The Board of County Commissioners of Brevard County, Florida, met in regular session on November 16, 1999, at 9:08 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Randy O'Brien, Nancy Higgs, Sue Carlson, and Helen Voltz, County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Brevard County Jail Chaplain Luis Lugo.

Commissioner Nancy Higgs led the assembly in the Pledge of Allegiance.

REMOVE ITEM FROM AGENDA

County Manager Tom Jenkins advised Item III.A.4, Contract for Sale and Purchase with Charles Heller for Garden Street/Carpenter Road Intersection Improvements, should be delayed until next week.

The Board accepted the recommendation of the County Manager and withdrew Item III.A.4 from the Agenda.

OVERVIEW, RE: TRANSITION OF TAKEOVER OF SOUTH BREVARD SERVICE AREA

Public Safety Director Jack Parker stated the Harbor City transition has been going well which is a credit to the hard work of the Fire Rescue Command staff and the Harbor City Volunteer Ambulance Squad personnel; there have been no major incidents; everything has gone according to plan; and they are pleased with the Harbor City Volunteer Ambulance Squad employees who have elected to take employment with the County. He stated the other portions yet to be completed are underway and being coordinated; the Indian River Fire Academy will be hosting a specialized three-component academy for the Harbor City Volunteer Ambulance Squad personnel who have not yet achieved fire certification; and following that, those who have not attained their paramedic certification will be given the opportunity to attend an in-house paramedic course. He stated the decision made by the Board on April 13, 1999 was an excellent one, and will improve public safety for years to come.

Chief Bill Farmer stated staff met with the elected officials, City Managers, and Fire Chiefs; during that meeting some of the south Fire Chiefs expressed concerns about the transition; and it was decided to hold monthly meetings between Command staff and the Fire Chiefs. He stated two meetings have been held; and the Fire Chiefs have stated how well the transition has gone, and decided to conclude the meetings. He stated part of that is due to patient improvement; and outlined the mandated training. He commented on improved response times; and advised the Board will receive a written report outlining the details of the transition.

Commissioner Voltz expressed concern about the fairness of comparing response time statistics as there are more ambulances there, and the area covered by each ambulance is less. Chief Farmer stated there are two additional units in place, and they have also relocated some units to address the response times. Commissioner Higgs stated it still means someone is getting assistance that much faster, so it is an important statistic. Commissioner Voltz stated the only fair statistics would be if the County had ten versus Harbor City Volunteer Ambulance Squad's ten ambulances, because the response time should be better if there are more units.

REPORT, RE: NOBEL PRIZE WINNER

Commissioner O'Brien stated Dr. Gosselin, who performed surgery on his leg, used to be at the Space Coast Orthopedic Center on Merritt Island, but moved to California two months ago; and he is part of the group of doctors who just received the Nobel Peace Prize.

ITEM REMOVED FROM AGENDA FOR DISCUSSION

Commissioner Carlson requested Item III.A.2 be pulled from the Consent Agenda for discussion.

DISCUSSION, RE: LOCAL ACCESS MANAGEMENT PLAN FOR WICKHAM ROAD

Commissioner Carlson stated in 1994 a Local Access Management Plan was created for Wickham Road; and inquired about the status of that plan. She stated a memorandum from Mr. Jenkins talks about development issues status report, and the benefits of controlled and limited access roads. She stated in the previous meeting, the Board discussed Albertson's and issues of access along Wickham Road; a lot of the median is being dug up to beautify Wickham Road, as part of the parkway definition; and she is concerned about providing access at any given point without a controlled plan, because what may happen is Wickham Road being all asphalt with no greenery in the center. She requested staff explore how to create a local access management plan for the County, and specifically for Wickham Road.

PERMISSION TO TRAVEL, RE: NACO MEETINGS

Commissioner Voltz stated the National Association of Counties appointed her to the Steering Committee for Justice and Public Safety; the meeting will be January 12 through 15, 2000 in Savannah, Georgia; and requested permission to travel.

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to grant permission for Commissioner Voltz to travel to Savannah, Georgia on January 12 through 15, 2000. Motion carried and ordered unanimously.

Commissioner Carlson inquired if there were dates for all the meetings; with Commissioner Voltz responding no.

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to grant permission for any Commissioner to travel to NACO meetings. Motion carried and ordered unanimously.

DISCUSSION, RE: ALLIANCE COMMITTEE ON COMMUNITY CARE FOR CHILDREN

Commissioner Voltz recommended further exploring the community alliance concept Judge Kearny spoke about to oversee community-based care for Children's Protective Services; and stated this is the perfect opportunity to explore the creation of such an alliance as community-based care and school readiness are the forerunners of what is to come. She stated the Children's Services Council has received verbal notification of a shared services grant to fund building of a network that will be similar to the community alliance; and requested staff provide a concept paper on how the processes can be integrated into one working model.

RESOLUTION, RE: RECOGNIZING THE ST. JOSEPH'S EDUCATIONAL COMMUNITY

Commissioner O'Brien read aloud a resolution recognizing the St. Joseph's Educational Community for its kindness and efforts in raising funds for the victims of Hurricane Floyd in North Carolina.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to adopt a Resolution recognizing the St. Joseph's Educational Community. Motion carried and ordered unanimously.

RESOLUTION, RE: DECLARING "FREE DAY" FOR FLORIDA'S PARK SYSTEM

Commissioner Higgs stated November 21, 1999 is "free day" in the State parks; and Sebastian Inlet State Park, which is in District 3 will be open free to the public. She read aloud a resolution declaring November 21, 1999 as "Free Day" in Florida's State Park System.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to adopt Resolution declaring November 21, 1999 as "Free Day" in the Florida State Park System. Motion carried and ordered unanimously.

RESOLUTION, RE: DECLARING NATIONAL EPILEPSY AWARENESS MONTH

Commissioner Carlson read aloud a resolution declaring the month of November, 1999 as National Epilepsy Awareness Month.

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to adopt Resolution declaring the month of November, 1999 as National Epilepsy Awareness Month. Motion carried and ordered unanimously.

FINAL PLAT APPROVAL, RE: CRANE CREEK SUBDIVISION, PHASE V

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to grant final plat approval for Crane Creek Subdivision, Phase V, subject to minor changes if necessary, receipt of all documents required for recording, and Board approval of the project not relieving the developer from obtaining all necessary permits. Motion carried and ordered unanimously.

AGREEMENTS WITH W. H. BENSON & COMPANY; POMEROY APPRAISAL ASSOCIATES OF FLORIDA; ROBERT W. HOUHA, MAI; CLAYTON ROPER & MARSHALL, INC.; AND TUTTLE- ARMFIELD-WAGNER APPRAISAL SERVICES; AND AUTHORIZE COUNTY MANAGER TO EXECUTE RENEWAL OPTIONS, RE: CONTINUING APPRAISAL SERVICES

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to execute Standard Appraisal Agreements with W. H. Benson & Company; Pomeroy Appraisal Associates of Florida; Robert W. Houha, MAI; Clayton, Roper & Marshall, Inc.; and Tuttle-Armfield-Wagner Appraisal Services; and authorize the County Manger or designee to execute renewal options as outlined in the Agreements. Motion carried and ordered unanimously.

CHANGE ORDER NO. 1 WITH A. D. MORGAN CORPORATION, RE: NORTH BREVARD SERVICE COMPLEX (PARKWAY) CHILLER REPLACEMENT

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve Change Order No. 1 with A. D. Morgan Corporation for replacement of the chillers at the North Brevard Service Complex (Parkway), increasing contract time by 7 days. Motion carried and ordered unanimously.

CHANGE ORDER NO. 1 WITH ADVANCED HURRICANE PROTECTION, INC., RE: SCHOOL BOARD HURRICANE SHUTTERS

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve Change Order No. 1 with Advanced Hurricane Protection, Inc. for installation of hurricane shutters on 18 Brevard County schools, increasing the contract amount by $23,847 and time by 21 days. Motion carried and ordered unanimously.

RESOLUTION, RE: AUTHORIZING BREVARD COUNTY HOUSING FINANCE AUTHORITY TO APPLY FOR ALLOCATION WITH FLORIDA DIVISION OF BOND FINANCE, AND TO ISSUE SINGLE FAMILY MORTGAGE REVENUE BONDS, SERIES 2000

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to adopt Resolution authorizing Brevard County Housing Finance Authority to apply for allocation with Florida Division of Bond Finance and allow for issuance of Single Family Mortgage Revenue bonds during the first 60-90 days of the year 2000. Motion carried and ordered unanimously.

APPROVAL OF BUDGET CHANGE REQUEST, RE: AMENDING BUDGET FOR KLAS GRANT

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve Budget Change Request amending budget for the Key to the Library Access Statewide (KLAS) Grant in the amount of $49,444. Motion carried and ordered unanimously.

RESOLUTION, GRANT APPLICATION FOR FEDERAL ASSISTANCE USE OF TOLL REVENUE CREDITS, EXECUTION OF FOLLOW-UP CONTRACTS, RE: FY 2000 SCAT CAPITAL AND OPERATING ASSISTANCE GRANTS

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to adopt Resolution and execute Grant Application, Certifications and Assurances, and use of Florida Department of Transportation (FDOT) Toll Revenue Credit for the FY 2000 Public Transportation Capital and Operating Assistance Grant from the Federal Transit Administration (FTA) in the amount of $3,843,096 for Space Coast Area Transit; and authorize the Chairman to sign follow-up grant agreement and other documents contingent upon approval by the County Attorney and Risk Management. Motion carried and ordered unanimously.

AGREEMENT WITH WHEELABRATOR RIDGE ENERGY, INC., RE: TRANSPORTATION AND DISPOSAL OF WOOD WASTE

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to execute Agreement with Wheelabrator Ridge Energy, Inc. for an additional five-year term for the sale, transportation and disposal of wood waste from the County's Solid Waste Disposal facilities. Motion carried and ordered unanimously.

AGREEMENT WITH DEPARTMENT OF COMMUNITY AFFAIRS, DIVISION OF EMERGENCY MANAGEMENT, AND BUDGET CHANGE REQUEST, RE: FY 99-00 EMERGENCY MANAGEMENT PREPAREDNESS AND ASSISTANCE BASE GRANT

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to execute Agreement with Department of Community Affairs, Division of Emergency Management, for FY 1999-2000 Emergency Management Preparedness and Assistance Base Grant; and approve Budget Change Request in the amount of $6,532. Motion carried and ordered unanimously.

APPOINTMENT, RE: CITIZENS ADVISORY BOARDS

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to appoint Pat Freeman to the Library Board, replacing Robert Smith, with term of appointment to expire on December 31, 2000. Motion carried and ordered unanimously.

APPROVAL, RE: BILLS AND BUDGET CHANGES

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve the bills and budget changes as submitted. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE GRANTING ECONOMIC DEVELOPMENT AD VALOREM EXEMPTION TO AMERICAN PRINTWORKS, L. L. C.

Chairman Scarborough called for the public hearing to consider an ordinance granting economic development ad valorem exemption to American Printworks, L.L.C.

Commissioner Carlson inquired why the fiscal impact has no numbers filled in; with Commissioner Voltz responding they are filled in on the updated paperwork. Economic Development and Legislative Affairs Director Greg Lugar stated the updated paperwork was sent out Friday; apologized for not getting it out earlier; and advised they only got the information from the Property Appraiser's office that day. He noted this request was turned around in one week to benefit the applicant. Commissioner Voltz stated the exemption is $3,257.26 per year for four years.

There being no other comments or objections heard, motion was made by Commissioner Voltz, seconded by Commissioner O'Brien, to adopt an Ordinance granting economic development ad valorem exemption to the American Printworks, L.L.C., 9135 Ellis Road, Melbourne, Florida 32904; specifying the items exempted; providing the expiration date of the exemption; finding that the business meets the requirements of F.S. 196.012; providing for proof of eligibility for exemption; providing for an annual report by American Printworks L.L.C.; providing an effective date. Motion carried and ordered. Commissioner Higgs voted nay.

Commissioner Higgs stated she has no problem with this particular exemption, but has concerns about the abatement policy.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, ARTICLE VI, SECTIONS 62- 1953(A) AND (F), GOVERNING CO-LOCATION OF TOWERS AND ANTENNAS ON EXISTING STRUCTURES AND BUILDINGS

Chairman Scarborough called for the public hearing to consider an ordinance amending Chapter 62, Article VI, Sections 62-1953(A) and (F), governing co-location of towers and antennas on existing structures and buildings.

Commissioner Voltz inquired if this has anything to do with the County hiring Hanson Engineering; with Planner Robin Sobrino responding no, that is a separate item. Commissioner Voltz stated 6(e) says that costs exceeding new tower development are presumed to be unreasonable; and inquired if a better word could be used instead of "unreasonable." Ms. Sobrino responded staff will try to come up with a better word. Chairman Scarborough advised the new word will have to be part of the adoption process. Commissioner Voltz stated it can be moved along to the second public hearing. She read aloud (a) and (b) on page 3 of 4; stated the Board has taken away the applicant's engineering requirements if it puts in Hanson Engineering requirements; and inquired if it is necessary. Chairman Scarborough suggested using "engineering requirements." Ms. Sobrino stated applicants will be allowed to provide input as to their requirements; and Hanson Engineering will evaluate it to determine if there is merit in a certain circumstance. Commissioner Voltz stated verbiage to that effect should be added. Ms. Sobrino stated they can add, "as agreed upon by the County's consultant."

Commissioner Higgs stated there needs to be clarification; this is not a change in the way the County handles other things; there will be a person, staff, or a consultant who will evaluate the information presented; and the County is not substituting its engineering for the applicant's. Commissioner Voltz stated normally that may be true; however, since the County is charging the applicant approximately $2,500 for the services, that is going to be a specific requirement. Commissioner Higgs stated it is a fee that is required similar to a DRI that has an additional fee to cover the cost of evaluation. Chairman Scarborough inquired if Commissioner Higgs has a problem with the added language; with Commissioner Higgs responding no.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to continue the public hearing to consider an ordinance amending Chapter 62, Article VI, Sections 62-1953(a) and (f), governing co-location of towers and antennas on existing structures and buildings to permit co-location of antennas on existing utility poles and light poles within public rights-of-way without a conditional use permit, reduce minimum height requirement for co-location on existing buildings/watertowers, require applicants for new towers to present evidence to demonstrate that co-location on existing towers is not feasible, and require new towers to permit co-location by other providers. Motion carried and ordered unanimously.

DISCUSSION, RE: EMERGENCY ASSISTANCE FOR PAYMENT OF COUNTY PROPERTY TAXES

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to approve the Emergency Assistance Program for indigent seniors.

Commissioner Voltz read aloud #5, "emergency assistance amount to be secured through a promissory note by the property owner to be paid at the time of sale of the property or at the convenience of the property owner prior to the sale"; and stated someone might not pay taxes for the rest of his or her life, and the County will get stuck with the property when that person dies or whoever gets the property will have to pay many years back taxes. She stated this may be something the Board wants to do with a lien; and if it is not paid after a certain amount of years, it is written off.

Commissioner Higgs expressed concern about the way the assets are being evaluated. She stated she faxed information to the Board showing the way Health Care Responsibility Act (HCRA) does the asset evaluation; in Mr. Jenkins' proposal the assets are $3,000 but the HCRA does an asset evaluation which has assets at $5,000 with guidelines for determining the assets; and that is a reasonable way to go. She stated if the Board includes the program Mr. Jenkins outlined in the Agenda Report plus the asset evaluation, it would strengthen the package.

Commissioner Voltz stated another question concerns the poverty income guidelines; and inquired how someone over 65 could have 5 to 8 dependents. Mr. Jenkins stated staff is anticipating two people maximum unless they have a disabled child; and the chart is used on another program, but was attached for a reference. Commissioner O'Brien noted grandparents are raising a certain percentage of grandchildren, so that could be applicable.

Chairman Scarborough stated he has a problem with forgiving loans; and explained how a person whose home is paid for could get a reverse mortgage. He stated he would hate to see windfall profits go to heirs who are well off and may have failed in their responsibility to an elderly parent; and he is not in favor of total forgiveness. Commissioner Voltz suggested doing it the same as the CDBG with only one year forgiven at the end of five years, and the person always being liable for five years.

Discussion ensued on paying the loan back, letting no more than five years accrue, and values of single-family homes.

County Attorney Scott Knox stated Commissioner Voltz made the point about a lien which is a valid point from the standpoint of making people aware is an obligation that runs with the property; and if the lien is not recorded, no one will ever know about it, and it will be a personal obligation of the person who signed the promissory note. He stated if the owner is deceased, the person who acquires title to the property is not going to have an obligation if it is not a lien.

Chairman Scarborough stated in order to get the exemption, an individual would have to enter into a mortgage-type relationship. Mr. Knox stated the terms "promissory note" and "lien" need to be used.

Commissioner Carlson inquired how will that work if someone is at the poverty level, and is not receiving homestead exemption. Mr. Jenkins stated the individual will have to go to the Property Appraiser's office for the homestead exemption if he or she is eligible and not getting it; but the Emergency Assistant Program would be handled by the Housing and Human Services Department.

Commissioner O'Brien recommended including a special provision for grandparents who are raising minor children and using the chart for poverty guidelines. Mr. Jenkins stated staff had not contemplated that possibility, but it is a valid point and should be covered. Commissioner O'Brien stated the guidelines are well written. Mr. Jenkins stated Commissioner Higgs mentioned the fixed asset amount; the number used in the report was the 1996 number; and the appropriate number is the 1999 number, which is $5,000.

Chairman Scarborough stated one of the things the Board discussed was income. Mr. Jenkins responded the program is designed for people who have very low income; the other program had a loophole which would have allowed someone to have $1 million in tax exempt municipal bonds without showing any income; and the proposed program is more restrictive and closes the loopholes. Chairman Scarborough inquired what is needed today; with Mr. Jenkins responding a motion to approve the criteria as amended, authorize movement of the necessary funding from the reserve account, and provide a staff person for Housing and Human Services to administer the program.

Mr. Jenkins stated part of the Housing and Human Services approach is to advise people of other services in the community for which they may be eligible. Chairman Scarborough inquired if the Board does not take action today and brought it back with refinements, is there any problem for the taxpayer; with Mr. Jenkins responding yes, because the longer they wait, the higher their taxes will be, and he would urge expediency.

Commissioner O'Brien stated there are two points of view on this; the Board is talking about taxes on a piece of property that may be worth $40,000 total; the total taxes after homestead exemption probably do not exceed $300; the late fee on $300 is one percent; and $10 to someone in poverty is equivalent to $100 to one of the Commissioners. He stated Mr. Jenkins' concept would be correct if it was applied philosophically, that the late charge would be a big hit to their buying power; so, expediency is important. Chairman Scarborough stated it is just for County taxes.

Commissioner Voltz inquired is it necessary to hire someone now, and could the Board wait to see how the program is going to progress and how many people will apply for it. Housing and Human Services Director Bernice Jackson responded staff can develop a history and provide that information to Mr. Jenkins. Mr. Jenkins stated over the past several years, Mrs. Jackson has voluntarily reduced staff, and is at a bare bones staffing level; if the program generates a lot of activity, at minimum a part-time person would be needed to process papers; but if the Board wants the holistic approach where they try to steer people to other services, it would require full-time staff. He stated if the Board would like to delay for 30 to 60 days, that can be done; but at some point it must be addressed. Commissioner Voltz stated that is a prudent thing to do.

Commissioner Higgs stated it is a good program as outlined with a couple of changes; she is not interested in beefing up staff to such a point that there are more people than are needed; but if the Board wants the seniors to be served, there has to be someone available to work with them. She stated it should be staffed at least at part-time and probably at full-time to see if the program can work; the important function of being able to assist the people with other available programs is a key issue; and she would be in favor of doing this right and evaluating it at the end of one year. She stated it is going to be a cost-effective program and result in people getting the needed services, and may decrease need for other services the County is currently paying for; so she is in favor of adequate funding and staffing on the front end.

Commissioner O'Brien stated he agrees with Commissioner Voltz that the program should be put in place with accountability; if there is no rush, then a staff person is not required; and commented on coordination of social programs. He stated the Board should find out if more people are needed before hiring additional personnel.

Mr. Jenkins advised if the Board continues to create new programs that require additional effort, then it is necessary to have people to staff them; and if the Board does not wish to add staffing, it should not have the program.

Commissioner Carlson inquired if there is an estimate of how many people will be served; with Ms. Jackson responding no, but she can get information on the current numbers, and a percentage of those will probably apply for the program. Mr. Jenkins noted there is no way to project how many people will come in for the program.

Commissioner Voltz suggested waiting until after January 1, 2000 to hire the staff person; and stated that would allow 45 days to evaluate response to the program. She stated it is inevitable that someone will have to be hired if there is going to be a program.

Commissioner O'Brien stated he is looking for accountability; and if someone comes back in January or February reporting there has been a flood of 150 people who want to be on the program, he can perceive hiring a part-time person. He stated the Board should take a look at the reality of the situation, rather than hiring someone because he or she might be needed. Commissioner Voltz stated she thinks staff will be needed basing her opinion on the number of calls, emails and letters she gets to her office; and it takes approximately 60 days to hire someone.

Ms. Jackson stated currently there is a long waiting period for customers in the emergency services offices for current programs, with the waits being more than an hour and one-half. Commissioner O'Brien inquired if they are waiting more than one and one-half hours to be served; with Ms. Jackson responding to be seen by a social worker. Commissioner O'Brien inquired if they are waiting one and one-half hours to receive money from the government; with Ms. Jackson responding yes.

Commissioner Carlson stated although she wants to see accountability, given the timeline, the Board should at least put in a plan to hire someone for the program; and if the Board waits, in January when there are a lot of people who want to take advantage of the program, there will not be the manpower to serve the public effectively. She recommended putting the money upfront; and stated the Board can always take away the position if there is no need for it. Commissioner Voltz stated government never takes away a position. Commissioner Carlson stated the Board can make sure they are accountable. Commissioner Voltz inquired how long will it take to have someone on board; with Mrs. Jackson responding approximately 30 days. Mr. Jenkins stated 30 to 60 days is reasonable. Commissioner Voltz stated before filling the position, Ms. Jackson needs to report on the statistics for the program.

Chairman Scarborough stated he has a problem; it does not say what taxes are exempt; and as soon as the Board passes this, he will have a bunch of people inquiring about it; and the community needs to have a well-defined program. He stated he has no problem voting to go forward, but wants it to come back with clear definitions. He stated seniors have historically helped each other with things like income tax; and it may be possible to train volunteers to staff the program. He suggested contacting AARP and some of the senior centers to see if there is a desire to participate.

Commissioner Voltz stated there are other programs the seniors may need that the volunteers may not be aware of. Chairman Scarborough stated there can be counseling through volunteers.

Commissioner O'Brien withdrew his motion.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve the Emergency Assistance Program for Indigent Seniors, excluding the full-time employee without coming back to the Board with further justification for the position, and including seniors being invited to participate in the program, special provisions for grandparents raising minor children, use of the Poverty Income Guidelines chart, and clearly defined program criteria; and direct staff to bring the item back to the Board on the Consent Agenda.

Chairman Scarborough stated the Board had a problem with whether to defer the hiring of the employee; and inquired can that issue be dropped, a vote be taken, and come back to the employee issue. Commissioner O'Brien stated he is set on not hiring a full-time employee unless staff comes back to the Board explaining the need. Commissioner Voltz stated by the time someone is hired, the Board will know if the position is needed; but the hiring should not be done until it comes back to the Board. Commissioner O'Brien stated they will be flooded with telephone calls, but once those calls have been addressed, the program will move along quietly; and inquired if a full-time person is hired, after all the paperwork is caught up, what then. Commissioner Voltz stated the process will take place every year. Commissioner O'Brien stated it will be the same people, and can be done by mail; and commented on the qualification process. Commissioner Higgs inquired if Commissioner O'Brien included the part-time position in his motion; with Commissioner O'Brien responding he is excluding the full-time employee without Board approval. Commissioner Higgs inquired if that means include the half-time employee; with Commissioner O'Brien responding affirmatively. Commissioner Carlson stated it could be a temporary employee; with Commissioner Higgs suggesting a half-time employee. Commissioner O'Brien advised his motion is to exclude the full-time person; he does not mention a part-time employee in his motion; and a temporary employee would be fine. Commissioner Higgs inquired if Commissioner O'Brien included the asset guidelines; with Commissioner O'Brien responding yes. Commissioner Higgs stated the concept of using volunteers could be the function of the individual hired. Chairman Scarborough stated they may want to work through other people rather than doing it all themselves. Commissioner O'Brien stated the Board may ask them to hire senior citizens, part-time; with Chairman Scarborough responding that would be the best.

Discussion ensued on a part-time employee and details coming back to the Board.

Chairman Scarborough called for a vote on the motion. Motion carried and ordered unanimously.

DISCUSSION, RE: STAFF COORDINATOR FOR BREVARD COUNTY LEGISLATIVE DELEGATION

Motion by Commissioner Carlson, to discuss the proposed position of Coordinator for Brevard County Legislative Delegation. Motion died for lack of a second.

Commissioner O'Brien stated if the Delegation does not want to support its own County because the Board does not hire a secretary, that is blackmail, and he resents it; and the list is getting long as to which position will be eliminated to hire someone for the Delegation. He stated the Board just hired a Human Services staff person part-time to handle the homestead exemption program at a cost of $20,000 per year or more; it hired a Juvenile Coordinator that could cost $60,000 per year, plus benefits; it hired a picture hanger last month at $12,000 a year plus benefits; and it raised the expenditure for Healthy Kids. Commissioner Higgs stated the Board did not hire a picture hanger; with Commissioner O'Brien outlining the duties of the position; and advising it was done voluntarily for the last 15 years. Commissioner O'Brien stated the expenditure for Healthy Kids was raised from $25,000 to $250,000 per year; the Board increased the charity giveaway money by close to $200,000 a year, the Medicare/Medicaid costs have increased by $2.3 million; insurance costs have gone up by $2 million; and jail expansion is needed. He stated if the elected Legislators from Brevard County have their own budget in Tallahassee, they should allow a $70,000 budget increase for a delegation secretary; and they should solve the problem on their own and not rely on the County.

Chairman Scarborough stated he disagrees; the Board has heard when the Legislators go to Tallahassee, they have to take one staff person with them, and one is left in the District office; the staff person in the District is unable to speak to the staff person in Tallahassee because the telephone is so busy; and outlined the difficulties in getting the Legislators together in a coordinated effort. He stated if the Board is able to add someone else to the formula to make the Delegation more effective, it is not like buying a new car, but it is making the car run well by tuning it up. He stated if the Legislature allow more personnel, that is fine; but major players in the State do provide this support. He suggested touching base with members of the Silver-haired Legislature to see if they would be willing to participate on a voluntary basis, if the Board pays for their expenses. He stated if the Board wants to get the most out of its vehicle, it must tune it up; and to let the car run without a tune-up does not make sense.

Commissioner O'Brien stated the idea of using a Silver-haired Legislature person is good and sounds reasonable at this time; but in two years they may say they cannot do it any more and the Board should hire someone. He stated the Board will be back in the same boat, but will not be able to say no, because it has already done something; and he would rather say no now. He recommended the Legislators fund an additional staff person or buy radios so the District can communicate with the Tallahassee staff.

Chairman Scarborough stated sometimes there are events that make it impossible to do what is necessary; and outlined problems during flooding in North Brevard. He stated the Board is hearing that it is physically impossible for the Legislative Delegation to coordinate its activities; and people are going to have less information about how the system works, and having additional help is going to be critical to the County being effective. He stated a lot of times being effective is just beating the other guy to the punch and knowing more than he does.

Chairman Scarborough passed the gavel to Vice Chairman Higgs.

Motion by Commissioner Scarborough, to direct the County Manager to touch base with the Silver-haired Legislature to see if they have any suggestions about volunteers to assist the Legislative Delegation. The motion died for lack of a second.

Vice Chairman Higgs passed the gavel to Chairman Scarborough.

Commissioner Carlson inquired if the intent is to coordinate issues between the Board and the Legislature, or is it all local governments; and read aloud from the examples of duties. She inquired if the Board is going to hire an individual, should the Board have a say in the coordination. Mr. Jenkins responded the intent is to have the employee do the annual Legislative package of the Board, and monitor the status of the Board's issues; in addition, the person would serve as staff to the Delegation, scheduling their public hearings and coordinating activities in Tallahassee; so the employee would work for the Board as well as the Delegation. He stated he would supervise the employee, and when the employee was not in Tallahassee, he or she would be housed at the Government Center. Commissioner Carlson stated the issues come to the Board, and if other municipalities have issues, they bring them to the Board, which includes those issues in the package. Mr. Jenkins advised historically it has not been done that way; and outlined the anticipated duties of the position including coordination and monitoring of the Board's Legislative package as well as serving as staff coordinator for the Delegation. Commissioner Carlson inquired if the immediate supervisor would be the Chairman of the Delegation; and recommended the employee report to someone who will be constant, not changing. Mr. Jenkins stated Representative Posey suggested the employee be supervised by the County Manager.

Chairman Scarborough stated it occurs in Orange and other larger counties; and commented on various ways to handle the position and taking advantage of windows of opportunity.

Mr. Jenkins stated the position is not that of a lobbyist; it is a logistical coordinator; and the person would be doing the coordination for the Delegation and will not be advocating positions on issues. He stated he or she would assist the Board in preparing its annual package, but will not take the place of the staff of the individual Senators and Representatives.

Commissioner Carlson stated the employee would keep the Board informed of what is going on when it happens, and not after the fact; and that is what she is interested in. She stated the intent is to coordinate things going on between the Board and the Delegation, not to coordinate the Delegation. Mr. Jenkins stated the intent is to do both.

Commissioner O'Brien stated the reality is all the employee will do is coordinate the Delegation; and even though the Board will pay the salary, he or she will not be working for the Board. He inquired if he worked for IBM, would he hire a staff person for Harris Corporation; and stated the answer is no.

Chairman Scarborough stated the Commissioners work for the people of Brevard County as does the Legislative Delegation; and inquired if the Board lends a fellow employee some assistance to help serve the public, will it have done its job. Commissioner O'Brien stated the Board is doing its job by serving Brevard County; those people who are elected in Tallahassee also serve the State; and they are paid by the State of Florida. Chairman Scarborough stated the Board can define it as issues that strictly benefit the County, and not get into Statewide issues. Commissioner O'Brien inquired why not just hire another lobbyist; with Commissioner Carlson responding they are more expensive. Commissioner O'Brien stated the position being discussed will cost $100,000 a year including salary, benefits, travel, and expenditures to stay in Tallahassee two to three months a year; this is an expensive proposition; and the Legislators should look at their own budgets. He stated if they cannot do their job with what they have, they should go back to their peers for additional funding to solve their need; and this State problem should not be solved at the County level. Chairman Scarborough stated seven counties have elected to go this route; with Commissioner O'Brien responding that does not mean they are right.

Commissioner Carlson stated she does not have a problem in getting a coordinator as long as the intent is captured and the Board is working with them; her problem was the immediate supervisor; and as long as the County has control through the County Manager, she has a better comfort level. Commissioner O'Brien stated the Board will not have that, and that is part of the real problem.

Commissioner Voltz stated Sharon Luba has been doing this all along; and if she is not going to be able to do it, then the Board needs to have someone, and it would be easier to have someone in Tallahassee. She stated she is not sure where she is on this issue; she sees both sides; but the need is greater than the other side, so she will support hiring a person.

Commissioner Higgs stated when the Board created the Office of Legislative Affairs and Economic Development, she thought that was what that position was going to be doing; and within existing staff there is still the opportunity to do what ought to be done from the County level. She stated she is not comfortable hiring someone to work exclusively for the Delegation; but she is comfortable if they are advocating for the Board's package. She stated she agrees with Commissioner O'Brien that the Board needs to not hire someone for the Delegation, but she also agrees that the Board needs to more closely monitor what happens in Tallahassee because the County's interests are at stake. Mr. Jenkins stated Sharon Luba was in the Office of Legislative Affairs and Economic Development at one time; and when the office split, Ms. Luba took the legislative part with her and Mr. Lugar took the economic development issues. Commissioner Higgs stated if the Board restructures some of the things that are being done in economic development and uses the administrative staff of the County Manager's office, some of the key functions can be achieved; and that is the way it ought to be done. She stated when the Board first discussed the issue, she agreed there was a need to better coordinate the issues between the lobbyist, Delegation, and the Board; but she is not comfortable creating the position.

Commissioner Voltz suggested developing better guidelines for it. Chairman Scarborough stated guidelines are still an issue. Commissioner O'Brien stated guidelines are not the issue; the Board should not be spending money on this issue; and State money should fund the State position. Commissioner Higgs stated the Board's abilities to manage its legislative issues may need to be enhanced; that will help the Delegation; and she is supportive of better coordination of the Board's package. Commissioner Voltz commented on having an individual to coordinate the Delegation's meetings locally and look at the Brevard County issues in Tallahassee. She suggested tabling the issue until Mr. Jenkins returns with more specific guidelines.

Chairman Scarborough stated there are not enough votes to do something today; and the County Manager needs to touch base with the Commissioners. He stated he plans to pursue this issue because it is going to be critical as there is a shift to an almost entirely new Delegation; and he hopes the votes are with him and not with Commissioner O'Brien. Mr. Jenkins stated he will be happy to meet with the Commissioners individually to discuss the issue.

Motion by Commissioner O'Brien, to do nothing about the proposed position for the Brevard County Delegation. Motion died for lack of a second.

The meeting recessed at 10:29 a.m. and reconvened at 10:45 a.m.

PERMISSION TO INITIATE FORECLOSURE PROCEEDINGS, RE: MSBU PROGRAM PROPERTIES WITH DELINQUENT SPECIAL ASSESSMENT LIENS

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize staff to initiate foreclosure proceedings against all properties within Benefit Units which have defaulted on paying the levied special assessment lien. Motion carried and ordered unanimously.

Chairman Scarborough inquired if there were special circumstances, would the County Attorney bring it to the Board; with County Attorney Scott Knox indicating he would.

FINAL PLAT APPROVAL, RE: SAWGRASS AT SUNTREE SUBDIVISION, PHASE 1

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to grant final plat approval for Sawgrass at Suntree Subdivision, Phase 1, subject to minor changes if necessary, receipt of all documents required for recording, and developer responsible for obtaining all necessary permits. Motion carried and ordered unanimously.

PERSONAL APPEARANCE - SCOTT ELLIS, RE: DECLARATORY JUDGMENT LITIGATION VERSUS HOME RULE CHARTER COMMITTEE

Scott Ellis requested the Board dismiss Brevard County Case No. 99-39945CAH, Brevard County versus Home Rule Charter Committee. He stated the Home Rule Charter Committee collected the signatures of approximately 16,000 registered voters to place three amendments on the ballot; signatures were verified by the Supervisor of Elections for term limits for County Commissioners, requirement of referendum to implement new MSTU Taxing Districts, and requirement of referendum to issue new, not refinanced, bond issues; and after validation, the request was made to the Board to place those items on the ballot per Charter Section 7.33. He read aloud Section 7.33; and stated this is the only language in the Charter which addresses what the Commission is to do once petitions are validated and submitted; and there is no provision in the Charter for judicial review of proposed Charter amendments. He stated the State of Florida does require judicial review of proposed Statewide amendments once 10% of the signatures are collected; at that point it goes to the Florida Supreme Court for decision; and if it is positive and Constitutional, then the other 90% of the signatures are collected. He stated the nearest in the Charter is in Section 7.32 which says, "the sponsor of an amendment shall, prior to obtaining any signatures, submit the text of the proposed amendment to the Supervisor of Elections with the proposed ballot summary and the form on which signatures will be affixed." Mr. Ellis stated this was done; the Supervisor of Elections accepted the language; and the Committee moved forward to collect signatures. He stated while nothing prohibits a private party as plaintiff from seeking such declaratory judgment, the County Commission has no provision in the Charter for its actions in initiating a judicial review. He stated the originally drafted Charter in 1994 went before the voters with no judicial review; the proposed tax cap amendment in 1996, which was approved by over 85% of the voters, was not submitted to the courts for review; and the amendments proposed by the Charter Review Committee, which were going to the ballot in 1998, did so without judicial review. He stated during this entire period Scott Knox has been the County Attorney; and never have any Charter amendments gone to the courts for review. He stated in 1998 amendments were proposed for a voting referendum requirement for MSBU's and for single-member election of School Board members; and if anything would be questionable, it would be the County Commission placing a ballot issue on how School Board members are elected; but neither of those issues went to the courts. He stated never has the issue come up before about sending any proposed Charter amendment to the courts; and he and Commissioners Scarborough and Higgs were on the Board through the whole Charter process. He stated he is disturbed by the way this has gone on. He stated three proposed amendments went through grueling debate and legal scrutiny during the Charter Committee meetings; and at no time during that process did the Committee request a judicial review be performed for any of the proposed amendments. He stated when the issue came before the Board, there was no discussion about going before a judge, or if the Board had the right to take the amendments before a judge. He stated not only is there no provision for judicial review in the Charter, but the pursuit of such a ruling by the Board has placed the government in the role of plaintiff versus the Home Rule Charter Committee; and the Home Rule Charter Committee followed the letter of the law in collecting the signatures. He stated some may claim the County's legal action is not a lawsuit, but when an individual is served process papers delivered by a Deputy Sheriff, and said papers notify the individual that he is a defendant, has a mandatory court date, and must prepare a defense, that is the essence of a lawsuit. He stated the citizens must pay for an attorney to defend their actions which were carried out 100% in accordance with the law; the greatest feature of the Charter is the right of citizens to petition for amendments to the Charter by referendum, a right which did not exist in a non-charter county; and in 1994 while on the Board he worked to insure there would be no language in the Charter that would enable the Board to thwart citizen-initiated amendments from reaching the ballot. He stated Section 7.3.3 of the Charter is clear, "the Board shall cause any Charter amendment proposed to be submitted to the electors"; and requested, given that there is no Charter provision for judicial review, the Board obey the Charter and place the items on the ballot. He stated the lawsuit should be dropped, and the Board should fulfill its duties under the Charter.

Chairman Scarborough stated the County Attorney has advised that once amendments come to the Board, the Board cannot alter the language; and inquired what if the court says the language is ambiguous and should be changed but the Board has no ability to change it. County Attorney Scott Knox advised the court will not do that; and it will look at the language of the petition, amendment, and ballot and say it is valid or invalid. Chairman Scarborough inquired what if the court says that the Board is mandated under the Charter to put the amendments on the ballot; with Mr. Knox responding the Board will put it on the ballot. Chairman Scarborough stated the Board has to put it on the ballot regardless of what the court says; with Mr. Knox responding if the court says it is invalid, it does not have to be put on the ballot.

Mr. Ellis inquired his point is why is it before a judge in the first place, and under what provision of the Charter is the Board going for judicial review. Mr. Knox stated the Charter cannot impose jurisdiction or competence on any court, and that is a matter of State and Constitutional law; and all the rights that the County has to file suit are derived from Constitutional or State law. He stated under Florida State law, if the Board does not file a suit to challenge the validity of the amendments and puts them on the ballot and they are passed, the Board loses all right to do that. He stated the Charter cannot require a court to review anything; and that comes out of the judicial precedents under Constitutional and State laws. Mr. Ellis inquired how does the State do that with Statewide amendments; with Mr. Knox responding there is a Constitutional provision saying that is the way it has to work. Mr. Ellis stated there is precedent for having it done, but there is no precedent in Brevard County for what the Board is doing. Mr. Knox stated there is not any because nobody has ever voted to do it before; when Mr. Ellis was on the Board and the Cap-it amendment came up, he rendered an opinion that a similar provision had been found unconstitutional; but the Board chose to let it go forward. Mr. Ellis stated at that point the Cap-it amendment was the law, and all the amendment did was to incorporate it into the Charter at a lower number; with Mr. Knox advising that is true, but there was a case that had come down after the original Special Act that said it was unconstitutional. Mr. Ellis noted it is possible to find cases throughout the State for one side or the other. Mr. Knox stated the Board at that time chose not to challenge. Mr. Ellis stated citizens go through the petition process because the Board will not put an issue on the ballot; it serves no purpose to have the Charter allow the Board to knock the issue off the ballot; and expressed his frustration. Chairman Scarborough stated historically there was some concern about the Board putting on amendments through its own initiative; with Mr. Ellis noting the Board can place something on the ballot with four votes. Chairman Scarborough stated when the Board gets the initiative from an outside source, it is precluded from touching it. Mr. Ellis stated that is exactly the way it was supposed to be done. Chairman Scarborough stated while the Board cannot touch the language, by sending it to the court, the court can say it does not go on the ballot. Mr. Knox stated if there is something that comes to the Board that it feels has a chance of being declared unconstitutional, the Board is duty-bound to find out that is the case before it goes on the ballot to be approved. Mr. Ellis stated it could be challenged by the public or by any individual Commissioner. Mr. Knox stated unfortunately the particular amendments impact the Board's authority; under current law, the Board is allowed to pass MSTU's; and the amendments take away that authority. Mr. Ellis stated all Charter amendments impact the County Commission's authority; with Mr. Knox responding not in a way that is inconsistent with the State law, which is what the amendments in question do. Mr. Ellis stated they are not inconsistent with State law; with Mr. Knox advising that is Mr. Ellis' opinion, and his opinion differs. Mr. Ellis stated just because something is not required in State law does not mean it is forbidden; and just because a referendum is not required for an MSTU does not forbid a Charter county from having a referendum requirement. Mr. Knox noted he has a different view. Mr. Ellis inquired why were MSBU's fine, but not MSTU's; and stated they went through an MSBU referendum requirement for Charter amendment in 1998 which did not go to a court for judicial review. Commissioner Higgs noted it did not even pass the Charter Commission; with Mr. Ellis advising it went to the ballot.

Discussion ensued on whether the issue went to the ballot.

Mr. Knox stated whether it went to the ballot or not was dependent upon the decision of the Board; and if it was unconstitutional and had been challenged by the Board at that time, it would have been thrown off the ballot, but it did not happen that way. Mr. Ellis inquired was there a memo from the County Attorney about unconstitutionality; with Mr. Knox advising the Charter Review Commission went out of its way not to ask the County Attorney. Mr. Ellis advised there was an attorney on the Charter Review Commission, and he did not say it was unconstitutional; and there is no provision for what the Board is currently doing.

Commissioner Carlson stated Mr. Ellis indicated he worked while on the Board to thwart any interference of the Board for people getting anything on the ballot; and read aloud from a verbatim transcript from July 6, 1998 where Mr. Ellis expressed concern about putting on a Charter amendment that could open up the County to a lot of litigation, and advised he wanted to make sure before going to the ballot that everyone understands because he does not want a dispute over the ballot language. She stated it appears from Mr. Ellis' statements that he wanted to insure that any proposed ballot language be reviewed for legality, and that anything placed on the ballot was lawful; and inquired if Mr. Ellis' position has changed since last year. Mr. Ellis responded no, all three of the issues went through the Charter Commission process to determine whether they are lawful or unlawful; and they went through everything except a judge. He stated what happened was they got voted down, but they were not stricken down by a judge; and there is a big difference. He stated his point was that he wanted to make sure whether the amendments are lawful or not because there were various attorneys involved; and he wanted to be sure that when the issues got to the ballot, they would be good. He stated if they got all the way to the County Commission for a vote to place it or not place it on the ballot, he felt they were valid; and while a lot of people raised issues about whether they liked or did not like the issues, it was not raised whether they were lawful or unlawful last year. Commissioner Carlson stated a great deal has been said about the requirements of Charter paragraph 7.3.3; but the preceding paragraph 7.3.2 says that amendments to the Charter not inconsistent with State Constitution or General Law may be proposed by petition; and inquired if Mr. Ellis believes the authors of the petition had an obligation to determine whether or not the petition questions were consistent with the State Constitution and General Law. Mr. Ellis responded they cannot get a judge to rule on that. Commissioner Carlson inquired if the Charter Commission attorney advised of any problems with the petition language; with Mr. Ellis indicating he did not. Commissioner Carlson inquired why, since Mr. Ellis was concerned last year about the ballot proposals being lawful and the Charter specifies they must be lawful, he would object to that position this year. Mr. Ellis responded it was already done last year; and it is the same language as the amendments from last year. Commissioner Carlson stated the current Board is looking at it with more legal scrutiny than the previous Board looked at it; with Mr. Ellis noting the Board is the same except for Commissioner Carlson.

Commissioner Voltz stated when the recommendations from the Charter Review Commission came before the Board, it only looked at the four that were actual recommendations and not the other three; and the Board knew it had to put on the ballot whatever the Charter Review Commission gave it, which were the four issues. Mr. Ellis stated the fact that the Board knew when the Charter Commission presented those issues, it had to put them on the ballot is the essence of why he is present today; and Section 7.3.2 is no different whether the amendment comes from the Charter Commission or by petition. He stated the essence of Section 7.3.3 is that the Board of County Commissioners shall cause any Charter amendment proposed to be submitted to the electors for their approval; if it is defeated, there is no legal issue; and if it passes, then anyone can challenge the legality of what was passed. Commissioner Voltz inquired if one of the Charter amendments that was brought to the Board by the Charter Review Commission had been determined by the County Attorney to be invalid or a legal issue, what would the Board have done. County Attorney Scott Knox responded typically he does not render opinions without someone asking for one; this time three Commissioners were interested in his opinion on the validity of the amendments; and he rendered an opinion. He stated last time no one asked him for an opinion on the validity because it was not relevant as the amendment did not come to the Board; and explained how the issue is raised for something to go for judicial review. Commissioner Voltz inquired if Mr. Knox is saying that it is the Board's responsibility to look at whatever is brought to it and ask for advice from the legal counsel; and if the Board had not asked, the amendments would have been put on the ballot. Mr. Knox responded if no one had asked, he would not have offered an opinion. Commissioner Voltz stated if the Board asks the County Attorney a legal question, she is not going to go against his advice; if he thinks this should go for judicial review, she supports that; and she is not going to go against something illegally and possibly be held liable. Mr. Ellis stated there are two separate items; one is the opinion and one is the action; and it is one thing for the County Attorney to state he believes the items not to be constitutional and to be flawed; but when the Board votes to take action to initiate the judgment with the Home Rule Charter Committee, that type of action is not allowed for in the Charter. He stated there is no provision in the Charter for judicial review; and if there was a provision, the proper time to do judicial review would be the same way the State does it, once 10% of the signatures are collected, the item is sent to a judge for a determination, and if it is lawful, they continue to collect signatures. He commented on the time necessary to collect 16,000 signatures; stated now it is going to court; and it is an unfair situation, and not what was intended by the right to petition in the Charter. He stated he agrees Mr. Knox's opinion is acceptable; but when the Board takes action, it is the plaintiff in the case, where in normal circumstances, it would be the defendant, with someone from outside County government taking action against the County; and outlined what happened concerning the non-partisan election of County Commissioners. He stated since the County is the plaintiff, it is causing citizens to spend their money to defend the lawfully-collected petitions. Commissioner Voltz stated she does not know why any Commissioner would bother asking Mr. Knox for his opinion if he or she was not going to follow direction regarding that position. Mr. Ellis stated he does not understand the purpose because under the Charter, it is not the Board's decision to decide if it is lawful or unlawful. Commissioner Voltz inquired if Mr. Ellis, when he was Commissioner, ever asked the County Attorney for an opinion and made a decision accordingly; with Mr. Ellis responding not on a Charter amendment. Commissioner Voltz inquired if he ever did so on anything; with Mr. Ellis responding yes, but not on a Charter amendment, as the Charter is clear on the Board's duty to place the proposed amendment on the ballot to be submitted to the voters for approval. He noted there were Charter amendments during the time he was on the Board, including the tax cap amendment and the entire Charter in 1994; and they were never submitted for judicial review.

Commissioner Carlson stated Mr. Ellis said there is no judicial review in the Charter, but paragraph 7.3.2 provides that amendments to the Charter not inconsistent with the State Constitution or General law may be proposed by petition; and last year he indicated that whatever goes on the ballot should be lawful; so she does not understand why he is fighting it. She stated Mr. Ellis is going to end up postponing it; with Mr. Ellis advising he does not understand how he is postponing it; and the issue is the County. Commissioner Carlson stated the amendment should get some sort of judgment and go on the November, 2000 ballot. Mr. Ellis stated he is present to request the action be dropped, not prolonged. Commissioner Carlson inquired what if the Board does not want to drop the action; with Mr. Ellis responding then it is up to the Board whether it is prolonged or not; and he is not an intervenor or party to the suit. Commissioner Carlson stated the attorney for the party in the suit should address the Board. Mr. Ellis stated the Board is acting outside the Charter; with Commissioner Carlson disagreeing. Mr. Ellis stated it is clear that the provision in the Charter is for an outside party to challenge the amendment if passed; and the Board cannot be plaintiff or initiate the action.

Mr. Knox stated the court will have to decide the issue. Mr. Ellis stated the Board's actions mean any group of citizens who collect signatures will be subjecting itself to litigation in the courts, if the Board does not approve. Mr. Knox stated that is not necessarily true because this is the first time it has happened. Mr. Ellis stated the Board is setting a precedent. Mr. Knox stated this is the first time it has happened in this County; it does not have to happen every time an amendment is proposed; and it is unfair of Mr. Ellis to say the people are being sued by the County when they filed suit against the County on the same Charter issue. Mr. Ellis stated that is a totally different issue; and their issue was to place the amendments on the ballot, not the language. Mr. Knox stated the County will probably file a motion to consolidate the two things because they are both Charter related and affect whether things go on the ballot. Mr. Ellis stated just because they are both Charter related does not mean the issues are related; one is placement on the ballot; the other is ballot language; and there is no dispute that they followed all the lawful rules to place the items on the ballot. Mr. Knox stated if the amendments are inconsistent with State law, they did not follow all the rules, which is the whole point. Mr. Ellis stated it is not possible to get a ruling from a judge to tell whether it is consistent or inconsistent with State law when someone begins collecting petitions; and it is not possible to get a declaratory judgment without two parties. Mr. Knox stated if someone came in with a Charter amendment that said the County shall record a deed transferring all scrub habitat in the County and not pay any compensation for it, and then came up with ballot language saying, "Shall Brevard County protect scrub habitat", is it Mr. Ellis' opinion that the Board should put that on the ballot. Mr. Ellis responded that would be by Commission vote, not by petition, but if he were a Commissioner he would vote against it because the language is misleading; and inquired if Mr. Knox is saying all three amendments have misleading language. Mr. Knox stated there is at least one ballot amendment where that is an issue, but not three. Mr. Ellis inquired why the other two are going to court; with Mr. Knox responding because in his opinion there are two that are inconsistent with State law and one that has a problem with ballot language. Mr. Ellis stated it is not the Board's purview to do that. Commissioner Voltz stated that is a matter of opinion that could be argued all day. Mr. Ellis stated this is what he fought against ten years ago; it is power instead of money; the signatures were collected; the Charter was deliberately written so the Board cannot thwart people from getting items on the ballot; and that is why the Charter was written the way it is.

Chairman Scarborough inquired if someone came in with something abhorrent and crazy that would lead to entering a quagmire of confusion for the County, is Mr. Ellis saying that regardless, the Board should just proceed to put it on the ballot; with Mr. Ellis responding absolutely, and as an individual citizens he would work to see that it was defeated, which is an option for any Commissioner. Chairman Scarborough stated if something was put on the ballot and passed, it would put the County Attorney in the position of having to defend something that is not defendable. Mr. Knox stated it also puts the Board in a position of doing something that is unconstitutional and not being able to do anything about it. Commissioner Carlson noted it causes a liability situation. Mr. Ellis stated there is not a liability situation; and if the Board followed the Charter, it could be sued by private property owners to have the Charter amendment invalidated on constitutional grounds. Chairman Scarborough stated it clearly states that the Board shall cause any Charter amendment proposed under the Section to be submitted to the electorate for their approval; and inquired what if it is something that is only going to lead to subsequent legal problems. Mr. Ellis stated that would cause the issue to be defeated at the polls; with Chairman Scarborough responding it would be nice to think that would always happen, but there is a great deal of confusion about the net effect. Mr. Ellis inquired what gives the Board the ability to determine whether something is constitutional or not; with Chairman Scarborough responding he is not saying the Board has that ability; but he is saying if it is ultimately going to court, it would be advantageous to have the court address it at the front end, although he sees Mr. Ellis' point of view. Mr. Ellis stated the Board could say that about every amendment that comes up; and there is the potential for everyone who collects signatures to go to court.

Mr. Knox stated the Charter requires the Board to place items on the ballot that come from the Charter Review Commission or to it through the petition process, but the qualification is that they cannot be inconsistent with State law; and the Board does not have a duty to put something on the ballot that is inconsistent with State law or if the Board thinks there is a problem. Commissioner Carlson stated that is what paragraph 7.3.2 says. Mr. Knox stated if the Board thinks there is a problem with it, it needs to get a judicial determination that it is or is not consistent; if it is, it goes on the ballot; and if it is not, it does not go on the ballot. Mr. Ellis stated people cannot get that information; and what the Board is doing is denying people access to the ballot by using the courts. Commissioner Carlson stated the Board is not doing anything; and it has to wait for a judgment to say what it should be able to do. Mr. Ellis stated the Board has already take action; there are three defendants in court who paid for an attorney and are preparing a defense; so clearly the Board has done something; and reiterated the Board could place all three items on the ballot and campaign against them.

Chairman Scarborough stated that is not appropriate; he has always taken the position the Board should not take a position before the electorate; and it is not the appropriate role of a Commissioner to take positions on those things. Mr. Ellis stated that is Commissioner Scarborough's philosophy; but it was not his philosophy; and advised of his actions against the Viera referendum for lease purchase. Chairman Scarborough stated his salary is paid by the people of Brevard County; to some extent his time and efforts are the property of Brevard County; and what is information to one person can be propaganda to another. Mr. Ellis inquired if the Board spent money on the firefighter referendum; with Chairman Scarborough advising he voted against that.

Commissioner Carlson stated the Board is here for the majority of the people, not just those who signed the petition; and the Board wants to be sure it serves everyone. Mr. Ellis inquired how many more signatures are needed; and stated they are not required to collect a majority of the number of voters to bring a petition forward. He stated he understands Commissioner Carlson's point; but the referendum is to determine whether there is majority support of the issue; and by going through the courts, there may never be a referendum. He stated the Charter is clear that the issue should be placed on the ballot.

Charles Moehle inquired why does the Board continually take the avenue of stonewalling the people from having their say; stated it is within the Board's jurisdiction to drop the lawsuit and move ahead; and the question in the community is why the Board would want to ignore the wishes of 16,000 people to put the item on the ballot as soon as possible, which would be the March election. He stated he was present when the Board discussed the issue and asked for the determination to be made by the judge; the Board asked for an expedited or emergency hearing; and nowhere in the petition for the court are the words "expedited" or "emergency" mentioned. He stated it is clear that the direction is to let this drag out as long as possible, thereby stonewalling the people; if there is no request for an expeditious hearing, there is no chance of getting swift justice; and that, along with what people consider excuses from the Board for not putting it on the ballot so people can vote, is not going to serve any of the Commissioners in good stead with the community. He recommended the Board drop the lawsuit and let the referendum move ahead or do everything possible to petition for an emergency and expedited hearing.

Chairman Scarborough stated the Board did request that. Mr. Knox advised that is a matter of State law; it is required under the declaratory judgment action that it be expedited; and the way that will be accomplished will be by filing a motion for an expedited hearing once he gets an answer from someone. Mr. Moehle inquired why was it not part of the petition; with Mr. Knox responding it does not have to be done as part of the petition. Mr. Moehle inquired why could the County Attorney not add it to the page requesting relief; with Mr. Knox responding filing a motion for an expedited hearing gets the attention of the judge a lot faster than reading a 25-page complaint where the request is included at the end. Mr. Moehle inquired why the request could not have been done the next day; with Mr. Knox responding he has no one to send it to now; and if someone files an appearance in this case and answers the allegations of the complaint, then he will have someone to send the motion to. Mr. Moehle stated he and a lot of other people think it is totally inappropriate to sue the Home Rule Committee; the Board should have sued the 16,000 petitioners, but did not want to for political reasons; and now the Board is stonewalling the process by not taking the expedited action.

Mr. Knox stated the Home Rule Committee is a political committee formed under the Florida Statutes; they are recorded with the Supervisor of Elections; and under Florida law, in order to sue a non-corporate entity, it is necessary to name the members of the entity.

Commissioner Voltz inquired if Mr. Knox is saying it will be expedited; with Mr. Knox responding affirmatively. Mr. Knox explained the two ways to expedite the action.

Mike Moehle stated he has never seen a court proceeding which was accelerated by consolidating it with another one; it complicates the issues; and it will make it take a long time. Mr. Knox noted he just had a case consolidated that accelerated the trial by approximately one year.

Mr. Moehle stated the declaratory judgment Statute provides that no action or procedure is open to objection on the grounds that a declaratory judgment is demanded; it means the Board needs to put the issues on the ballot and instruct Mr. Knox to do his best to have the matter heard by the courts before it is voted on; and the Board does not have the right to not take action on the petitions pending the outcome of the complaint. Mr. Knox stated the Board does not have to put this on the ballot until November, 2000; and he assumes there will be a decision by a judge before then. Mr. Moehle inquired if there needs to be a vote to determine whether it should be put on the March or November ballot; with Mr. Knox responding hopefully this will be resolved by March, 2000 and that decision can be made. Mr. Moehle stated it needs to be voted on in time to decide which ballot it should be put on; with Mr. Knox responding he will cross that bridge when he gets there. Mr. Moehle emphasized the Board is not allowed to delay action on it pending the outcome of the matter; the Florida Statutes are clear; and inquired when the Supervisor of Elections would need it to be done in order to put it on the March ballot; with Mr. Knox responding generally he likes to have them 60 days before the referendum, but he can also do it with 30 days. Mr. Moehle advised the same Statutes provide that, "No declaration shall prejudice the rights of a person not parties to the proceedings"; his rights are being adjudicated in this matter as are the rights of every taxpayer in the County; but they have no say before the court in this matter, and he has a problem with that. Mr. Knox advised Mr. Moehle can always intervene. Mr. Moehle inquired if Mr. Knox would oppose the intervention; with Mr. Knox responding no. Mr. Moehle stated the court is not required to allow anybody to intervene; with Mr. Knox advising if anyone has an interest in the litigation, they try to let them in. Mr. Moehle stated he echoes the sentiments of Mr. Ellis who said the language of the Charter is clear that the Board shall place any proposed amendment on the ballot, and it is not within the Board's purview to file suit against people who were instrumental in getting the petition signed.

Commissioner Voltz read aloud from paragraph 7.3.2, "amendments to the Charter, not inconsistent with State Constitution or General Law, may be proposed by petition signed by at least 5%"; and stated that is what she is basing her decision on.

Mr. Knox stated the Committee that formed the ballot language and amendments is responsible for what they put on paper if it does not comply with the requirements of the Charter.

Commissioner Higgs stated it is incumbent on the Board to determine in the judicial process whether the amendments are valid and constitutional; and commented on the 1962 ruling by the Florida Supreme Court that said appellees had the right and duty to challenge the validity of sections of the Home Rule Charter. She stated the Board is moving forward quickly to get them cleared up; and it is the Board's job to put what is legal and constitutional on the ballot. She noted there was a question earlier about the MSBU provision, and that was specifically excluded from the provisions of the earlier Charter amendments that went before the voters in 1998.

Mr. Ellis inquired if Commissioner Higgs is saying that the MSBU was not on the ballot in 1998; with Commissioner Higgs responding the provision that was on the ballot in 1998 had language that specifically said, "Brevard shall not let any new ad valorem special assessments, excluding MSBU's, without approval of the majority of the electorate residing." Mr. Ellis stated it was a referendum requirement for MSBU's; with Commissioner Higgs responding it excluded the MSBU's. Mr. Knox stated that was done because of an opinion rendered that it was unconstitutional to have them subject to a special referendum. Mr. Ellis inquired how the Home Rule Charter Committee could get a declaratory judgment before collecting the signatures without having an opposing party; with Mr. Knox responding those have to come to the Board, and they would come the same way the one in question came up. Mr. Ellis advised Mr. Knox said it was incumbent upon the Home Rule Charter Committee to determine if the issue is constitutional or not; and his point is how would they do so. Mr. Knox noted the Committee had an attorney. Mr. Ellis advised the attorney could render a legal opinion, but not a judge's ruling. Chairman Scarborough stated how to get it to the court is the dilemma; and he does not know the answer. Mr. Ellis stated his point was, in deference to General Sterling, Mr. Notary, and Mr. Strickland, they could not get to the court prior to collecting the signatures. Commissioner Carlson inquired why not. Mr. Knox stated he does not know if they

consulted with a lawyer or not. Mr. Ellis stated he can go to five lawyers and get five different opinions; but he cannot get a judge's declaratory judgment unless he has an opposing party to get into court. Commissioner Higgs stated that was the Board's dilemma as well; with Mr. Ellis advising it is not a dilemma if the Board follows the Charter. Commissioner Higgs stated the Board is following the Charter. Mr. Ellis reiterated Mr. Knox said it was incumbent upon the petitioners to determine if it was constitutional or not, and it is impossible for them to do so.

Chairman Scarborough the question is how to proceed from this point. Mr. Ellis stated it should not be thought that General Sterling did anything improper as he followed the letter of law as best he could. Chairman Scarborough stated it was not intentional on the part of those getting the petition to bring something forward that was unconstitutional or ambiguous; and advised of difficulties with the EEL's referendum and the term "maintenance." Mr. Ellis noted that was challenged by the Clerk of Courts; and it was an obvious choice for declaratory judgment because the County had one interpretation and the Clerk of Court had another. Chairman Scarborough stated the Board needs to create a mechanism to provide some degree of certainty before 16,000 people sign a petition that it is not going to end up being a fiasco. Mr. Knox suggested a Charter amendment to address it. Mr. Ellis reiterated his position on lack of legal method to get a declaratory judgment prior to petition, and challenging issues on the ballot. Chairman Scarborough stated it would be nice if there had been a methodology to go to court in the initial phase. Mr. Ellis suggested the possibility of it going before the Board at a certain point and the Board agreeing not to challenge it. Chairman Scarborough stated the problem is the Board of County Commissioners is not the court; with Mr. Ellis advising it becomes the court when it preemptively challenges before something has gone on the ballot. Chairman Scarborough stated the Board made a decision based on an opinion from its attorney that he has concerns and they should be resolved by the court. Mr. Ellis reiterated that is not the way it is supposed to be.

ACKNOWLEDGE RECEIPT OF ORDINANCES FROM CITY OF ROCKLEDGE, RE: ANNEXATION

Commissioner Carlson recommended developing interlocal agreements with other cities using the draft interlocal agreement with the City of Melbourne as a model; and stated she does not have a problem with the particular annexation, but has concerns about who will take care of Barnes Boulevard. County Manager Tom Jenkins suggested a motion to direct staff to pursue the same type agreement with all the cities the County is pursuing with Melbourne.

Commissioner O'Brien stated he made that motion approximately three years ago; any time a municipality starts to annex, it is supposed to take the road with it; and described the situation in Melbourne. He stated what happens is the city will try to annex pieces of property leaving the road to the County; the County loses the property taxes on the road, but has to maintain the road; and his motion three years ago said that any time property is annexed, the road must be annexed with it.

Commissioner Carlson stated when 51% of the properties on the road are annexed, the road will go with them; and Barnes Boulevard is clearly past 51%. Mr. Jenkins stated the interlocal agreement gives the authority to do what Commissioner O'Brien wants to do.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to acknowledge receipt of Ordinances #1195-99 through 1199-97 and 1199-99 regarding voluntary annexation of real properties by the City of Rockledge; and direct staff to pursue an interlocal agreement with cities regarding annexations. Motion carried and ordered unanimously.

SELECTION, RE: BOARD OF COUNTY COMMISSIONERS CHAIRMAN AND VICE CHAIRMAN

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to select Commissioner Nancy Higgs as Chairman. Motion carried and ordered unanimously.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to selection Commissioner O'Brien as Vice Chairman. Motion carried and ordered unanimously.

Chairman Higgs expressed gratitude to Commissioner Scarborough for his job as Chairman; and commented on accomplishments during his term. She presented a plaque to Commissioner Scarborough in recognition of his service as Board of County Commissioners Chairman from November, 1998 to November, 1999. Commissioner Scarborough stated he enjoyed being Chairman; and thanked the Board.

WARRANT LISTS

Upon motion and vote, the meeting was adjourned at 11:48 a.m.

ATTEST:

TRUMAN SCARBOROUGH, JR., CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

SANDY CRAWFORD, CLERK
( S E A L )