December 5, 2005

The Board of County Commissioners of Brevard County, Florida, met in special workshop session on December 5, 2005, at 9:00 a.m. in the Government Center Florida Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chair Helen Voltz, Commissioners Truman Scarborough, Ron Pritchard, D.P.A., and Susan Carlson, Assistant County Manager Don Lusk, Assistant County Attorney Terri Jones, and Outside Counsel Mike Davis. Absent was Commissioner Jackie Colon.

DISCUSSION, RE: BOARD’S POSITION ON CONFLICT WITH HOUSING AUTHORITY

Assistant County Manager Don Lusk reintroduced Mike Davis, outside legal counsel; stated they had negotiation meetings with Martha Kirby, Chair of the Brevard County Housing Authority last week, due to a call the Authority made; and they were interested in bringing it to a good meeting, so they did quite a bit of work on Thursday and Friday. He stated Housing and Human Services Director Gay Williams did all the research that needed to be done with as much information as could be shared; she enlisted the assistance of Steve Burdett, who is supposed to be here this morning; but they had a chance to meet via the phone; and some Commissioners were able to have the same conversation on the phone. He stated Mr. Davis has done some legal review and will go into the background and findings and talk about the Board’s legal position on solid waste and the next steps they would need to take if they are unable to resolve the issues today.

Commissioner Carlson inquired if staff could call Mr. Burdett to see what is going on because he is going to add to the conversation. Ms. Williams stated she called him and could not get an answer in his office, but will keep trying.

Chair Voltz inquired if there is a way to get speaker buttons in the Florida Room so she knows who wants to talk; and stated it will be beneficial to all of them.

Chair Voltz stated she was very disappointed at the last meeting and felt the Authority’s attorney did an excellent job in presenting its whole case and felt the Board did nothing; she does not feel like Mr. Davis presented the Board’s side of the case at all, just a little bit here and there; and she does not feel like he earned his money that day. Mr. Davis apologized, and stated there is no way he would ever persuade the Authority that the Board’s case is correct. Chair Voltz stated she does not think it mattered; what mattered was that the Authority presented a really good case; they were on television, and Mr. Davis did not say anything; so it looked like the Authority was right and the Board was wrong. Mr. Lusk stated he did not think they were going to do that. Chair Voltz stated they should have been prepared because attorneys know better. Mr. Lusk stated they should have limited their time; and they should have thought ahead a little bit from a staff perspective and planned for that, but they did not do that. Chair Voltz stated they have an opportunity today and she is not going to let that happen today; and she is not going to have them present a case and the County do absolutely nothing, which is what happened the last time. Chair Voltz stated what they need to do today is present their side and say this is the way it is; she does not think the Authority knows anything; they know exactly what Mr. Sellers tells them and that is all that they know; and they do not know what they do not know, so the Board needs to tell them what they do not know.

Commissioner Carlson stated the Board heard the Authority’s spiel from their attorney’s side and all the details all the way to the point they are at right now; so everybody is very clear on what has transpired up to this point. Chair Voltz stated what the Board needs to do is tell the Authority it presented its case the last time and the Board is going to present its case this time.

Commissioner Scarborough stated he was trying to understand where the consensus of the Board was coming from; they basically were briefed but did not buy off on the Board’s position; they were yet formulating their thoughts; and by meeting this morning, they are going to be able to go in and say this is the Board’s position and it is fine if the Authority does not accept it, but that is where the Board stands. Chairman Voltz stated that is what the Board needs to do right now; it needs to formulate its position and talk to Mr. Lusk about what the position should be.

Legal Counsel Mike Davis stated he did not understand what the Board wanted him to do; but this is not a day in court; they had those conversations back and forth between the lawyers; and what he thinks is important for him to do today is tell the Board where it is and what its options are depending on what happens today. He stated some of what has been happening over the past week he has not been involved in; Mr. Lusk and Ms. Williams had conversations so they are going to have to present their information; but if they do not settle it today, then there is a mandatory mediation; and it is a fairly fast process. He stated they are supposed to agree upon a mediator within 14 days, and within 14 days after the mediator is agreed upon, there is supposed to be mediation, so it will happen pretty quickly. He stated that is not a bad thing because they represent cities and counties all over the State; he just got through with a mediation on behalf of a city on the other coast; and they did not think it would mediate, but they had the right mediator; and basically the mediator was able to persuade the lawyer for the other side challenging the city that he did not have a case, and the lawyer was able to persuade his client and it mediated; so those things can happen.

Chairman Voltz stated she knows they are under a time crunch because by December 8 they need to know whether or not they are in good standing with the County so they can apply for the $4 million; so they have to settle this thing today. She stated while mediation is an option, it has to be the last option; and she does not even know what the option at that point would be for except for the Board to get its money back for PILOT.

Assistant County Attorney Terri Jones stated that is actually the Authority’s hammer; the Board does not have to settle; they have the incentive to try to settle to be in good standing; the competitive process is separate; and the Board always has that opportunity. She stated it goes to the Affordable Housing Council and then to the Board of County Commissioners for final approval; it is like any other RFP process, except they might have deadlines as far as spending and awarding money; and she does not know what those are.

Gay Williams stated that is a plus for the Board; the Authority need to settle because it needs the money; it told the Board over and over again that it had money to complete the projects when the Board gave it the variance for the Merritt Island project; and Dr. Fayson said the Authority did not need any more because it had money, but it actually does not have the money for the projects but has applied for about $4 million.

Chair Voltz inquired if John Bober could bring up the video clip of the zoning meeting where Dr. Fayson said the Authority had some money to complete the projects.

Commissioner Scarborough stated if they get into the “he said, she said” scenario, it may not lead to the right person; perhaps the Authority made a stronger legal presentation, but in the end, the Board appeared to be more caring about the quality of affordable housing and trumped them, not because it came out with legal arguments, but because the Board had a concern beyond an accounts payable. Chair Voltz stated she does not want to show the clip, but if Dr. Fayson says he did not say that, they would have the video to prove otherwise. Commissioner Scarborough stated he does not want to get into that and prefers to go to higher ground for the best. Chair Voltz stated she was concerned that Dr. Fayson would say he never said it; but if they have the video clip, they could look it up and hear what was said.

Commissioner Pritchard stated the last time they did what they did and he could not care less because it gave the Board an opportunity to see where they were; they are in lockstep but they are wrong; whether the Board did anything or not does not matter; and he agrees the Board came out on the high side as a caring group wanting to get the facts and the Authority came out as penny pinchers not wanting to pay their fair share. He stated when he walked out of that meeting, he knew at this meeting the Board was going to prevail because it has the leverage.

Commissioner Carlson stated they use the $4 million as an incentive, but the bottom line is it may likely go someplace else. Commissioner Pritchard stated that is their problem; the Board has the leverage to have them settle today; and once the Board decides what its position is going to be, that is going to be its position. Commissioner Scarborough stated it would be nice if the Board could walk in with a position. Commissioner Pritchard stated the Board can tell the Authority this is it and if they do not like it, then it can go to mediation.

Chair Voltz stated the Board can formulate a position, present it to the Authority, and let it go across the hall for ten or fifteen minutes to review it and come back and tell the Board whether or not it wants to accept it. Ms. Jones stated they cannot do that under the Sunshine law. Mr. Lusk stated the Authority knows where staff is. Commissioner Scarborough stated the Board was given many different signals. Chair Voltz inquired what is the next step; with Ms. Jones responding the Board can leave the meeting, but the Authority has to stay in a public meeting. Ms. Jones reminded the Board that the RFP was a competitive process and there are other bidders. Chair Voltz inquired if Ms. Jones knows who they are; with Ms. Jones responding no. Mr. Lusk stated he will get that information for the Board. Ms. Williams stated there were 16 developments that applied for hurricane housing assistance funding; and the Authority had three projects. Chair Voltz requested staff copy that list for the Commissioners. Ms. Jones stated the point is the money is not going to be sitting in a bank account waiting for the Authority and is actually going to be used for affordable housing; so it is just whether the Authority gets to spend it. Chair Voltz stated she understands the Authority is asking for all of it; with Ms. Jones responding it is asking for a good chunk of it.

Commissioner Pritchard stated the Authority wants the $4 million; the Board can say what it wants and if the Authority does not want it, they can go to mediation and it may not get the $4 million. Commissioner Scarborough stated he would not threaten the Authority with the $4 million. Commissioner Pritchard stated the Authority may say the Commissioners are meanies and will not give it standing to do wonderful things for all those people with the $4 million. Commissioner Scarborough stated the last time the Authority was in the Board’s face threatening it in a number of ways; they need to go to mediation; the Board has been afforded an opportunity to come back and give a counterproposal; and if the Authority does not accept it, they will go to mediation. Commissioner Carlson stated mediation will have to deal with the Solid Waste assessment as well because the Authority did not believe it owed that, but now is agreeing that it does. Commissioner Pritchard stated he wants to have a prepared answer to smooth the bar if the Board is told it is not giving the Authority the opportunity to apply for $4 million and the Board is terrible.

Mike Davis stated the main legal issue is the Solid Waste assessment that the Authority has been paying all those years without protest; it says it should not have paid it; and whether it is a fee or an assessment, he thinks it is a fee. He stated the Authority told the Board in a letter early on when it got involved in the process that it was not 100% sure; and the court could go either way on that. He stated they agree with what the cases say; there are only a few cases out there and they all cite the same list of factors; and the court looks at all those factors to try and decide whether it is a fee or a special assessment. He stated if it is a special assessment, then the Authority was not supposed to pay it; but if it is a fee, it is supposed to pay it. Chair Voltz stated the Authority has agreed to pay it at this point. Mr. Davis stated it agreed to pay it going forward and it also said if there is litigation, then it would claim that it should not have been paying it all those years and will try to use that against the Board in the case. Chair Voltz inquired if Mr. Davis thinks that the fact the Authority paid it all those years is not going to be in its favor; with Mr. Davis responding absolutely; and it is a strong argument that it is a fee, but it is not 100% sure; and the only way to find out is to go to court. Chair Voltz stated it is a service fee because the County picks up the Authority’s garbage and it pays the County for the service. Commissioner Pritchard stated the Authority’s position was that the Board is opening a can of worms and it could eventually lose with all the obligations it has Countywide. Mr. Davis stated that is the Authority’s position. Chair Voltz stated she would like to take the Authority to court on that one because she thinks the County would win. Mr. Davis stated he thinks the Authority is weak on that issue because statutorily it is authorized as a fee; and Florida Statutes say the Board can collect those fees through the non-ad valorem assessment process; so the fact that it is collecting it on the tax bills does not turn it into a special assessment. He stated there are a couple of things that cut against that argument; one is that it is called an assessment in the Ordinance; and that is one of the factors the court will look at. He stated it is collected on an annual basis and not billed monthly on utility bills; and that cuts against it also. Chair Voltz stated some cities collect monthly and some do not have them on the bills and it is collected through Waste Management; so it is all the same thing because there are a variety of ways that fee is paid. Mr. Davis stated there is a difference between advocacy and advice; what he is doing is giving the Board advice; he is not advocating its position; and if they go to court or in mediation, they will advocate the Board’s position. He stated he thinks the Board has a strong position; it is not an absolute guaranteed winner that it is a fee and not a special assessment, but assuming the court were to say that it is a special assessment, then the Board has a whole different issue about what happens to the fact that the Authority paid it all those years, and should they bring a suit to recover that or counterclaim. He stated there are waivers, estoppel arguments, latches arguments, statute of limitations arguments, all of which inure to the County’s benefit; inquired on the other side of the coin, what happens to PILOT; advised there is no question they are obligated to pay PILOT and have not done it for many years; and the Authority conceded and agreed that it is obligated to pay that. He stated the Authority says if the County brings a lawsuit to try and collect that, it would be subject to the statute of limitations; they beg to differ with them and do not think it is; and they litigated that same issue in Panama City Beach recently, so they are very familiar with that issue and thinks the County would come out ahead on that. He stated the bottom line is it has a strong case; what is particularly helpful right now is they have a lot of incentive to settle it; and even if they do not, the next step is mediation, which is helpful in two regards. He stated if the Board gets a good mediator, the odds are pretty good that the mediator will structure a settlement; both sides will get a chance to run their arguments by somebody from the outside who is a capable evaluator; so it is a way for both sides to test the strength of their arguments, which all happens before anybody goes to court. He stated the Board would get a report back whether or not it is mediated; so it is in a no-lose situation.

Commissioner Scarborough stated the Board needs to say it endorses staff’s recommendations, but not enforce it; and until it comes to that posture as a Board it is going to have a constant dialogue, which is not going to be fruitful. Commissioner Carlson inquired if Mr. Davis will be giving the Board’s position; with Commissioner Scarborough responding the Board needs to agree on its position right now before the Authority walks in.

Chair Voltz stated the Board discussed PILOT, which the Authority has not paid; and it has the money to pay it. Mr. Lusk stated staff believes the Authority has the money. Commissioner Carlson inquired if it is for the $628,000 or just the $278,000; with Mr. Lusk responding it has the $278,000 and may have more than that; on the sheet staff worked up, they think the Authority has almost $500,000 it could spend right now; but that was based on being very conservative with the budget. Commissioner Carlson stated Mr. Lusk mentioned to her that the County was giving the Authority a little bit because with the lesser amount of $278,000 they would get two County representatives on the board, but the Authority was not going to have anything to do with that; and inquired if it is a fall back position if the Authority does not do that. She inquired if they see themselves very close but not quite there, do they take the ante up a bit on PILOT or give up those two positions; and what is the best thing to do to avoid mediation.

Commissioner Scarborough stated at this point the best thing to do is take a posture that the Board feels comfortable with; even though it may go to mediation, it can always come back and
talk about a settlement; and what the Board needs to do is take a position it is comfortable with because if it comes off that position, the Authority might take it as a sign of weakness or resolve. Commissioner Scarborough stated the Board needs to take what it thinks is appropriate and not be arbitrary.

Chairman Voltz inquired what is the position of the Board. Commissioner Pritchard inquired how much does the Authority owe the County; with Mr. Lusk responding $628,000. Commissioner Pritchard stated he wants that amount, and that is his position. Mr. Lusk stated as staff went into negotiations, they took the position that money was not the main issue; and for 25 years of history, the issue was representation on the Authority board. Commissioner Pritchard inquired why; with Mr. Lusk responding in 1958, some Board of County Commissioners created a housing authority for the unincorporated areas by Resolution and appointed the first set of members; however, after that time the State law says the Governor makes those appointments; and he is not diminishing those important people across the table because they are all very into it. Commissioner Pritchard inquired why does Mr. Lusk think it is necessary to have two people sitting on that board; with Mr. Lusk responding his experience is when the Commissioners get calls about the Authority, there is nothing County staff can do about it, but give them the phone number of the director and the board if staff happens to have their names; and if it does not do any good, then they can call the Governor’s office. He stated over the years it has been very problematic and difficult to work with the Authority; the Board of County Commissioners is responsible for the whole continuum of care including affordable housing; and they are very interested in every aspect of that, from the very low income citizens to making things affordable. Commissioner Pritchard stated the Board should have two members on the Authority and $628,000, and that should be its position.

Chairman Voltz stated she will be more than happy to contact the Governor’s office and explain the situation; Ms. Williams can put something together regarding some of the issues they have had over the years; and she can tell the Governor that the Board needs to have two seats on the Authority board and leave it up to him and not bother the Authority.

Commissioner Pritchard inquired about the next issue. Chair Voltz stated the Authority is asking for 8.5% and that is what it agreed to. Commissioner Pritchard inquired if it is the aggregate charged rent. Chair Voltz inquired what does the Contract say; with Mr. Lusk responding 10% is in the Cooperative Agreement now; and in the spirit of what he said earlier, they were playing with 9% and the Authority came back with 8.5%. Chair Voltz inquired if the Authority agreed to 8.5% charged rent; with Mr. Lusk responding yes. Commissioner Pritchard inquired what does the Board want; and recommended 9%, as it can always go to 8.5%. He noted if they go with 8.5%, the Authority may say 7%. Chair Voltz stated the agreement says 10% and at the last meeting the Authority wanted 7.5% of collected rent. Ms. Jones stated she does not think they got to that issue. Mr. Lusk stated in writing all along they have been at 7% collected rent. Ms. Jones stated the Board has always been at 10% charged rent.

Commissioner Carlson stated she has a question about the two County representatives and whether the Board has the authority to do that; and it would have been interesting to have a letter in hand with historical assessment of what has been going on and say the Board is going to submit it to the Governor. Chair Voltz inquired if the Board has to let the Authority know that it is doing it because if it does, then the Authority would send letters to the Governor saying it does not want the representatives; and it may send a signal to the Governor that he may need to do something.

Mr. Lusk stated two years ago when it was put in the legislative package to change the State law, the information they got back was that it was not a good battle to fight because the Governor holds those appointments near and dear to his heart and it would be a battle royale to do that; so the Board has to be careful how it plays that issue because it is going to put the Governor squarely in the middle. He stated it has to be fixed legislatively; and it says the Governor can appoint seven members, but he has only appointed five.

Chair Voltz stated the Board can send a letter to the Governor with all the problems it has been having and asking for two appointees from the County staff, perhaps Gay Williams and Terri Jones. Ms. Jones stated she does not think the Board can do that. Commissioner Pritchard stated the Governor can appoint seven; he has appointed five; and two County representatives would not be the majority; and inquired what is the big deal. Chair Voltz stated it may not be an influence, but it would be an eye as to what the Authority is doing. Ms. Jones stated if the Board is going the legislative route, the Florida Statute was written in the 1940’s before the 1968 Constitution allowed County home rule; so it is a leftover. She stated the city councilpersons have an ability to pick one person each like any other board; but for some reason, it was never changed. Chair Voltz stated that can be indicated in the letter; and inquired what Ms. Williams’ opinion is on not advising the Authority that the Board is sending a letter to the Governor. Ms. Williams stated Mr. Lusk had conversations about appointments to the Housing Authority board. Mr. Lusk stated they did once before when Mr. Cook was being appointed; they sent some names of people who might be interested in serving on that board; he called to see what the status was and had a conversation with Ms. Knight; and she said staff called up there. Commissioner Scarborough stated the Governor’s office is in the middle and knows it is there. Chair Voltz stated it has been the same since 1940; all cities appoint their own people; and the County is only asking for two people to be appointed by the Board so it can have some sense of how the money is being spent. Commissioner Scarborough stated if the Governor becomes sensitive to the Board’s interest, he may say he is not going to make any more appointments without a call to each Commissioner or the chair to see if a person can work with the Board. Chair Voltz stated she will call the Governor. Commissioner Pritchard stated he does not like the idea of staff or the Board calling to say who they do not want.

Commissioner Pritchard recommended the Board address the solid waste disposal fee. Mr. Lusk stated the Authority said it is not an issue if all the other things are worked out. Commissioner Scarborough stated it is an issue. Commissioner Pritchard stated he would go with continuing payments on the assessment fee.

Mr. Lusk stated on expansion of the Authority board, one of its concessions, based on money and stuff like that, is that it would give the County two immediate nonvoting appointments.

Chair Voltz suggested not bringing the issue up at all. Commissioner Scarborough stated there is nothing to gain because the Governor can consult with the Chair of the Board of County Commissioners. Commissioner Carlson stated the Authority will assume nothing is going on. Chair Voltz stated they will assume nothing is going on and the Board will go in the back door; and she is going to personally call the Governor’s Office because she has it in with the Governor and can call and make sure things happen. Commissioner Pritchard inquired if the representatives are off as a negotiating item; with Mr. Lusk responding if it is taken off the table, it does not need to be addressed.

Mr. Lusk stated the last issue is assurance of affordability. He stated it came up in their negotiations last week with Ms. Kirby; HUD is requiring them, because they are withdrawing funds left and right, to do new things; as they do that and use tax credits and different mechanisms, one of the concerns staff has is at some point, at 15 years, when they use tax credits, there is a period of affordability, meaning that they have to continue to serve the very low income for that time; and they are trying to negotiate where that period of affordability would go off into the future as far as possible. He stated if other concessions were made, they would be willing to change and push the period of affordability out to 30 years.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to accept the affordable housing period of 30 years as the Board’s position. Motion carried and ordered unanimously.

Chair Voltz stated $628,000 is owed to the Board; the Board wants continued payments of the solid waste fee; and it wants the affordability period of 30 years. She requested a motion for Ms. Williams to draft a letter for her to send to the Governor’s office. Commissioner Scarborough suggested Chair Voltz get with John Thrasher to work with him as he may want to set up a phone conversation with her and the Governor’s office. Commissioner Carlson stated Chair Voltz needs all the historical information Ms. Williams can get together.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to authorize Gay Williams to get the history on the Housing Authority and prepare a letter to the Governor for the Chair’s signature.

Commissioner Carlson stated Commissioner Colon is not here; there is a majority of the Board who have agreed, but she does not know if Commissioner Colon was briefed enough that she would agree with what the Board just said. Commissioner Scarborough stated Commissioner Colon knew she had to be at this meeting to be part of the decision. Mr. Lusk stated staff can tell her what took place. He inquired how does the Board want them to proceed at the meeting; with Commissioner Scarborough responding Chair Voltz could call on Mr. Lusk to explain the Board’s position. Ms. Jones inquired if the Board wants Mr. Davis to speak first; with Commissioner Scarborough responding there is no reason for that. Chair Voltz stated unless they get into some legal issues, then the Board can look to Mr. Davis; but at this point Mr. Lusk and Ms. Williams would do that and say as little as possible.

Commissioner Scarborough stated the Chair can adjourn the meeting and say that is the Board’s position. Chair Voltz stated she will tell the Authority the Board will adjourn the meeting and give it time to come back and further discuss the proposal; and they know they are under a time crunch, so there is no reason to bring it up.

Mr. Lusk inquired if when he talks about the Board’s position, it does not want him to mention the membership at all and to leave it off the table; with Chair Voltz responding if the Authority does not mention it. Mr. Lusk inquired if they do, what does the Board want him to say; with Chair Voltz responding it is off the table.

Ms. Jones inquired if the Board wants all of it on television including the Authority’s discussion or recess for its conversation; with Chair Voltz responding it would be fair not to have it on television.

Upon motion and vote, the meeting was adjourned at 9:54 a.m.

ATTEST: _________________________________
HELEN VOLTZ, CHAIR
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

___________________
SCOTT ELLIS, CLERK

(S E A L)