April 25, 2007 Special
Apr 25 2007
MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
April 25, 2007
The Board of County Commissioners of Brevard County, Florida, met in special/workshop session on April 25, 2007, at 7:07 p.m. in the Government Center Florida Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairperson Helen Voltz, Commissioners Chuck Nelson by telephone, and Mary Bolin, County Manager Peggy Busacca, and County Attorney Scott Knox.
Chairperson Voltz led the assembly in the Pledge of Allegiance.
DISCUSSION, RE: LAW ENFORCEMENT MSTU FEES WITH THE TOWN OF MALABAR
Chairperson Voltz advised Commissioner Nelson is stuck in traffic on I-95 but he will participate in the meeting by phone.
County Attorney Scott Knox noted the meeting is required under Chapter 164, of the Florida Statutes, which is designed to resolve disputes between governmental entities; the Town of Malabar and the County are in dispute over the issue as to whether or not the City should be paying for law enforcement services; the County Manager Peggy Busacca and he met with the Mayor of the Town of Malabar Thomas Eschenberg but did not resolve the matter at that level; and this is the next step in the process that requires the two governing bodies to meet.
Chairperson Voltz stated she will allow public comments at the end; and requested everyone at the table introduce themselves. Council Member Bobbi Moccia advised she has been with the Town of Malabar for six years; and introduced the new Town Manager, Bonilyn Wilbanks-Free. Council Member Moccia stated Ms. Wilbanks-Free goes by Boni; she came from South Florida where she was a manager for ten years; she has been involved in law enforcement for 25 years; and she is a good person to be on the Town of Malabar’s team at this time. Chairperson Voltz welcomed Ms. Wilbanks-Free; and noted this is a good way to get her feet wet. Council Member Pat Dezman stated she represents District 5 of Malabar; Council Member Brian Vail stated he represents District 2 of Malabar; Council Member Chuck McClelland stated he represents District 3 of Malabar; and Council Member Nancy Borton stated she represents District 1 of Malabar. Mayor Thomas Eschenberg stated he is the Mayor of the Town of Malabar; Bonilyn Wilbanks-Free stated she is the Town Manager; and Karl Bohne stated he is the Town’s Attorney.
County Attorney Scott Knox advised the County is seeking the Town of Malabar’s participation in the County’s MSTU which pays for law enforcement throughout the unincorporated area and areas where cities have Interlocal Agreements with the County to provide law enforcement services; the Town of Malabar is the only jurisdiction in the County that does not participate in one form or fashion in the MSTU, with the exception of cities that have their own police departments; he thinks there are three other cities that do not have their own police
departments but they have Interlocal Agreements with the County; and the Town of Malabar has neither. Mr. Knox noted the Town is getting law enforcement services for nothing; it is the County’s position that the Town should participate; the County is trying to negotiate an arrangement that would allow that to happen; but if it cannot do that, the County will be forced to take the issue to court.
Karl Bohne, Attorney for the Town of Malabar, noted the main issue is whether or not the Town of Malabar must pay for the future MSTU services; there has been some discussion regarding past services and the Town’s position is well-entrenched in the law, that the past services are the past and there is no obligation on the Town to pay for that; and the issue is whether or not the Town, under Chapter 125 of the Florida Statutes, wants to opt into the MSTU for law enforcement services that the County provides.
Mr. Knox stated there is a disagreement about whether or not the Town will be responsible for paying back what it owes to the County for the past; but that is something that they can discuss tonight; the Board can ignore the past and go forward with an agreement or it can try to recoup the money; and that is something the Board will have to consider.
Council Member Moccia noted the Town does not pay MSTU, but it has always paid a General Fund tax; the Town did not ask for MSTU officers; the Town’s Council has requested her to bring forth its expectations; and the Town would come aboard if it is offered a 24-hour protection guarantee. She stated to not offer anything substantial and to say another officer can be added, with no guarantee that he or she will be there when the Town needs the officer is not what the Town is looking for; the properties that were purchased through the Environmentally Endangered Lands Program were removed from the tax rolls; the Town wants to make sure that it is getting what it pays for; and it has requested a 24-hour service of protection for the Town with three officers.
Chairperson Voltz noted that is the Sheriff’s issue; with Council Member Moccia inquiring if the Sheriff will be attending the meeting. County Manager Peggy Busacca advised a representative told her office the Sheriff would be attending; and perhaps he is also caught in traffic. Chairperson Voltz inquired if there is a way to contact him; and noted as a Commission, there is no way to promise that the Sheriff is going to do something.
Council Member Moccia stated that is what the Town has asked her to come forward with; and the Town also requested an option of having it as a binding Referendum every two years as a checkup for the Town to make sure it still wants to continue the MSTU. Chairperson Voltz noted that would be like giving the Town a police department and possibly taking it back every two years. Council Member Moccia replied if the services for the Town of Malabar do not improve, she wants the people to have that option; and there have been times when the Town has had to wait. Chairperson Voltz stated that is because the Town does not have municipal services. Council Member Moccia replied that is correct; but if the Town is going to have municipal service, it will expect it to be better service. Chairperson Voltz advised that is the Sheriff’s responsibility; and she is not sure how much money he is going to be collecting from the Town and what services that will provide. Council Member Moccia noted the Town’s request for an officer 24 hours a day is something everyone else already gets; the larger Towns receive more than one officer; however, if Malabar is going to be paying the MSTU like everyone else, it deserves the same 24-hour service. Chairperson Voltz inquired if the Sheriff provides 24-hour service for everyone or is it just in the pool like everybody else and they go where the services are needed. Ms. Busacca responded she believes there is a deputy in the South Precinct 24 hours a day; what she understood is the Town of Malabar’s interest is a Sheriff’s Deputy dedicated only to the Town rather than within the MSTU area; and inquired if that is correct. Council Member Moccia inquired if that is what the Town’s Attorney got from the last Town Council meeting; with Mr. Bohne replying it is what was discussed, but in reality he does not know if the Sheriff can commit one deputy solely for the Town; and the deputy would probably have to be on call.
Mayor Eschenberg advised he was at the Council Meeting as well; the amount of money that would be collected for Malabar under the current rate of MSTU would be around $225,000; the millage rate is approximately .87; the Town feels that the $225,000 would cover three deputies; and the intent was that there would be three deputies dedicated to Malabar so they could provide 24-hour coverage. He stated obviously, if the Sheriff needed one of his deputies somewhere else the Sheriff could call his deputy away, but it is expected that when the deputy is done helping, the deputy would be back in Malabar.
Chairperson Voltz noted since the Sheriff’s is not present, it is difficult to answer questions on how he runs his Department; and inquired if Mr. Knox could answer any of the questions. Mr. Knox responded he would be willing to bet that the Sheriff has a response time level of service that he tries to make for every response; he does not want to speak for the Sheriff because he does not know if it is fact, but that is his guess; and generally speaking, it is response times that Fire and EMS look at, so he would guess the Sheriff does the same. He noted if the response time is consistent with what the Town is asking for, he believes something could be worked out in that regard; and if it is not consistent, he thinks they need to follow the same response time the Sheriff has for everybody else in the County. Chairperson Voltz advised the response time is more important than a 24-hour deputy within the Town’s limits; and the most important thing is that the citizens of the Town are taken care of.
Council Member Borton stated she did not make the last Town Meeting but at prior meetings Commander Drinkwater was there and mentioned having a liaison, somebody that would be around so he could come to the Town’s meetings; and inquired if that is still on the table. Chairperson Voltz advised she believes she did hear him mention that. Council Member Borton advised it would be a good idea; and the people that she has spoken with want the safety and the response time to be proper.
Chairperson Voltz advised in the County’s Comprehensive Plan, it states that the Sheriff has to respond in x amount of minutes depending on the type of crime it is. County Manager Peggy Busacca noted she believes it is an advisory because it is not required by State Statute. Chairperson Voltz stated they should look at the response times rather than the amount of deputies. Council Member Moccia agreed that is a very big part of it; noted the Town did a lot of research on starting its own police department; the consensus was that if the Town was going to give such a large amount of money, it certainly needs to have the appropriate amount of people looking over it; and the constituents’ tax dollars should provide the best service possible for the Town.
Chairperson Voltz noted the people of Malabar want service; the Sheriff wants to provide the service but he wants to provide it at a cost; right now, the Town is paying for General Fund deputies; but if there is a 911 call and someone is being hurt, they will send the MSTU Deputies. She stated the bottom line is the Town has to pay for it; the Commissioners cannot guarantee there is going to be someone there 24 hours a day; that is something they will need to work out with the Sheriff; but the response time is what is most important.
Council Member Vail advised another important thing is that Malabar have its own contact person who would double as the liaison; the Town would have 24-hour access to this person; the person should be familiar with the Town; and he understands that is hard to commit to without the Sheriff being present.
Council Member Dezman inquired if the Sheriff’s budget came before the Board for approval; with Chairperson Voltz replying the Board has no control over how the Sheriff spends it. Council Member Dezman advised she understands that, but at a Council Meeting Sheriff Parker stated if the Town paid the MSTU, he could ask for this but there was no guarantee the Board would approve it. Chairperson Voltz stated the way it works is the Sheriff comes to the Board and says he needs x amount of dollars; if granted, he spends it however he wants; the Board has no control on how he spends the money; and inquired if she is correct. Mr. Knox responded there is a mechanism in Florida law that allows local governments and Officers like the Sheriff to enter into interlocal agreements; and suggested if the Board’s majority wants to go in this direction, he, Mr. Bohne, and whoever wants to sit in from the Town’s Council and the Board, can sit down with the Sheriff and try to work out the details of what the Sheriff can do for that amount of money. He noted then the Board and Town would put it in an agreement and go forward.
Mr. Bohne inquired if the response time in the Comprehensive Plan is for the General Fund or the MSTU deputies; with County Manager Peggy Busacca replying it is not delineated; and it simply says Sheriff. Mr. Bohne inquired if the Council decided to adopt an ordinance going into the MSTU, what would be the call level of service; and noted right now, a General Fund deputy would be obligated to enforce certain speeding laws on certain roads and certain State laws. He inquired what laws would an MSTU deputy enforce in the Town of Malabar. Mr. Knox replied they could work that out as part of the deal; and the answer to his question is it would probably be whatever State laws apply to the Town of Malabar.
Mayor Eschenberg advised there is a lot of confusion about what the deadline is to pass this MSTU to have it on next year’s tax rolls; the Council was originally given July 1; the Sheriff said he needs it by April 15 to put it in his budget; and he has heard the Council would have needed to pass it before the first of January of this year in order to get it on next year’s tax roll. He inquired is there really a July first deadline or has the deadline passed for this year and they are looking at January first. Mr. Knox responded it is his recollection of the Statute that any new MSTU has to be established by July first in order to implement it for the following fiscal year beginning in October. Chairperson Voltz stated if she is not mistaken, the Sheriff said that even if they pass an MSTU now, it will not get on the tax rolls until 2009. Ms. Busacca replied that is correct because the roll has to be certified before January of that year; and if they were to do anything between now and the end of 2007, they would be able to put that into the 2008-2009 budget. Mayor Eschenberg noted that establishes they are not up against a tight deadline; and they have until the end of the year to resolve this issue. Chairperson Voltz noted it could have gotten resolved before this. Ms. Busacca advised because the Town has the right to contractually enter into an agreement with the Sheriff, the deadline could be when the Board simply feels like it has to move forward rather than to wait. Chairperson Voltz stated in other words, if the Board says the Town needs to make a decision by July first, then it is going to be July first; and the Board could set the deadline. Mayor Eschenberg noted the soonest that anything can happen now is 2008-2009; and Council needs to pass the ordinance before the end of this year.
Chairperson Voltz inquired if the Council has to go out for referendum and have a binding vote before deciding. Mayor Eschenberg stated it his understanding that all the Council has to do is pass an ordinance; and it takes a month’s time to pass an ordinance.
Mayor Eschenberg inquired if the Council should decide to not get into the MSTU and the County moves forward with a lawsuit, what would be the basis for the lawsuit; and commented on a case decided in Iowa. He stated there is always a risk that the County could lose the lawsuit and the Courts could say Malabar does not have to pay an MSTU; then there is the risk that Grant Valkaria and Palm Shores may pull out; and it looks like the chips could be stacked against the County in some ways. Mr. Knox advised he does not think so; the chips stacked against the Town come to $2 million; and recommended the Town consider that. He stated he knows Mr. Bohne does not believe the County has any quantum meruit with recovery available to it, but there is something called implied in law contracts which he believes the Town can be held to because there are a lot of Statutes saying the County has the authority to do this and there is a lot of indication in his research that the Town would be able to be held to that responsibility.
Council Member Borton noted she can only speak for herself, but she does not want this to go to court; the Board is spending the constituents’ money on the County level and the Town is spending it on the local level; she would like to see them come to some sort of agreement; and when the Sheriff was at the Town’s Council Meeting, he was very willing to work with them to give them zones. Chairperson Voltz advised she is hoping they can decide something tonight because it has been going on too long. Mayor Eschenberg stated he does not know how something can be decided on tonight without the Sheriff present.
Council Member McClelland inquired if the Sheriff can enforce Malabar Ordinances as well as State Statutes; with Mr. Knox replying yes. Ms. Busacca advised currently they enforce the County’s Noise Ordinance because a lot of the noise ordinances happen late in the evenings and the Code Enforcement Officers are not readily available.
Chairperson Voltz noted someone mentioned the Council cannot make a decision tonight without the Sheriff present; and inquired if the Council could give direction to its attorney and the Board give direction to its attorney to meet with the Sheriff and come back with something that may be amenable to everyone. Mr. Bohne stated he would like to have at least Ms. Moccia or another Council Member at that meeting. Chairperson Voltz stated she and Council Member Moccia will both be in attendance.
Council Member Dezman advised the County Commissioners seem to be of the opinion that the entire Town is for paying the MSTU; the people in her District have been very clear; and there were approximately 200 people at that meeting.
Commissioner Nelson stated he is having trouble hearing the conversation; and since he is only five minutes away, requested the Board take a break until he can be there to join it. Chairperson Voltz stated no problem. Council Member Bobbi Moccia inquired if there is any way they could try to call the Sheriff; with County Manager Peggy Busacca replying yes.
The meeting recessed at 7:37 p.m. and reconvened at 7:56 p.m.
*Commissioner Nelson’s presence was noted.
Chairperson Voltz noted during the break, she called Commander Drinkwater; he said one- fourth of the South County zone is in the Town of Malabar; he said the Sheriff will continue the services that the Town has now and they will take whatever money that they get from the MSTU, whether it provides two or three deputies, and add those to the South Precinct; and noted it would not be specifically to the Town of Malabar but to the South Precinct. Council Member Dezman inquired if Chairperson Voltz is saying whatever the amount of money paid by the Town would provide is what would be added to the South Precinct; with Chairperson Voltz replying yes. Chairperson Voltz advised Commander Drinkwater also said he would provide a liaison just like he does for Barefoot Bay or Grant-Valkaria, and that 100% of all deputies in the area are MSTU deputies right now.
Mayor Eschenberg advised during the break he had a conversation with the Town Attorney Karl Bohne; he would like to advise the Council of another option; apparently it is possible for the Town of Malabar to have its own MSTU totally independent from the County’s MSTU; and this would enable the Council to negotiate with the Sheriff exactly what it wants with the Malabar MSTU. Mr. Bohne advised it would be an MSTU created through the County because Towns cannot create their own MSTU’s. Chairperson Voltz stated it would be a contract with the Sheriff’s Department; with Mayor Eschenberg replying no, it would not be a contract. Mr. Bohne advised it would, within the geographical bounds of Malabar, create a Malabar MSTU for Sheriff Services. Mr. Knox noted what it would be is an agreement with the Sheriff to provide the things he has stated; and they would create the MSTU, which would generate the money to pay for the service. Mr. Bohne advised he thinks this will allow the Town to better define and maybe localize the deputies to Malabar. Chairperson Voltz noted she does not think the Sheriff is open to that; Commander Drinkwater told her this is the only thing that will work for the Town; and if the Sheriff provides two or three extra deputies in the South Precinct, the Town still has the opportunity to have all the other deputies out there too, where if the Town had its own, chances are it would not get the expanded services.
Commissioner Nelson expressed his apologies for his late arrival due to a traffic accident; noted Cape Canaveral has Sheriff services through an agreement; Cape Canaveral taxes within the City and basically uses its tax dollars to pay for the service; and it is a mechanism that allows it to establish whatever level of service it wants based on whatever the millage is that it creates for that MSTU. He noted that would seem to be a very workable thing; it is kind of a split with what the Sheriff said would not work because he is working with existing deputies and trying to supplement versus a direct contract for a service; and he does not see why the Sheriff would have any objection to doing that because it is already working in other parts of the County.
Chairperson Voltz noted when she talked to Commander Drinkwater, he said contracting would be much more expensive for the Town. Mayor Eschenberg advised it is not a contract. Chairperson Voltz advised it is the same thing; and Cape Canaveral contracts with the Sheriff. Commissioner Nelson stated that is correct; it gives a level of service that equates to a more municipal service; and the Cities do pay more but it is getting more. He noted he believes what the Sheriff is saying is to make it as reasonable as it can be; the Town has an existing level of service that is being provided which would be supplemented with the additional; he heard concern over 24-hour deputies; and that level of service question is what has to be answered because it can range from what the Sheriff has proposed all the way up to whatever the Town would like for it to be and is willing to collect through the MSTU.
Mayor Eschenberg stated the Town could ask the Board to establish an MSTU within the town limits of Malabar at some tax rate; then the Town would go to the Sheriff and ask what he could provide for that amount of money; if it was not sufficient, then maybe the tax rate could be different for Malabar; and maybe it could even be less depending on what level of service the Council decides it wants for Malabar.
Council Member Dezman noted at the Town Meeting there were 200 people there; they had 900 people vote in favor of paying the MSTU; but there are still 1,000 other people in the Town that have not weighed in; and she understands that was their choice. She advised the people across the board, in principle are not against paying this; but she does believe for some of the people this is a pocketbook issue; it is more taxes; and some people are retired on a fixed income. She advised this meeting should have happened six months ago; it would have stopped some frustration on both sides; the Town is not ignoring its responsibilities; but they have an obligation to do what is right for the entire Town. She noted the best thing that has happened out of the controversy, is that they are now sitting down talking to each other instead of making assumptions; but at the same time she is disappointed that all of the County Commissioners and the Sheriff are not present.
Chairperson Voltz advised it is difficult raising taxes. Council Member Dezman noted 50% of the Town is going to be upset no matter what the Council decides. Chairperson Voltz commented on the Town being upset if they do not have services; with Council Member Dezman replying she understands that as well.
Commissioner Nelson advised he represents one of the largest unincorporated areas; his 40,000 constituents are going to be upset if Malabar gets better services for less money; if Malabar goes into the Sheriff’s MSTU like his area, the service level should be the same; and his constituents will be watching. He noted he has constituents that cannot afford to pay; it is a dilemma they all face; but they have to have the service.
Council Member Moccia stated she needs to make a clarification; the new Town Manager Bonilyn Wilbanks-Free needs to be involved, as well as Mr. Bohne and herself if Council sees fit, at the get-together to do something about this and get it settled as a group; she did not mean to leave Ms. Wilbanks-Free out; and she wants to make sure she is there. Chairperson Voltz noted her suggestion is to have them meet to try and work this out; the Town’s Council could give direction to the Attorney so he knows what everybody wants; and then they could discuss what level of service the Town wants, how it can be provided, how much is the MSTU, and how many deputies will it provide. She stated this way, the Town can have all that information before it makes its final decision on what it wants to do; and the Town has to be responsible to its citizens and explain what they are getting. Council Member Moccia advised this is a step in the right direction; it is unfortunate that the Sheriff is not present to help answer some of their questions so they can be better prepared; but this is going in the right direction. Chairperson Voltz advised she will have her secretary call the Town Manager to set it up; with Council Member Moccia noting Wednesdays are very good. Chairperson Voltz noted they could meet at her office; and maybe then they could set up another meeting with the Town Council and the Board. Council Member Dezman advised that is the best way to go; they would all be in the same room rather than doing it as two separate governing entities; and that way each would give it a stamp of approval. Chairperson Voltz noted it was very difficult getting everyone present tonight.
Mayor Eschenberg advised Town Council may want to have the meeting after its next Council Meeting so it can come to agreement on what Council Member Moccia goes with. Council Member Dezman inquired if he is talking about the meeting where the four or five of them are sitting down in Chairperson Voltz’ Office; with Mayor Eschenberg replying yes, having that meeting after the Council’s next meeting on May 7, 2007. Council Member Dezman inquired if Commissioner Voltz’ meeting could happen between May 8 – 20, 2007; and noted the reason for that is because there is another Council Meeting on May 21, 2007.
Mr. Knox noted the County has to have this done before July 1, 2007 in order to have it implemented for the next budget. Chairperson Voltz advised she will get all the dates from the Town Manager and try to get it worked out to meet within three to four weeks so everything can be done. She noted the Board takes a June break; and the last meeting before the break is a May 24, 2007 Zoning meeting.
Town Manager Wilbanks-Free inquired if before the meeting is held, Chairperson Voltz would get her the cost of what one MSTU officer costs the Town; with Chairperson Voltz replying yes, she will get all that information. Ms. Wilbanks-Free advised that would give the Council something to work with. Chairperson Voltz noted Commander Drinkwater said he thought with the $225,000, it would be two or three deputies, outfitting them with cars and everything else; but she will get more specific numbers for her.
Council Member Moccia inquired if Chairperson Voltz would make sure Sheriff Parker is present at the meeting between them; with Chairperson Voltz responding yes. Council Member Dezman requested Commander Drinkwater be present as well because Chairperson Voltz has spoken with him regarding all of this; with Chairperson Voltz replying yes. Council Member Dezman inquired if it was Mike Lewis who attended the Town Meeting; with Chairperson Voltz responding yes. Council Member Dezman noted they all had little pieces of this and if they are all in the same room, everyone would know what they are agreeing to. Chairperson Voltz advised they probably all have the same information; but she understands where Council Member Dezman is coming from. Chairperson Voltz inquired if Mr. Bohne is okay with the Wednesday meeting; with Mr. Bohne responding he will make himself available; he has Grant- Valkaria meetings on Wednesdays; but he will be there for Malabar. Chairperson Voltz inquired if there is a meeting in her office in the meantime, will Mr. Bohne be there; with Mr. Bohne replying yes, he will be there. Chairperson Voltz inquired if the meeting in her office has to be on a Wednesday; with Council Member Moccia responding Wednesdays are the best for her; but in three weeks she will be available anytime. Chairperson Voltz noted hopefully they will have everything worked out before three weeks; she will work something out; the first meeting in her office will include herself, Mr. Knox, Ms. Busacca, Council Member Moccia, Town Manager Wilbanks-Free, and the Sheriff’s Department; and then before May 22, 2007, the two governing bodies will meet.
Ms. Busacca advised one of the problems her office had in setting this meeting up was they had to wait for a Town meeting to confirm a date; and inquired if there is any way her office could work directly with the Town Manager in order to set a date for the joint meeting that would work for the Council. Council Member Dezman suggested setting it now because all five Council members and the Town’s Manager and Attorney are present to confirm; and noted she is hesitant to have the Town Manager try to coordinate the Council members’ schedules when she has been on the job for 72 hours.
Mayor Eschenberg noted there are only two Wednesdays available within that timeframe; they are the ninth and the sixteenth; and he is out of town the ninth through the thirteenth. Chairperson Voltz advised they will all work towards the sixteenth and try to clear their schedules.
Council Member Dezman suggested each Council Member be on the hook to let Town Manager Wilbanks-Free know if they are free on the sixteenth.
Chairperson Voltz noted she could not speak for the Commissioners who are absent; but inquired if Commissioner Bolin is available; with Commissioner Bolin replying she will make it free. Chairperson Voltz stated it will be set for the sixteenth; she hopes the Council members make the date available; and they all want to get this behind them and continue working together.
Chairperson Voltz inquired if there are any public comments. No comments were given.
Upon motion and vote, the meeting was adjourned at 8:24 p.m.
HELEN VOLTZ, CHAIRPERSON
BOARD OF COUNTY COMMISSIONERS
ATTEST: BREVARD COUNTY, FLORIDA
SCOTT ELLIS, CLERK
( S E A L )