commissioner Nelson stated it is misleading when talking about unfilled positions because they are vacancies that have occurred for a variety of reasons; it does not mean that the work went away; and it just means that they have become vacant and the County is not going to do that service.  Chairman Bolin stated the work could be absorbed by another employee. Commissioner Nelson pointed out that two employees can put down more asphalt in a pothole than one can. 

 

Commissioner Fisher inquired what are the seven positions being eliminated in Public Works.  Mr. Denninghoff replied the seven positions are primarily out of the Road and Bridge division, which is the largest division; they are a combination of automotive equipment operators, maintenance workers, and labor supervisors; the problem with the labor supervisors is that there is less supervision of some of the employees, so one of the other supervisors has to travel from one work site to another work site; and sometimes workers will go without supervision. 

 

Commissioner Fisher inquired if the positions being eliminated include mowing, roads, and ditches.  Mr. Denninghoff replied the primary area that is being reduced is going to be in drainage repair work; there will be some impact to mowing; and at this point, no impact to road grading.  He noted no heavy equipment operators or truck drivers were eliminated, nor were the countywide ditch cleaning crew.  Commissioner Fisher stated he would like to see half of those positions restored.  Commissioner Anderson stated he agrees with Commissioner Fisher, but on the operational side, not on the supervisory side.  Mr. Denninghoff advised seven positions have been restored; five of those were front line employees; but there are still seven more that are in the same category that are being eliminated. 

 

Chairman Bolin inquired how much would it cost to restore half of the seven eliminated employees.  Commissioner Infantini inquired how many employees are currently in Road and Bridge.  Mr. Denningoff replied the Road and Bridge operations is approximately 100, and with administrative staff there are 174 Countywide, including the road construction crew; and in the maintenance area there are 113 employees.

 

Mr. Tipton stated the cost of reinstating half of the seven eliminated positions is approximately $100,000 or $110,000.  Mr. Denninghoff advised maintenance workers are $35,000 each; automotive equipment operators are $40,000 each, including benefits. 

 

The Board authorized County Manager Howard Tipton to transfer funds, as necessary, from Solid Waste to whatever fund is needed, with the understanding that all funds transferred will be considered loans and will bear interest.

 

Mr. Jefferson stated he would like to talk about the cash management approach; on a daily basis staff is monitoring the cash position; a report goes out every morning to County Management letting them know exactly where the County is on the cash position; and the County is getting available cash as of August 26th.  He noted the cash position gets lower as the end of the fiscal year gets closer.  He stated staff wants to try to expedite any reserve transfer that it can bring into the General Fund as quickly as possible; staff is also discussing with the Charter Officers if they can limit their need on General Fund dollars on the first quarter as well; and do they need their full General Fund transfer in October or in November.  He stated it is important, as the Board talks about the cash position, that some authorization be given to the County Manager to allow staff to do some type of loan at some point to shore up the cash position moving forward into October; October will be the month where that first transfer goes out and the County could easily go negative; and it is important for the County Manager to have some type of authority to move those monies in order to shore up the cash position going into the new fiscal year.

 

Commissioner Fisher stated as he understands it, it is a temporary loan until the Board gets that cash flow; he understands the Board has that issue because of the way the tax revenue is collected; and it is a projected income that is going to come it, it just might come in November, December, or January.  He stated he is comfortable giving the County Manager that authorization; and inquired if Solid Waste is the fund Mr. Jefferson is recommending the money to come out of, as it has always been healthy.  Mr. Jefferson responded affirmatively.

 

 

The Board authorized County Manager Howard Tipton to transfer funds, as necessary, from Solid Waste to whatever fund is needed, with the understanding that all funds transferred will be considered loans and will bear interest.

 

Commissioner Nelson pointed out that Solid Waste actually makes a little money off of that, so it stays in the County.

 

Mr. Tipton stated staff had three areas to discuss with the Board this evening; the first is Board direction on defeasing bonds for Parks and EEL's; the second area would be concurrence that the proposed cut back initiatives, such as the furloughs, and continuing with the hiring freeze; and the last area is the allocation of the rollback proceeds, one adjustment which has already been given; but if there are other discussions or adjustments that need to be made, he would like to have that discussion. 

 

Commissioner Fisher stated the Board had some discussion a few weeks ago whether or not there were some partnerships that might be available for the Board before it made a decision on defeasing the bonds for Parks and Recreation and EEL's; and inquired if the Board wants to defease those bonds before having those discussions.  Mr. Whitten replied if the Board could give staff the authorization to proceed; it is the most conservative estimate of the unspent bond proceeds; as it is discussed, there will be some additional unspent dollars if the Board desires to do some sort of partnership; and obviously, the defeasance of the bonds will not happen overnight, so the Board has time to address both.

 

Chairman Bolin inquired if there is any discussion on the cutback initiatives or the rollback proceeds.  Commissioner Nelson stated regarding the rollback proceeds, he thinks the Board has some work ahead of it in talking about some of the individual areas, such as Animal Services, as he is still concerned the Board is cutting the enforcement side versus the shelter side; and it was his understanding that the Animal Services Department was going to help best on the sheltering side, but the enforcement side is being cut.  He stated the Board is basically putting all of its money in the shelters and not into enforcement; and the Board's primary responsibility is in enforcement.  Commissioner Anderson noted the Board did not move forward with the RFP; and inquired if the Board could revisit the privatization of the shelters.  Mr. Tipton stated he is hoping that the non-profit organization the Board discussed at a previous time will be able to contribute in the next fiscal year; the shelter operations, as with many other areas, are really not sustainable; it is a bare minimum operation; and if the Board were able to move more into the enforcement side, the Board would probably be looking at closing the north shelter.

 

Commissioner Infantini stated if the Board is talking about the allocation of funds, she would rather take some money out of the CRA funding, because she does not see that as one of the critical core services that is essential to get the government through this next year of operations, and fund the animal enforcement.  She stated she cannot see getting rid of 10 animal enforcement positions when Natural Resources has reduced functions it has to perform right now because no one is applying for building permits; and she would think the Board could take a few positions out of NRMO and have animal enforcement. She stated she is not proposing to use the rollback money because she did not propose to have the rollback money; but she would not mind taking it out of the CRA funding, or anywhere else. 

 

Commissioner Fisher stated in the last three or four years the Board has cut 420 positions; and even with the rollback, the Board is cutting $24 million this year.  He inquired if the Board cut $30 million last year.  Mr. Whitten replied last year was probably closer to $24 million or $30 million; and the year before that was approximately the same amount.  Commissioner Fisher stated the cuts have been huge; the public needs to understand that County government is down 420 people and $75 million; and at some point it has to be figured out how to keep up the level of services. 

 

Chuck Bogle, President, Space Coast Fire Chiefs Association, stated he would like to talk about the information the Association provided to the Board in regards to the First Responder Program; the Association has created a business plan, as directed by the Board, and identified the actual funding, which comes up to $2.3 million; and the Association also came up with a new methodology of determining what its eligible costs would be, which was conservative at $1.7 million.  He stated the Association has identified the First Responder Program as ALS only; the only thing the Association asks of the Board is to find a way to do continual funding; in the plan, it identified MSTU and/or MSBU, and increased transfer fees; and there are other options as well.  He stated the First Responder funding should be continual so that the Association does not have to keep coming back to the Board; it is a critical, core, public safety service; and it is important that it is maintained continually. He added, the quick response of the First Responder Program saves lives; and he supports the Board's support and consideration. 

 

Commissioner Fisher inquired where is Fire Station 86, which has $1 million set aside for restoration. Fire Chief Larry Collins replied Fire Station 86 is the furthest south station in the County, in Micco.  Commissioner Fisher inquired if it is a new station.  Chief Collins advised it is quite an old station that is not wind resistant or up to standards; and it is in need of replacement.  Commissioner Fisher inquired if those are MSTU dollars set aside for the restoration.  Chairman Bolin replied it is Countywide MSTU dollars.  Commissioner Fisher inquired if the Board did not want to restore Fire Station 86, could it redirect those dollars.  Chief Collins stated the MSTU is for fire purposes.  Commissioner Fisher inquired if any General Fund dollars are being transferred to Fire Rescue.  Chief Collins responded just for the EMS portion; the MSTU and the Fire Assessment deal with the suppression portion.  Mr. Whitten clarified the Fire Control MSTU are tax dollars for fire; EMS is a General Fund transfer for EMS; the First Responder is a General Fund transfer; and the fire dollars are not mixed for the EMS transfer or for the First Responder transfer. 

 

Assistant Fire Chief Dennis Neterer explained the General Fund is countywide; everyone in the County pays into the General Fund; and the General Fund dollars are used for OSHA and EMS.  He advised the MSTU is only paid into by the unincorporated County and the four municipalities that contract with the County for service, which are Palm Shores, Melbourne Village, Grant-Valkaria, and West Melbourne; and the other residents that are paying into the countywide General Fund do not pay into that MSTU.  He stated Station 86 is the one that is in the farthest southern end of the County and is the most remote; and he worked there in 1979, which gives the Board some idea of how old the building is.  Commissioner Fisher inquired if the Fire Station still operates.  Mr. Neterer replied, yes.  Commissioner Fisher stated so it is not that it is being closed, it is just be remodeled.  Mr. Neterer stated it will be demolished in order to build a new station and make it wind resistant; and stated the building will not take a storm.

 

Mr. Whitten stated just to be clear, fire dollars and EMS are separate.  Commissioner Fisher inquired if the Board could use the dollars for fire operation without taking some General Fund transfer.  Mr. Whitten stated there is no General Fund transfer to fire.  Commissioner Fisher stated there is a General Fund transfer to EMS; and inquired if he could make less of a General Fund transfer.  Chief Collins responded no, those dollars are committed to fire-based activities, which is very clear in the referendum.  Chairman Bolin noted it is for fire services anywhere in the County. 

 

Commissioner Nelson inquired if the Budget Workshop has been scheduled.  Mr. Tipton advised the first public hearing is September 14th; and there is a Board meeting on September 7th, if the Board would like to dedicate a portion of that meeting to budget discussions. 

 

The Board reached consensus to have a budget discussion at its Regular Board meeting on September 7th. 

 

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.ADJOURNMENT

Upon motion and vote, the meeting was adjourned at 7:00 p.m.

 

 

ATTEST:                                                                                                                                

                                                                        MARY BOLIN, CHAIRMAN

                                                                        BOARD OF COUNTY COMMISSIONERS

                                    _                                  BREVARD COUNTY, FLORIDA

SCOTT ELLIS, CLERK