MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

April 14, 2009

 

 

The Board of County Commissioners of Brevard County, Florida, met in regular session on April 14, 2009 at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.  Present were:  Chairman Chuck Nelson, Commissioners Robin Fisher, Trudie Infantini, Mary Bolin and Andy Anderson, Interim County Manager Stockton Whitten, and County Attorney Scott Knox.

 

 

The invocation was given by Fr. John Vaughan, All Saints Church, Cocoa.

 

Chairman Nelson led the assembly in the Pledge of Allegiance.

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson to approve the September 18, 2009 Special Minutes, January 29, 2009 Special Minutes, and February 3, 2009 Regular Minutes.  Motion carried and ordered unanimously.

 

 

Commissioner Fisher read aloud a resolution recognizing April 19-26, 2009 as Juvenile Justice Week.

 

Motion by Commissioner Fisher, seconded by Commissioner Infantini, to adopt Resolution recognizing April 19-26, 2009 as Juvenile Justice Week.  Motion carried and ordered unanimously.  

 

 

A representative from Together in Partnership stated the Partnership is a group of agencies that collaborates on a County plan, and looks at data and needs in the community. 

 

 

RESOLUTION, RE:  RECOGNIZING FAIR HOUSING MONTH 

 

Commissioner Fisher read aloud a resolution recognizing April 2009 as Fair Housing Month.

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to adopt Resolution recognizing April 2009 as Fair Housing Month.  Motion carried and ordered unanimously.    

 

 

A representative from Fair Housing stated they have been working closely with the Housing and Human Services staff for the last five years, and have made a lot of progress in Fair Housing rights for residents of Brevard County; there are still some issues with permitting officials not reviewing plans for multi-family dwellings to make sure they are accessible before they are built; and Fair Housing is dealing with those issues after they are built, which is much more expensive; but in other areas Fair Housing is making progress. 

 

 

Chairman Nelson read aloud a resolution recognizing May 18, 2009 to May 25, 2009 as Brevard County Beach Safety Week.

 

Motion by Commissioner Bolin, seconded by Commissioner Infantini, to adopt Resolution recognizing May 18, 2009 to May 25, 2009 as Brevard County Beach Safety Week. Motion carried and ordered unanimously. 

 

 

Donna Bollinger stated Legacy Sports & Life Skills is a program designed to develop future leaders with character; the organization is putting together many programs; and the difference in the programs for kids is that they are going to weave life skills into each one of their programs; they are spearheading junior lifeguards and safe surfing because people learn so much about life in the ocean; and they are hoping to create a farm team for County lifeguards. 

 

Chairman Nelson stated this is timely because a couple of years ago Brevard County had a very bad season with ten drowning deaths; and it is important that everyone is always vigil.   

 

 

 

Chairman Nelson read aloud a resolution proclaiming the week of April 19-25, 2009 as Administrative Professionals Week.

 

Motion by Commissioner Infantini, seconded by Commissioner Bolin to adopt Resolution proclaiming April 19-25, 2009 as Administrative Professionals Week.  Motion carried and ordered unanimously. 

 

 

Charlene Spangler stated she would like to remind everyone that Administrative Professionals day is Wednesday, April 22^nd.  She suggested ideas for acknowledging administrative professionals, such as membership in International Association of Administrative Professionals, personalized business cards, paying for, and encouraging, them to attain certifications such as the Certified Professional Secretary or the Certified Administrative Professional, a monetary bonus for above average work.   

 

 

 

Dr. James Fenton stated perhaps the most important thing about the sun is that it always seems to put a smile on everybody’s face; Earth Day is April 22^nd, and in honor of Earth Day, the Florida Solar Energy Center along with the Brevard Community Green Team, in Cocoa are celebrating through the “Sunsational Earth Fest”; it is an all day activity on April 18, 2009, 9:00 a.m. until 4:00 p.m. on the Brevard Community College Cocoa campus as well as on the grounds of the Florida Solar Energy Center; and it will focus on renewable conservation and awareness.  He stated the event is designed for the whole family; the sponsors are Bright House Networks, Florida TODAY and Solar World; there will be Saturn Hybrids available; and Progress Energy will have fuel cell powered automobiles, which are automobiles that hopefully people will be purchasing in the near future.  He noted there will be solar equipment vendors, a farmers market with local organic produce; there are events for younger kids, such as a solar boat demonstration where the children have actually constructed solar powered boats and race them; there is a bounce house, face painting, lectures on solar energy and energy efficiency, and tours of the Florida Energy Center; and the Planetarium will be showing an IMAX movie, “The Living Seas” at a reduced rate of $3.00 at 11:00 a.m. and 2:00 p.m., and information can be found at floridaenergycenter.org. 

 

Chairman Nelson read aloud the proclaiming April 18, 2009 as Earth Day 2009 in Brevard County. 

 

Motion by Commissioner Bolin, seconded by Commissioner Infantini. to adopt Resolution proclaiming April 18, 2009 as Earth Day.  Motion carried and ordered unanimously. 

 

 

Chairman Nelson stated Florida Power & Light is going to be breaking ground on a major solar facility at the space center in the near future; and it is going to be providing a significant amount of power to the space facilities. 

 

 

Commissioner Anderson read aloud the resolution recognizing National Telecommunicators Week.

 

Motion by Commissioner Bolin, seconded by Commissioner Fisher to adopt Resolution recognizing National Telecommunicators Week.  Motion carried and ordered unanimously. 

 

 

Mike Brickner, 9-1-1 System Manager for Brevard County, expressed appreciation to all the 9-1-1 takers who are the first of the first responders; when people do not know where else to call or what to do, they know that help is only the push of three buttons away; and those three buttons are 9-1-1.  Mr. Brickner introduced the telecommunicators of Brevard County and expressed appreciation to each of them.

 

 

 

Commissioner Infantini read aloud the resolution congratulation Melbourne High School Lady Bulldog Soccer Team. 

 

Motion by Commissioner Infantini, seconded by Commissioner Fisher, to adopt Resolution congratulating Melbourne High School Lady Bulldog Soccer Team for winning the Class 6A State Title.   Motion carried  and ordered unanimously.

 

 

Chairman Nelson stated they were one of the first two Championships in the County this year; and there have been eight State Champions in Brevard County at the High School level this year. 

 

The representative from Melbourne High School Lady Bulldog Soccer Team expressed appreciation to the Board for honoring the team; and stated the team worked very hard. 

 

 

Commissioner Bolin read aloud the resolution, Protect the American Worker.

 

James Hildebrand stated he is a 20-year resident of Brevard County and a native Floridian.  He stated under the Employee Free Choice Act, all workers, even those who voted against a union, are not able to work to protect and would be unionized; once again, the union organizers have collected a simple majority of signatures; the Taft-Hartley Act, passed on June 23, 1947, gave the State of Florida the ability to enshrine Right-to-Work in the State’s Constitution; and this meant that individuals could not be forced, or had to be a part of a labor organization, to be employed, and that one did not have to be a member of a labor organization to receive the wages and benefits that the Collective Bargaining Agreement provided; and it would not force anyone to join if they chose not to, and no union dues can be forced to be paid upon any non-member, as they are bound only by the terms and benefits the Collective Bargaining Agreement provides them, even though they are not a member of a labor organization.  He stated if the Board wants to protect and support the workers in Brevard County it will give the workers the true choice, and not support the anti-worker resolution; and the Board would rewrite the Resolution to state that support of the Employee Free Choice Act and the American Worker.  He stated he would like to request the Board look at the wording of the Resolution and re-word it to address Congress to demonstrate its support for the American Worker and the Employee Free Choice Act.

 

Christine Michaels, Melbourne-Palm Bay Area Chamber of Commerce, stated she urges the Board to adopt the resolution as read; and in support of that, she will read to the Board a Resolution adopted by the Chamber of Commerce Board of Directors on March 26.  “Whereas the Employee Free Choice Act would effectively eliminate the secret ballot currently used to determine if unions will represent employees in a workplace, and expose employees to coercion and intimidation.  Unions may or may not be good for employees but that is their decision to make based on all the facts and circumstances; employees should be able to make  that  choice  privately,  without  union  organizers  or company officials looking over their shoulders.  Exposing employees’ decisions to unions, employers, and their co-workers opens the door to coercion and intimidation; the secret ballot process has served so well, for so long, in so many situations because it respects values.  And whereas, the bill would require federally appointed arbitrators to write labor contracts that are binding for two years; if after only 125 days of negotiations there is no agreement on a first contract, the matter could be submitted to binding interest arbitration; where a federally appointed arbitrator would decide all of the terms and conditions of the union contract, from paying benefits to work rules, and out-sourcing.  Employers could be forced to radically changes their business models or eliminate important competitive advantages.  And whereas, the Employee Free Choice Act would impose a completely unbalanced increase in penalties, under the bill, penalties on employers would be increased significantly without any corresponding increase in penalties on unions.  Such one-sidedness increases conflict with any sense of fairness or balance; therefore, be it resolved that the Melbourne-Palm Bay Area Chamber of Commerce imposes the Employee Free Choice Act.” 

 

Dan Bennett stated he currently serves as the second Vice President of the Brevard Federation of Teachers (BFT); and he is here to speak against the resolution.  He stated he strongly supports the Teachers Union and is proud to be a union member and a member of the American Federation of State, County and Municipal Employees (AFCLO); and he would like to talk about what the Resolution means to him.  He stated before an officer of the BFT he was a teacher; most recently he taught at Space Coast Junior/Senior High as a math teacher; but before a social studies teacher; and when he was a social studies teacher he would proudly conduct activities with class discussions where he would bring up a topic and discuss both sides of an issue.  He stated he taught his students to examine facts and to recognize immediately if something is a fact or an opinion and to cut to the chase and realize where someone is trying to spin something to their advantage; and by calling the resolution something that protects the American worker, he sees the spin because unions can come back and say they are protecting the American worker, too.  He stated each ‘whereas’ in the resolution should be fact; it should be a clear, open, obvious fact, without being tainted by something that is clearly an opinion.  He stated in looking through the resolution, the second whereas paragraph, “The Employee Free Choice Act represents a misleading attempt to bolster Union membership under the pretext of promoting workers rights”; and stated no, the Union is trying to promote workers rights, it is not trying to trick anybody; it is clearly an opinion statement; the secret ballot suggests employees are going to be opened up to  harassment and coercion, but it is not; the process right now is that if someone wants to unionize, they discuss the pros and cons of joining a union, and ask people to sign a card, completely their choice, yes or no; and if they do not want to, then they do not; and the next statement says even if a person voted against the union or did not sign a card, they are still forced to unionize.  He stated he is a member of the Teachers Unions in Florida, which is a Right-to-Work State; he does not have to join the union, and he does not have to pay his dues; and the State is not a closed-shop State, so nothing about Employee Free Choice Act would force people to join into it.  He noted if someone is struggling economically, or if a person does not believe what the Union stands for, then they do not have to join; when people unionize, they tell their employer they could negotiate one-on-one; for example, someone could tell their boss they would like a raise, or talk about work conditions; but employees who unionize believe they can get a better deal collectively; and if a workplace does not want to negotiate collectively, then they just do not join the union.  He stated the fifth “whereas” paragraph states, “Workers would be forced to submit to a union promotion system”; that is absolutely false, as workers negotiate that; and a Union can collectively bargain what the system of promotion will be; there might be a workplace out there where they have automatic system of promotions or a seniority thing, but there is nothing against saying the contract will have promotions based on merit; and this is just trying to predict the future by saying the union system will be based on seniority.  He stated without binding arbitration the cards are clearly held by an employer; this is seen in the Tax Collector’s Office, which is why those workers chose to unionize; they have an employer who gets a final say, this is what the contract will be, without going to some sort of arbitration, then it will never get resolved anyway; binding arbitration does not necessarily have to be in a bad way; and he liked the last speaker from Melbourne-Palm Bay Chamber of Commerce, said the employer and the employee may choose to go to binding arbitration; and if a they really feel they are stuck, they choose, but they do not have to.  He added in summary, the “whereas” paragraphs are loaded with opinions; loaded with things that are not known to be true; there are a lot of work places where unions work, and there are workplaces where unions would not be right; and he would like to expand the free choice to employees and make sure employees have the opportunity to unionize if they so choose.

 

John Bregg stated he is a member of the Orlando Regional Chamber of Commerce, and also the President of the Electricians Union.  He stated there is no intimidation that occurs in an organizing drive; he understands the business aspect of union verses non-union; the oldest electrical contractors in the State of Florida with license number 11, because they did not issue one through ten, is a union contractor; and has been his entire time in existence.  He stated the Electricians Union understands the necessity of business, and keeping businesses viable; they are not trying to put anyone out of business, but at the same time they have to work to protect workers rights; that is what they do as unions, and there has to be a balance; and they do not believe it is still fair for contractors, and/or businesses to take the competitive edge to the unnecessary point of buying un-American made products.  He stated they do not believe that unemployed Americans is a good thing for America; they do not believe that Americans without health insurance is a good thing for America; the Electricians Union is asking Congress to give employees a choice whether they want to be union; 90 percent of the time when 75 percent of the workers want a union, they force intimidation and firings from their contractor or employer; and so less than 50 percent of that time the contract goes through because of the intimidation that takes place. He stated what his union is trying to do is make sure the intimidation does not occur from the unions or the contractors; and he sees both sides of the issue, but he will have to oppose the proposal.

 

Steve Williams stated he is the Business Manager for the Electrical Workers Union and represents construction electricians at the Space Center.  He stated if it was based on intimidation, certainly unions would represent more than three percent of the private sector in the State of Florida; that is the reality, that is the facts that the gentleman was talking about earlier; unions do not have control or say over what is happening in these people lives; they are simply trying to have a better standard of living; and the Employee Free Choice Act is simply about contract language, or collective bargaining, which is similar to what most business would like to have to protect interest, because it is good business.  He stated the difference is the union workers all have a community interest; it is more efficient to negotiate on behalf of a group of people rather than a one at a time; it works well and has for many years; it has worked well for his members at the Space Center; and the more pressing issue is with the retirement of the Space Shuttle and the degeneration of Flight and Constellation Program.  He stated the Board is aware there is going to be a major gap regarding employment; many of the workers, especially in maintenance and operations, come from the building trades, which is who he represents; that is where they came from and he suspects that is where they will be looking to go back to for the construction phase of the next generation of flight; and they all currently work under collective bargaining of some sort, whether it be with the Machinists Union, Transport Workers Union, IBEW, and all the other number of labor unions out there that represent those workers.  He stated they have high-skilled, high-wage jobs in Florida, and that is something that is very limited in the State; it is not so much the Employee Free Choice Act that the unions are afraid of, as it is the secret ballot issue; certainly, any American is for the secret ballot, and the union supports that; but the problem with it is that it is a delay tactic that has been used by businesses many times; he has been involved in a lot of organizing campaigns; and the window of opportunity is not as great as is should be because the Nation Labor Relation Act was basically designed for factories, and manufacturing plants; where people have permanent jobs, and are there forever.  He stated the election process is a bar to getting to where the workers need to be to find out if, in fact, they are going to be represented; they have to go through appropriate collective bargaining union hearings; and businesses learn that it works out well for them because the longer they can stall this election the better off they are in being able to have their captive audience meetings, and to be able to bring these groups and tell them all these things that may or may not be true; he has been doing this for 40 years; and his organizing efforts in the State of Florida have been dismal because he cannot get it done timely.  He advised people get tired of waiting on things; the only thing he has to sell is his credibility, as he would never lie to a person about what he is able to accomplish for them; but unfortunately, the spark is there for a little bit of time and they are trying to make a living for their families; and he cannot blame them for moving on.

 

Lew Jamieson stated he is the President of Machinists Union Local 2061 with membership at Kennedy Space Center; he was intrigued when he heard the Board was going to consider this resolution, and even more intrigued when he realized what the title of the resolution was; he finds it illustrative when a lower body of government makes comment on issues that are actually the purview of a higher body of government; and he finds it illustrative to take a look at that lower body’s record relative to the issue.  He stated in Brevard County there are employees that have not had raises in years; he is not talking about tangible raises, he is talking about no cost of living, and just no raises period; there have been County employees that have been furloughed, laid off, or had their hours cut; and many people know County employees who work two jobs, not for vacation money but just to make ends meet and pay the bills.  He stated the County has had a Constitutional Officer that has spent, literally, hundreds of thousands of dollars to oppose an organizing effort, and once found that the effort met the rule, spent more money to drag out contract negotiations; and it appears to him that the Board, instead of finding time to take positions on issues that are a purview of a higher body of government, might want to find ways to protect Brevard County workers.  He stated he would urge the Commission to be defeat the resolution.

 

John Anij stated he is with the Florida AFLCIO; and he would like to comment on a few things  that  have  not been  said yet.  He stated it is a lie that the secret  ballot would  be taken away; the Employee Free Choice Act is an amendment to the National Labor Relations Act, and this is the first change since 1947, which was the Taft-Hartley amendment; and the proposed change is so important because a lot has changed in the workplace since 1947.  He stated right now, when the union election happens, there are two methods to get a union into place; workers can either go through majority sign-up or election; both have been honored and both have been legal since 1935 when the Wagner Act was signed into law; and companies like AT&T Wireless, Kaiser Permanente and even Disney have authorized unions through majority sign-up over the last Century.  He stated it is not new and it is not taking away any rights; what it does is change an outdated system of laws that give employers too much power in a union organizing drive; it allows employees to decide how they want to be represented; it does not take anything away; if employees want to have a secret ballot, they can have a secret ballot under this amendment; if the employees want to have a card check to recognize their union station or their right to bargain collectively, which is a right under the United Nations, then they can do that as well; and the United Nations says it is a basic human right to form collectively to bargain for better wages and benefits.  He stated if they want to form under a secret a ballot they still can under the resolution; it does not take away a right to any worker to have a secret ballot; what it does is allow a worker to actually have a chance unionize; stated in an election one out of five workers get fired from supporting a Union; that is illegal, but under the law right now there are no penalties; and that is something Employee Free Choice Act is going to fix.  He stated what happens is that workers are intimidated and put into rooms where they are harassed; all of this is illegal, but because there are no laws against it, it becomes rampant; there are companies out there that offer money-back guarantees that they will beat the union, or the company will get their money back; and there is a systematic way to make sure workers cannot collectively bargain for better wages and benefits.  He noted a union worker makes 30 percent more and is 50 percent more likely to have benefits than a non-union worker; maybe healthcare at a better wage for working families is a good thing; and he wishes the topic could have been discussed on Thursday when a lot working families could have come to the meeting.  He advised 60 million people in America right now would join a union if they could, if they were not afraid of intimidation and firing; jobs are hard to come by, and to have a job be sustainable to know that one can provide for his or her family and have a living wage, not only helps that family but helps the community; and instead of only having jobs go to Wal-Mart and various job that pay them minimum wage, so not only can they only spend minimum, when giving someone a chance to actually earn a living and have a voice at work, then the Board is empowering Brevard, not only as consumers but as citizenry to be active and to be engaged in the community.

 

Denise Diaz stated she is with Central Florida Jobs with Justice, which is a coalition of community organizations as well as students; they come together to promote workers rights; and the organizations would like the Board to vote no on the resolution and to let the legislation be taken care of at the Federal level.  She stated Employee Free Choice Act is a top priority for American workers, and not just for organized labor; the economy is severely out of whack, and working people are committed to restoring some balance in creating an economy that works for everyone; and she shares the Boards concerns to preserve the rights of American workers, and making sure in restoring that there is a vibrant economy for Brevard County citizens as well as business.  She noted relationships right now are not healthy between employees and employers; she gets five workers, at least, coming into her office all the time loosing health care, loosing their jobs, and facing foreclosures, which is all intertwined; there is coercion and intimidation taking place at the workplace; and most of the time it comes from the employer.  She stated the Employee Free Choice Act would strengthen the penalties for employers who are doing this; workers are scared at their workplace; wages are stagnate, healthcare is pretty much non-existent, benefits are crumbling; union workers would earn 30 percent higher in wages than non-union, and are 63 percent more likely to receive healthcare; the Employee Free Choice Act would truly restore fairness and promote a level playing field; and workers need to have a real choice to form a union and bargain for a life that restores and gives back to the community.  She noted it was great to see so many Resolutions presented earlier with the community, as it truly shows the spirit of the community; but to see the proposed resolution that certainly counters to the others is quite troubling; and she urges the Board not to vote on the resolution as it is not serving American workers in Brevard County.

 

Fernando Rendon stated he is a business agent with the electrical workers, and a member of the building trades.  He stated he finds it ironic that the Board is talking about the Employee Free Choice Act and a call to question was brought fourth without hearing all the voices, similar with what goes on in union campaigns when management squashes employee wishes.  He stated in the first seventy years of the Nation Labors Relations Act, 42 cases of fraud or coercion by unions were documented; in 2007 alone there were 29,000 documented cases of intimidation by management; again, majority sign-up is in place right now, with the most recent case being Cingular Wireless in 2000 in which 17,000 workers decided to join a union, but Cingular Wireless has over 21,000 employees; and the resolution is false in saying that a person would be forced to join a union, as the Employee Free Choice Act does not say that.  He noted one of the organizations where the misinformation comes from is a firm called Berman and Company, which is a public relations and lobbyist firm headed by Richard Berman; stated he fronts several groups such as the Center for Consumer Freedom, whose clients include Phillip Morris, who paid this firm $3 million, but claims to represent consumers; and Berman and Company’s public relations campaigns include trying to discredit research linking obesity health problems with fast food.  He stated another front group that disseminates misinformation connected with anti-Employee Free Choice Act campaigns is the American Beverage Institute, which fights efforts to strengthen drunk driving laws and has publicly attempted to discredit Mothers Against Drunk Drivers (MADD) through a campaign add that was so reprehensible that they themselves took down their videos from their own website.  He stated the executive summary that the Board requested on the Employee Free Choice Act disputes much of what is in the resolution, and inquired how the Board can vote in favor of it; and stated he would like to urge the Board to vote against the Resolution.

 

Commissioner Bolin stated in light of the length of time, she would like to take a moment and say that she did jump out ahead of everyone else, and did not give the other Commissioners a chance to make a decision on whether they would like to put the item on hold in order to hear the Time Certain item. 

 

Commissioner Fisher stated he did not realize exactly what the Board was voting on, and that is why he asked for it to be pulled from the Agenda a few weeks ago; in the last couple  of  weeks he  has a better  understanding;  and it is not something he is going  to support.  He inquired if it is Commissioners Bolin’s intention to pull the item from the Agenda and not vote on it.  Commissioner Bolin replied that is not her intention; and her intention was just to put it on hold and come back to the issue today after the Time Certain Item.  Commissioner Fisher stated he thinks there are too many people to do that, and the Board should listen to the cards and make a decision.  Commissioner Anderson stated it is his understanding that currently there is not enough support in the United States Senate to move forward with this.  Commissioner Fisher stated it is something that does not affect the local level; and he has enough issues in dealing with Brevard County than worrying about the Federal level.  Commissioner Anderson stated the Board has litigation to settle on behalf of the taxpayers, which is the Time Certain Item.  Commissioner Bolin stated what she is hearing is Commissioner Anderson and Commissioner Fisher would like her to call for a vote on the resolution now.  Commissioner Infantini stated she is not sure the Board can call for a vote until all of the speakers have been heard; but the Board committed to a 10:00 a.m. Time Certain; and it can continue the resolution after the Time Certain.  Chairman Nelson stated if there is a vote on the motion then the Board needs to hear all the cards; and if there is a motion to withdraw, then that is a separate issue. 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to withdraw Item I.I., Resolution, Re:  Protect the American Worker.

 

 

Chairman Nelson advised Commissioner Bolin can re-Agenda the Item if she desires.  He stated this is a very complicated issue that is not in the Board’s world; the Board would typically dig into the law and study; and he is uncomfortable dealing with an issue that is not one that comes from force.  He stated the Board’s staff report does say that the role of County Commissioner should remain unaffected by this legislation as a public employer; it is not an issue that the Board deals with; it is not going to have an impact on the Board; he believes it this is with the elected officials that do have to vote who is the senators and representatives; and for that reason he will support the motion.

 

Chairman Nelson called for a vote on the motion.  Motion carried and ordered; Commissioners Bolin and Infantini voted nay.

 

 

The Board recessed at 10:13 a.m. and reconvened at 10:29 a.m.

 

 

Chairman Nelson stated he sent a procedure to the County Attorney and Mr. Roberts’ Attorney; and he would like to get the Commission’s blessing on the procedure as he believes it gives both sides the opportunity and appropriate time.  He read aloud the email, “To provide for the most productive discussion on tomorrow’s meeting on this issue, I will request the Board approve the following procedure.  The County Attorney will have up to 40 minutes to present information to the Board; Board members will be asked to hold their questions until the end of the presentation.  Mr. Roberts and his attorney will then have up to 40  minutes to provide  their information/rebuttal; again  Board members will be asked to hold their questions until the conclusion of the presentation.  The County Attorney will have an additional 10 minutes to respond to Mr. Roberts’ information if necessary; and Mr. Roberts will have additional 10 minutes to respond to the County Attorney if necessary.  Following the conclusion of Mr. Roberts’ presentation and questions by the Board, citizens who have filled out cards will be heard; speakers will have up to five minutes to comment on the issue.  Finally, the Board will discuss the issue with the Attorneys from both sides only participating when requested by the Board.  The Agenda Item before the Board is intended to provide direction to the County Attorney for the County’s response to the Court and is not a quasi judicial process; Attorneys will not be allowed to object during presentations as this would be disruptive; instead, the Attorneys will be allow to respond during their allotted times.  I am confident by following these procedures the Board will have the best opportunity to reach a decision in this matter; and cooperation of all parties is appreciated.” 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve the procedure.  Motion carried and ordered unanimously.

 

 

Attorney Rick Torpy, representing the Roberts’, inquired when it is time for the Board to ask questions, will each attorney have the opportunity to respond to the question; he has some concerns about that; and he wants to be sure that everyone is able to respond to questions of the Board.  Chairman Nelson responded when the issue arrives, the Board look at it at that point.

 

County Attorney Scott Knox stated the matter before the Board today involves a Court Order arising out of a motion to enforce a settlement agreement filing by Mr. Torpy on behalf of Courtney and Carol Roberts; the settlement agreement in question arose out of issuance of a Stop Work Order (SWO) by the County Building official in May 2003; the SWO prevented the Roberts from completing the construction of a home on a single- family lot where the Roberts already have an existing home; the Roberts filed suit for declaratory relief; and after an administrative appeal in March 2004, the County Commission acknowledged that the SWO, which had been in effect for about a year, should not have been issued.  He stated the Commission ultimately entered a settlement agreement in which it agreed to pay the Roberts’ cost to restore the condition of their home to its condition before the SWO was issued, together with Attorneys fees and the escalation cost for completing the home resulting from the one year delay in completing the home as long as the Roberts can provide verifiable evidence of the increase of such cost; and the estimated cost to make the Roberts whole as presented by the Roberts’ attorney and resided in the settlement agreement was $166,000.  He stated the County has already paid $337,000 in tax dollars out of the County reserve funds to the Roberts under that agreement; Assistant County Attorney Morris Richardson will explain when and why that $337,000 was paid by the County to the Roberts in a good faith attempt to fulfill the terms of the settlement agreement; but the Roberts now claim they are entitled to more than $337,000 paid to them by the County under the terms of the agreement; the County has offered to settle that lawsuit for an additional $100,000, but at this point has received no response from the Roberts or their lawyer; and instead, the Roberts have pursued a motion to enforce the settlement agreement.  He stated in September 2007 and in the Summer of 2008, over a  period  of four  days, a trial on issues raised by the plaintiff’s motion was held by Judge Dean Moxley; Mr. Torpy presented the Roberts’ case for additional money; and after the first hearing Mr. Torpy requested a continuance when the Court indicated that it would not rule without an expert witness testifying on escalation costs on behalf of the Roberts.  He stated when the trial resumed some months later, the Roberts completed their case, and the County began its case; the Court halted the preceding during the testimony of the first witness, which was him, and informed Mr. Torpy that the Roberts were required to present verifiable evidence of their escalation claim to the County as required by the agreement before the Court would hear anything further; the Court thereafter entered an order required the Roberts to submit verifiable evidence of their cost escalation claim to the County; and also ordered the County Commission to accept or reject the Roberts claim.  He stated it is the cost escalation portion of the Roberts’ claim and only that part of the claim that is before the Board today; it is the obligation of the Board to either deny or accept the Roberts claim in order to satisfy the Court Order; in essence, the Court indentified two ways in which the Roberts could prove their claim; ruling one was that they could present verifiable evidence in the form of invoices, estimates, and billings of the cost before the SWO was issued; and the cost for that same scope of work after the SWO was lifted.  He advised the second way in which the claim could be proven is the presentation of a credible construction budget, which could be compared to historical actual cost of the same scope of work to determine the increase.  He stated Mr. Roberts appeared before the Board on January 13, 2009 and presented a box of documents, and asserted the documents supported his claim; it is the obligation of the Roberts and Mr. Tropy to prove their claim before the Court and the Board of County Commissioners; it is not the obligation of the County Attorney’s Office to make that proof for them; however, it is the obligation of the County Attorney’s Office to advise the Board when being asked to expend tax dollars for a private purpose, which would constitute malfeasance on the part of the Board if that were to happen; and in this case, reimbursing the Roberts for the cost of constructing their private residence, if the reimbursed costs exceeded the amounts established by verifiable evidence in the terms of the settlement agreement, would constitute payment of tax dollars for a private purpose in violation of the Florida Constitution; and it is the role of the County Attorney’s Office to advise the Board when it is thought that those circumstances exists.  He stated the County Attorney’s Office went through the 2,293 pages of documents presented by Mr. Roberts on January 13, 2009; the County Attorney’s Office reviewed the documents with the assistance of Bob Robinson, an expert in construction costs; and the County Attorney’s Office’s recommendation is that the Roberts claim be denied as to any amount above and beyond the $337,000 already paid by the County to the Roberts.  

 

Morris Richardson, Assistant County Attorney, stated Attorney Knox already explained what is before the Board; staff has been though extensive litigation on the issue; the Roberts and Mr. Torpy have presented their side of the case; at the conclusion of their side of the case Judge Moxley determined there was not sufficient evidence for him to award escalation costs to the Roberts at that point; Judge Moxley therefore entered an order in October 2008, requiring the Roberts and their attorney to resubmit their claim to the County, this time along with the verifiable evidence that the Judge found was lacking in previous submissions and a trial; and then once that evidence had been received the County was to review it, present it to the Board, and the Board is to make a final determination.  He  stated staff is asking the  Board  deny the request  for  approximately $600,000 in additional escalation costs because there was no claim included with the recent document submission; over four days in trial there were many different numbers presented, and he has no idea as of today what the actual escalation claim is; and hopefully that will be heard when the Roberts make their case, but it was estimated at $600,000 at trial.  He noted staff has also drafted some findings and a resolution it would like the Board to adopt at the conclusion of the presentation today.  He stated a brief history of the case might be helpful; the PowerPoint presentation shows Mr. Roberts’ 2002 building permit application; at that time Mr. Roberts had a residence in Snug Harbor, in the unincorporated area of Cocoa Beach; Mr. Roberts applied to build two things on the application; one was to enlarge the master bedroom, and the other to build an auxiliary building for recreation; and what is relevant to the current claim is the size of the structure, which is 1,150 square feet of new air conditioned living area, and the estimated construction cost of $300,000.  He stated next is the 2002 building permit that was issued by the County; it is for an addition with a construction cost of $300,000, and a building size of 1,150 square feet under air; and subsequently, the Roberts would submit a revised set of building plans with 1,581 square feet under air. 

 

Mr. Richardson stated on March 25, 2003 the County Building Official ordered a Stop Work Order (SWO) in response to complaints from Mr. Roberts’ neighbors in Snug Harbor that the building was not going according to the permit; specifically, they were concerned that he was building a large single-family residence as opposed to the what they though should have been an addition; that is when the SWO was issued; and in response to that, the Roberts and Mr. Torpy filed a Declaratory Judgment Action in the Circuit Court, a Vested Rights Action, and an Administrative Appeal before the Board of County Commissioners.  He stated on March 2, 2004 the County Commission heard the Vested Rights and Administrative Appeal Claims; at that meeting, the County Commission agreed that the SWO should be lifted to allow completion of the residence pursuant to a set of plans that was existing at the time; again, that was 1,581 square feet at that time; and the County Commission also agreed to pay certain losses that had been itemized in writing by Mr. Roberts prior to the hearing, and verbalized by Mr. Torpy at the hearing.  He stated the County did what it agreed to do by lifting the SWO, there was an excerpt from a March 5, 2004 letter from the Building Official at the time stating the relevant information there is that the posted SWO placard may be removed and construction may continue; and construction did proceed after that point.  He stated as agreed, ultimately the County allowed the Roberts to finish the home as a single-family residence; and a certificate of occupancy was issued several years ago; but the issue before the Commission today is the cost resulting from the SWO, specifically escalation costs.  He advised he has a document prepared by Mr. Roberts and presented by Mr. Torpy for the March 2, 2004 hearing at which the Board agreed to settle; the total costs stated by Mr. Roberts is in excess of $166,000; they include four categories including interest on the construction loan that accrued during the time the SWO was in effect, restoring the home in the condition it was in before the SWO was placed, attorneys fees, and costs related to the litigation proceeding to get the SWO lifted.  He stated he will play a portion of the presentation of the March 2, 2004 meeting, in which Mr. Torpy states, “Right now, their total damage, if you allow them to finish the structure, stands at approximately $166,000 to get them back to where they were when the Stop Work Order was issued.”  Mr. Richardson stated the County lived up to its agreement and paid all the costs claimed by Mr. Roberts and Mr. Torpy at the March 2, 2004 meeting; he has taken Mr. Roberts’ document and red-lined it, indicating the actual amounts paid by the County for those itemized items; for construction loan interest at the time of the settlement, in which the hearing was March 2, the settlement agreement was not signed until a few weeks later, and another payment accrued, so the County ultimately paid $12,000 instead of the $10,800 itemized at that hearing; the estimate for restoration was a very low estimate provided by Mr. Roberts and Mr. Torpy at the meeting; ultimately, they selected a contractor to restore the house, and bring it up to dry-in stage; the cost of that was just under $95,000; and the County paid that immediately upon presentation of the contract with the contractor. 

 

Mr. Richardson advised the attorney’s fees and costs had been estimated to the Board at just under $95,000 at the hearing; the County actually paid $138,000 based on billings received from Mr. Torpy and Mr. Scott Roberts for a total of payments for those items of $245,000.  He stated that leaves the Board with one more item of compensation, which is escalation; nobody knew what the escalation  was going to be at the time, so it could not be itemized at the hearing; but the settlement stipulation clearly calls for payment of cost increases in material and labor that directly resulted from the delay caused by the SWO; and an excerpt from paragraph 10 of the settlement agreement states the Roberts agreed to provide the County with verifiable cost increases upon receipt of that evidence and the County agreed to present the information to the Commission to seek approval of the expenses.  He stated all the parties knew how this was going to work; stated he asked Mr. Roberts at deposition his understanding of how the settlement agreement worked in regard to escalation; and Mr. Roberts answer was, “What I was supposed to do was get re-bids on those things I already had bids for, and in May the County would compensate for the difference, and I did that.”; and in fact, he did several times.  He stated Mr. Roberts had a proposal, interestingly, on the same day of the SWO, which was March 25, 2003, for roofing in the amount of $16,000; after the SWO was lifted he received another proposal for the same roofing in the amount of $19,250; and upon presentation of those before and after, the County promptly paid the difference.  He presented a chart showing the three times when that happened; during 2004 on three occasions Mr. Roberts submitted before and after third-party proposals or invoices, demonstrating total cost increases of just under $10,000, or 27 percent escalation he was experiencing as a result of the SWO; and the County paid all of those.  He advised when combining the escalation payments along with the payments for interest, the restoration contract, and attorneys’ fees, the total paid by the County through 2004 was just slightly in excess of $255,000. 

 

Mr. Richardson stated the County did not hear from Mr. Roberts for almost two full years, and it was the County’s belief that the settlement stipulation had been fully performed; all of the costs claimed at the hearing had been paid, no further escalation submittals had been made; in October 2006 the County received this new claim, the first claim in almost two years; and it was a demand in excess of $3 million.  He stated most of the Commissioners have probably heard Mr. Roberts say on the radio or on Television, or in letters to the individual Commissioners that the claim could have all been resolved for $300,000; and it is because that County has dragged this matter out that it is now escalated into the millions.  He stated the claim was clearly in excess of $3 million when the County received it; the County Attorneys Office reviewed the claim that reviewed the  computerized  spread  sheets  attached and there was no evidence  in  the form of invoices or proposals like were received previously, just computerized spreadsheets generated by Mr. Roberts; and staff provided a memorandum to the Board advising that several of the claims, totaling approximately $2.5 million, including things like loss of lifetime, loss of potential earnings, and things like that, simply could not be paid under the settlement agreement and law; however, staff advised some portion of the claim might be paid if it could be supported by verifiable proof, by evidence of before and after difference.  He stated there were some discussions in which it appeared that Mr. Roberts was not going to be able to provide proof of the before portion of that equation; the County Attorney’s Office recommended the County retain a construction cost expert to estimate and evaluate the difference between the cost of the structure and the settlement plans, 1,581 square feet versus the cost of building that same structure after the SWO was lifted; and that is where the size of the structure and the scope of the work becomes important.  He noted the next PowerPoint slide an excerpt from the plans that were in place at the time of settlement stipulation, which were plans that were specifically incorporated by reference in the settlement agreement; and it is 1,581 square feet under air, a very large structure with a lot of area not under air; but the under air portion at that time was 1,581 square feet, with most of the second floor being described as attic space not under air.  He stated the as-built plans show 2,813 square feet under air; all of the second floor attic not under air has been converted to living area; there is a lot of additional work scope included in the new home that was not in the previous one; there was the cutting of roof truss to make head room on the second floor for the expansion, new load-bearing walls, columns and footers, new wall partitions, two and half second floor bathrooms, three new bedrooms, a kitchenette area with cabinetry and counters, additional windows, additional interior doors, laminated beams, additional HVAC, and a significantly expanded kitchen including a kitchen island; there are also places in the home that were never indicated on the original plans including a home office theater with custom cabinetry and counters; and it was clear from an initial evaluation that the house had changed from the settlement plans, both in size and in the level of finishes.  He stated the Board, recognizing this was not a simple matter math problem, agreed to hire a third-party; and on the morning of November 14, when this was set for hearing, Mr. Torpy called Attorney Knox and wanted the Item pulled from the Agenda, as he would get Attorney Knox new information next week; it was about a month later the information came in; and Mr. Torpy did not object to the recommendation that the County a hire a third party to evaluate the claim.  He stated on December 11, Mr. Torpy submitted a revised demand, at that point it was listing construction costs of approximately $675,000; it had a lost income from diverted assets claim of close to $300,000, including a claim for projected ad valorem tax impact, which says, “To be determined”; staff knew from the prior claim that they had previously valued that at $750,000; and totaled that up, that claim was approximately $1.75 million.  He stated the County Attorney’s Office immediately submitted the new information including a new computer spreadsheet, but no evidence, to a claims expert, the claim expert agreed to evaluate the claim and review it; and within ten days of that submission the Board had officially retained that construction cost expert.  He noted he recently spoke to the Clerk of Courts, Scott Ellis, recently who likened the case to an automobile accident in which one car hits another and it is a fender bender in which the driver of the car says there is no damage, but the driver of the other car says he or she is totaled out and needs $20,000; and the Mr. Ellis said a claims adjuster would look at the car and put a price on it.  Mr. Richardson stated he told the Mr. Ellis that the County did that; and Mr. Ellis inquired why it had even gone to Court.  He stated in January 2007, before the independent construction expert could finalize the evaluation of the claim, Mr. Torpy brought this back into Court by filing renewed litigation in the form of a Motion to Enforce Settlement Agreement; there is a conception that the County dragged this into Court; and staff was working to resolve it outside of Court and was brought forcefully back into Court by Mr. Torpy.  He stated staff proceeded in good faith with what the County Commission had agreed to and had the third party evaluate the claim, but he had some major problems in doing so; he requested additional information in the form of backup documentation, and original specifications; and the third party expert stated in 2007 that the unsubstantiated cost that the Roberts had provided consistently appeared to be for total cost to complete the work, rather than for cost impacts due to the delays caused by the SWO.  He stated staff was getting spreadsheets that set forth the entire amount of putting an item in place, not the difference between before and after; it was also noted there was no specific set of specifications or level of finishes that would allow him to determine exactly what was supposed to go into the project, as opposed to what ultimately went into it; the expert concluded his initial report by recommending by that the claim was worth between $12,000 to $52,000; and the reason for the spread is that he based his first two opinions on very different computer spreadsheets received from Mr. Roberts, depending on which spreadsheet assumed to be accurate, the claim would vary between $52,000 to $36,000. 

 

Mr. Richardson stated recognizing that there was a difference there, and some cause for concern about the accuracy of the spreadsheets, especially in light of lack the of evidence, Mr. Robinson did another estimate, which was based on the Roberts’ claimed construction budget at that time; the Roberts represented their construction budget as $346,450; and using those figures along with amounts they spent before the SWO and the remaining work, he arrived at just over $12,000 in escalation.  He stated Mr. Roberts and Mr. Torpy objected mightily to that opinion when provided to them, and asked that it not be brought to the Board; and Mr. Roberts and Mr. Torpy said they would now provide the information that was requested.  He stated in April 2007 staff received a new submittal from Mr. Torpy; instead of providing project specifications, bids receipts, and the other things requested by the expert to do a full quantitative take off, they provided yet another claim letter, and a new computer spreadsheet, but no backup; at one point in the letter Mr. Torpy stated the escalation portion of the claim was $489,000; however, the expert determined that was a total cost claim, which was 100 percent to complete the structure, not the difference before and after; and the expert’s request for more information after that were refused by Mr. Roberts and Mr. Torpy.  He stated there were several conference calls and letters from the expert to Mr. Roberts; and an excerpt from an email response from Mr. Roberts to the expert states that the obligation to provide verifiable escalation costs was met just by providing his spreadsheet with no backup, and he went on to tell the expert that in the interest of cooperating, if he makes a number of reasonable specific requests for contested items, he will give him a portion of the receipts and he can go out on his own and make inquiries from places like Lowes and Home Depot and figure it out himself.  He stated ultimately, what the expert did was make a few assumptions; he looked at the spreadsheet and assumed two things; first, he assumed all the entries in the spreadsheet were accurate as before; and he also assumed  Mr. Roberts  had  faithfully  removed all of the  additional work scope that  had changed between the settlement plans and the new plans.  He stated in light of those assumptions the expert determined the escalation could be calculated at $82,242; the County Attorney’s Office brought that to the Board in May 2007; staff also brought Mr. Torpy’s proposal, whose last claim included his lowest offer yet; and they had agreed at that point they would settle for $900,000.  He stated the Board elected to pay immediately the $82,242 determined by the expert, in good faith, for the total escalation cost for the structure; the Board also authorized issuance of Offer of Judgment to the Roberts for an additional amount $100,000; there was never a response to that Offer of Judgment, it is a statutory vehicle for settlement; it has to be responded within 30 days or it goes away; and there was no response within the 30-day time period or thereafter.  He stated when adding in the final $82,000 payment in 2007, the Board will see that total County payments to date exceed $335,000; and all of those payments, every penny, ultimately came from ad valorem taxes, from the County’s internal reserves; and there is no third party insurance or other player funding the cost. 

 

Mr. Richardson stated they took the check for $82,000, cashed it, and proceeded right back to the Court House and the County ended up in trial in 2007; after hearing the open statements and being concerned that there was not going to be any evidence put on regarding the before portion of cost; the Judge said the incremental escalation cost requires expert testimony, and if there is not expert testimony he would not grant it; and Mr. Torpy responded, “In light of that pronouncement we would ask to continue this hearing so we can retain an expert for that purpose.”  He stated subsequently, they retained an expert, Bob Lichtenberg; stated Mr. Lichtenberg was directed by Mr. Torpy to perform retrospective construction cost appraisals; but Mr. Lichtenberg is not a construction expert, he is an appraiser; he provided two appraisals, before and after the SWO, and actually provided a third one in the middle, but the outside two are being used; the first one from the month of the SWO indicated the construction cost for the home that is in the settlement plans, not the home the Mr. Roberts actually built, was $265,000; to build that same home from the ground up in October 2006, which was right before the Certificate of Occupancy was issued, would have cost $346,000; and that is an $81,000 spread.  He stated that is $1,000 less than the Valent report recommended and the County paid, and over $10,000 less than the total amount that the County Commission has paid for escalation; so there is an expert report from the Roberts own expert suggesting the County had already overpaid; it may come as no surprise that Mr. Torpy objected to those reports in Court; and Mr. Torpy kept his own expert reports out of the following trial.  He stated the County got to trial in 2008; the Board should remember the County has an expert, Mr. Valent, the independent evaluator estimating escalation at $82,000, and Mr. Lichtenberg estimated $81,00;0 staff had to hire a new construction expert for trial because Mr. Torpy objected to the use of Mr. Valent as an expert witness; and he estimated escalation at $25,000, a much lower figure, but that included things that staff learned in litigation that staff did not know when Mr. Valent recommended the $82,000 payment.  He stated the County has already paid $92,000, which is more than any expert, even the Roberts own expert, recommends; the Judge asked Mr. Torpy how much the amount of the claim was for just the construction; with Mr. Torpy responding, “Probably $600,000 for just that portion.”   He stated Judge Moxley went on to say the claim made no sense; Mr. Torpy stated the fair question is did he need to spend it; and the Court says yes because he has a $250,000 house that is costing  how  much  to  build;  Mr. Torpy  responded  it is  basically $1 million;  the  Court stated it makes no sense, and Mr. Torpy, Mr. Leichtenberg there expert appraiser said that too, that it makes no sense.  He stated there was a evidentiary problem in that the Roberts stated they did not have anymore bids, estimates or proposals from before the SWO that would match up with the scope of work after; so they did not want to use bids and estimates like they did for the roofing and garage door payment the County had made previously, but they now wanted to use a construction budget that Mr. Roberts had prepared himself; essentially, they wanted to take their completion cost, the actual amount that they spent finishing the structure after the SWO was lifted, subtract the construction budget that remained at the time of the SWO; and that was suppose to equal escalation.  He stated that sounds like a good math problem, but it needs to be remembered staff has an apples to oranges problem with the building, and other problems; the first variable in that equation is completion cost; over just a few days of trial that changed by over $160,000 in the Roberts own claim; on June 28, just a few days before trial he had been trying and trying to get this new spreadsheet that he had been promised; and it came in indicating construction costs of $685,945 to complete the structure after the SWO was  lifted. 

 

Mr. Richardson noted on the morning of July 1^st, the second day of the trial, he received a new spreadsheet from Mr. Torpy that reduced that amount to $527,000; stated he asked for a red-lined strike-through version, but was essentially told good luck; finally on July 3^rd a new spreadsheet comes out and it was reflected in Mr. Roberts testimony; and at that point completion cost were claimed at $594,000.  He stated the Board can see it is no longer a simple math problem, the numbers kept changing over the course of the week.  He stated the other variable is the remaining construction budget that was in place at the time of the SWO; stated he asked Mr. Roberts on the third day of trial if at that point he had $42,731.40 remaining in the budget; and Mr. Roberts responded that was correct; and that is consistent with the documents he provided prior to trial, which were his own spreadsheets, not evidence.  He stated the next day they go back to trial and that is changing suddenly; Mr. Torpy asked Mr. Roberts how much money remained in his budget for the home at the time of the SWO; and Mr. Roberts responded $141,828.  He noted the amount changed by over $99,000 between trial day three and trial day four; stated Mr. Roberts tried to explain this almost $100,000 discrepancy by claiming he had accidently co-mingled expenses spent on expanding the existing home next door with cost of construction for the new home; and the Board can see how this adds a very big problem to what might otherwise be a simple math problem.  He stated he would like to go back to the construction budget theory, which is really the heart of where the Board is today, because there are still no ‘befores’ in the form third party evidence; they are still asking the Board to proceed on a construction budget of $250,000, which he has never seen; there were multiple budgets introduced at trial, none of which were in the amount that they claim the budget was for; and staff has looked at what the one that comes the closest, but frankly, there is no $250,550 construction budget that anyone on this side of the isle has ever seen.  He stated Mr. Torpy admitted to the Court if they are going to use theory instead evidence, the first question the Court is going to have to ask is, is that budget a creditable document to use as a starting point; stated he asked Mr. Roberts at trial if his $250,000 budget is inaccurate, then there is absolutely no way to figure out the difference between what he actually spent, and what he would have spent but for the SWO; Mr. Roberts responded, “No, if it is inaccurate, then no.”  He stated he asked Mr. Roberts if he was relying on that $250,000 budget to establish the claim; and Mr. Roberts responded, “Yes, absolutely, what other basis is there.”  Mr. Richardson stated finally, in addition to being credible and accurate, the budget must be valid when compared with actual historic cost; and this is an excerpt of Judge Moxley’s October order, “One of the issues is whether the projected cost before March 25, 2003 may be shown by Courtney Roberts’ budget for construction of the home.  The Court agrees the answer to that is that yes, it may be a basis because the projected cost in the budget may be compared with actual historic cost accruing before March 25.”  He stated the Judge tasked the County with making that comparison; staff has done that; and he will let the construction expert, Bob Robinson, address that in a moment. 

 

Mr. Richardson stated credibility and accuracy of this construction budget is the key now to this escalation claim, whatever the escalation claim is at this point; here is Mr. Roberts’ sworn testimony at trial, and it was very consist throughout trial; he swore to this a number of times; Mr. Torpy asked Mr. Roberts this at trial, “I want to be clear, you have testified numerous times you had a budget you carefully put together for how much it was going to cost you to build this home, did you not?”; with Mr. Roberts responding, “Yes, $250,550.”  He inquired if it was really $250,000; and Mr. Torpy stated at the County Commission meeting in March 2004, before escalation and this construction budget theory was even on the table, “He has spent over a $250,000 on construction of a home with a $350,000 budget”; and stated that raises some concerns that at one point they are claiming the budget is $350,000 at another they are claiming it is $250,000.  He stated another concern is that in December 2006 staff received a written claim from Mr. Roberts, accompanied by spreadsheets, saying his base line cost projection, his original construction budget, was $346,450, not $250,000; stated Mr. Roberts actually went at length explaining why he thought that budget was reasonable and valid for the period when it was determined, which raises the question is the $250,000 not reasonable and valid.  He stated Mr. Roberts’ acknowledged in his sworn deposition testimony in July 2007, the original construction budget, the baseline estimate, was $346,450, not $250,000; the budget theory simply does not support the claim in the absence of verifiable third party evidence about cost before the SWO; and staff cannot rely on the accuracy and credibility of this construction budget, which it has not seen. 

 

Mr. Richardson stated he has demonstrated credibility issues by showing videos of Mr. Torpy and excerpts from contrary testimony; but the County’s expert, Mr. Robinson, is really going to take apart that supposed budget, and show the Board why is completely inaccurate and is inadequate when compared with actual historic costs for building the structure that Mr. Roberts actually built.  He stated he noticed that Mr. Torpy toted a lot of boxes of documents into the meeting today; he is very familiar with those boxes and have seen them a number of times before; and they came into Court everyday over the course of the four day trial.  He stated many times Mr. Torpy said they fulfilled their obligation because the County insisted on seeing the documents in discovery; not when staff asked for them through the expert or asked nicely for them to verify the claim; but only when he demanded them as is our right in litigation; and they put him in a room with a whole lot of bankers boxes and he made a lot of copies. 

 

Mr. Richardson stated Mr. Torpy said they had met their obligation by providing the boxes;  but  the  Judge  would  strongly  disagree; he  has  excerpted  a lot  of  transcript testimony between Mr. Torpy and the Court going back and forth on this.  He stated the Judge state, “You have represented to me that Mr. Roberts has this data, the data needed to prove the claim, in those banker boxes.”  Mr. Torpy responded, “Yes sir.”  The Court stated, “Alright, and you believe that just making them available satisfies this verifiable requirement, right?”  Mr. Torpy responded, “A little more than that, but so far.”  The Court stated, “That is it, okay, at some point I’m going to say ‘do it’, if it is there do it.”  He stated the Judge went on to say, “Verifiable means not just the person who is asking for money makes the statement, I need ‘X’, referring to invoices and/or estimates.”  Mr. Torpy responded, “Uh-huh.”  The Court replied, “If those are in that bankers box, why can’t we do that.”  He stated Mr. Torpy argued at that point stating, “I’m saying we did it.” And the Judge emphatically stated, “No, no you didn’t. Scott Knox has to go to the Commission, he has to have some basis for saying other than a third party statement, that I spent all of this stuff.  Number one, he’s looking for the delta.  He’s got to explain how he arrives at the delta.  Mr. Torpy stated, “I understand.”  The Court stated, “Does  not give a delta; there is no way he can justify that to the County Commission.”  Mr. Torpy responded, “I agree.”  Judge Moxley stated, “Well, the way this works, guys, when you submit a claim you have to justify your claim.  That’s the way it is.  He who wants something has to justify it, right?  Verifiable costs.  All right.  And you know, the person that’s going to pay the claimant, in this particular case, the County Attorney, advising the Board, the Board’s going to hold him to a strict standard to justify that which is sought. 

 

Mr. Richardson stated Mr. Torpy again argued, “Here are the boxes, your Honor its all right here, but he would not take out the evidence.”  The Judge said no, no, no, you make the claim with the documentation, take the evidence out of the boxes, attach it your claim and show the difference; so that they, the County, can go to the Board and say they approve this here is the reason why.”  Mr. Torpy responded, “Right.”  He stated on January 13, 2009, Mr. Roberts came to the Board, not with all the boxes that are piled up here today, but with one particular box, which was the original; and one of the first things staff did was photograph it, and then date stamp it and number it; and that is how he knows there are 2,293 pages of documents in the box.  He state he went through the box, the Clerk of Courts went through the box, the County’s construction expert went through the box, and looked at every document in there; the box did not include any written claims stating the escalation, which again, is a figure staff does not know even today; no effort was made to present the documents in relation to any claim, or even to establish the escalation, the difference before and after; the box contained no new evidence; and staff looked at every document very closely from before the SWO, especially looking for bids or estimates or proposals.  He stated there was only one new example of same scope before and after that was found, which was for stucco work, but interestingly, the amount was the same on the before and after, $26,882; and so there no escalation for that item according to the documents.  He stated the document submission included some other things though; it included BMW bills, receipts for computer software, internet bills, purchases at retail stores such as Baby Gap, Sprint PCS bills, credit card statements; those are purely personal expenses having nothing to do with the construction of the home, and no relation to any claim; and there was over $40,000 worth of checks made payable to cash with no corresponding invoice or receipt.  He presented to the Board some examples of the many checks; there are a lot of them because they are mostly in small increments; staff is lucky that some of them have a first name, some of them do not even have that in the memo slip, they are simply made out to cash; he has been through this with Mr. Roberts on deposition before, he is unable to explain what work the checks paid for precisely on any given day; and there are no invoices or receipts or signed work orders from anyone verifying what the checks are used for.  He noted the Board received a letter from Mr. Roberts in January 2009; in the letter, Mr. Roberts attacks the County Attorney; he does not state an escalation claim, but does state at the bottom, “In 2005, the amount due us was approximately $300,000.  However, due to the machinations of the County Attorney attempting to dishonor our contract, that sum has increased dramatically, and is now, conservatively, in excess of $2.4 million.”  He stated after staff provided the memorandum that the Board has received before the March 24^th hearing, Mr. Torpy appeared before the Board and asked for time to come back and he sent the Board a letter on April 7^th; the letter did not include the amount of the escalation claim, or any new evidence, but it included a lot of new argument; it said the original submission was $900,000 and now the claim is in excess of $4 million; and between January and April the claim went from $2.4 million to now in excess of $4 million.   

 

Chairman Nelson advised Mr. Richardson’s 40 minutes are up; and inquired how the Board wanted to handle the rest of Mr. Richardson’s presentation.  Commissioner Fisher stated he would like Mr. Richardson to finish his presentation; and if Mr. Torpy needs more than 40 minutes, the Board will allow him also.  Chairman Nelson stated he will calculate the minutes so that both presenters will have an equal amount of time. 

 

Rick Torpy, Attorney for Mr. and Mrs. Roberts, noted in respect to Chairman Nelson’s email yesterday that the presentations would be 40 minutes, he did not bring in people to testify; and he limited himself to a 40-minute presentation.  He stated he is not sure how much additional time Mr. Richardson needs, but with all due respect, he was told to limit his presentation to 40 minutes and he made his presentation 40 minutes; and to allow Mr. Richardson to go on as long as he needs to and offer additional evidence is unfair.  Chairman Nelson inquired how much time Mr. Richardson needs for the expert.  Mr. Richardson replied he has only one more slide for the Board; and Mr. Robinson will need approximately 20 minutes.  Commissioner Anderson stated after Mr. Richardson finishes with his last slide, his suggestion would be to move on to Mr. Torpy.  Chairman Nelson stated finishing the last slide would be fair; during the rebuttal, if Mr. Richardson would like to have some specific questions for his witness, he will have 10 minutes at that point.  Mr. Richardson stated that is fine.

     

Mr. Richardson stated in conclusion, at the March 24^th meeting the County Commission agreed to continue at Mr. Torpy’s request to this meeting; Commissioner Infantini specifically asked for evidence supporting the escalation claim; the Board received a binder from Mr. Torpy, but there is no evidence, receipts, invoices, bids, proposals, estimates, specifications, or things like that; it is an argument about what the County has done wrong and how the County should prove the claim; and there is not even a number for the escalation claim, just a big $4 million number.  He stated after receiving the binder, Commissioner Fisher specifically stated he was going to consider the issue with an open mind, but he needed evidence; and stated Commissioner Fisher requested the County Attorney’s Office write a letter to Mr. Torpy asking again for the amount of the escalation claim, a copy of the $250,000 budget, and the evidence that is going to be relied on; and the Commissioners received a letter back from Mr. Torpy refusing that request.

 

Chairman Nelson stated he will add three minutes to Mr. Torpy’s time for his presentation.

 

Rick Torpy, Attorney for Mr. and Mrs. Roberts, stated what he is going to attempt to do today is not give the Board opinion, but he is going to read what Judge Moxley has ordered; in the transcripts there were hundreds of conversations between Judge Moxley, himself, Mr. Richardson and Attorney Knox about what would sustain Mr. and Mrs. Roberts’ case and what the standard of review was; and it was a very complicated issue.  He stated what Mr. Richardson does very effectively is highlight a few comments that were made, but most notably he has not read to the Board the Court orders where the Judge ultimately concluded on issues; in the letter he sent to the Board, what Mr. Richardson thinks, what Attorney Knox thinks, what he thinks, and what the Board thinks from a standpoint of the legal posture of this case is irrelevant; it is what Judge Moxley thinks that ultimately will resolve this matter if the parties cannot come to some accord here today or sometime in the future; and the Judge’s rulings are what everyone has to abide by.  He stated none of the Commissioners were on the Board when all this started; Mr. Roberts was involved in building five of his own homes, including the one in question; some were built with contractors; some he supervised; and on the last home he was owner-builder. 

 

Mr. Torpy stated Mr. and Mrs. Roberts decided they wanted to build their home in 1992; at that point in time they were negotiating with a gentleman named George Bryan to purchase property in Snug Harbor; Mr. Bryan’s lot was quite large and riverfront; the Roberts did not buy it from him until 1992; but they began negotiations in 1987; when they purchased it, they took it in two deeds for the northern and southern pieces; and the reason for that was because it was their intention at that time to build a new home on the undeveloped southern portion ultimately, and sell the home that they purchased from Mr. Bryan, and again have their retirement dream.  He stated in 1992 when the Roberts bought the property there became an issue of what the setback from the river was for that new home; in September 1988 the Brevard County Commission adopted the Comprehensive Plan and Land Development Component; the Comprehensive Plan said lots that existed prior to September 1988 could enjoy a 25-foot setback from the river; but lots created after 1988 had to abide by a 50-foot setback.  He noted the Roberts’ southern lot was very narrow; the first thing Mr. Roberts did in 1992 was attempt to get a variance from the front yard setback because he was given the opinion by Lisa Barr, who was then the director of the department of Brevard County determining the setback, that the setback was 50 feet, claiming since Mr. Roberts had purchased the property in 1992 and received two deeds, that is when the lots were created; and it was a very logical decision by Ms. Barr.  He stated as time went on Mr. Roberts insisted the lots were created in 1986 by Mr. Bryan; Ms. Barr sent a letter to Mr. Bryan asking him the circumstances regarding the creation of the two lots; Mr. Bryan sent back a letter to Ms. Barr including a survey; in the letter, Mr. Bryan said he recorded a survey splitting the lots in 1986; but interestingly, Mr. Roberts does not have that survey because it was one of the documents that was missing from the public records when he attempted to prove Mr. Roberts  case in  2003.   He stated in 1992 Ms. Barr reversed herself based on Mr. Bryan’s letter and issued a letter to Mr. and Mrs. Roberts stating their property was subject to a 25-foot setback; and happy with that decision, Mr. Roberts went away and it was ten years later before he decided to build his new home; but that proved to be a very big problem.  He stated the Board has heard Mr. Richardson state it is a 1,500 square-foot home, but it is not; it has always been a 4,000 square-foot home; and the Board can see it its packages that original plans submitted to Brevard County in 2002 were for a 4,000 square-foot home and over half the second story was built-out.  He stated the Board has been repeatedly told that Mr. Roberts has added living area to the home, but that is not true; all anyone has to do is take a look at the house plans submitted the County in 2002; the plans clearly show a built-out second floor on two-thirds of the house; the attic the County Attorney’s Office keeps referring to, in the permitted plans had six, double French doors that led out to a balcony, twenty six outlets, its own power box, a fireplace, an opening for an elevator, openings in load bearing walls to accommodate the hallway; and all of those things were in the plans that were permitted by Brevard County. 

 

Mr. Torpy stated in 2002 Mr. Roberts’ daughter was going to get married, and he wanted her to get married in his new home, but the County again raised the 25-foot setback issue; even though it had been resolved in 1992, the same individual who was working for the County in 1992, brought the issue back up again in 2002; Mr. Roberts produced the letter from Ms. Barr from 1992; and the issue kept existing.  He stated there has been a lot of talk about the breezeway; but County staff recommended that to Mr. Roberts because the Natural Resources Department at that time insisted that his setback was 50 feet; and since the house was designed on only a 25-foot setback the cure was that if he connected it to the existing structure then he should be able to be grandfathered-in because it was now an addition, and that is how he would be able to build the house.  He stated that was consistent with what Brevard County was doing in 2002; he has sought permits for many individuals that had large lots and wanted to build mother-in-law suites, but the County has a prohibition against having two single-family residences on a single-family zoned property; the consistent County solution at that point in time was to connect the two structures with some form of covered walkway; later, the individuals were informed if they tore it down it did not matter; but the problem was the County had no right to require Mr. Roberts to do that; and Mr. Roberts’ setback as established in 1992 was 25 feet, and it was a non-issue.  He stated in 1992, the day Mr. Roberts was to go for an appeal in front of the Board on Ms. Barr’s opinion that he was subject to a 50-foot setback, Ms. Barr had contacted him the day before and told him she was changing her opinion based on the strength of the George Bryan letter, and evidence that Mr. Bryan provided; and on the morning of the Board meeting, Mr. Roberts went to Ms. Barr’s office and got the revised letter; and he was advised that the appeal was now a moot point, and it would be pulled from the Agenda.  He stated the item was not pulled from the Agenda; the minutes reflect the Chairman was very upset that Mr. Roberts did not appear at the meeting; it was a fairly short discussion; no one showed up at the meeting, including Ms. Barr, because it was a moot point, but no one bothered to inform the Board; and in the absence of Mr. Roberts, the Board took a motion uphold Ms. Barr’s earlier letter; but the Board was not aware she changed her own mind.  He stated in 2003 when the issue came up again, County staff relied on the minutes of that meeting stating they did not care what Ms. Barr did with her second letter because she was wrong; the Board upheld her first letter, stating the problem with the position taken by the County was they were simply wrong; the position was that it did not matter what Ms. Barr’s opinion was; and if the property was subdivided after 1988 it simply was subject to a 50-foot setback.  He stated the County staff in 2003 applied the law of 2003 for what became a legal lot split; the staff said it was sorry if Mr. Bryan filed some kind of a survey with the Clerk’s Office in 1986, but that does not qualify for a lot split; and based on that, the County said Ms. Barr was wrong and continued with the 50-foot setback.  He stated it took him taking depositions of several County employees, one of them being Assistant County Manager Mel Scott who wrote that opinion; he knows in 2003 there were a complex set of rules for subdividing property; he asked Mr. Scott what the rules were in 1986 when Mr. Bryan recorded a survey; and Mr. Scott said he did not know.  He stated Mr. Scott gave an opinion that said Ms. Barr’s letter in 1992 did not count because she was wrong because there was not a proper lot split; stated during the deposition Mr. Scott took a recess and called back to his office to have it researched; and under oath Mr. Scott swore that in 1986 a person could record something on a napkin and it qualified as a lot split.  

 

Mr. Torpy stated in 2003 the County again applied the wrong law to say that Mr. Roberts’ property was not properly split; as the year went on, Mr. Roberts eventually took his building permit with the breezeway because his back was against the wall; he wanted to build his house; and that was the only way he was going to be able to build it.  He noted Mr. Roberts was substantially into the construction; he had some neighbors that were upset because he was building a large house on what was previously a river view for many of them; a Stop Work Order (SWO) was issued because the Building Official took the position take Mr. Roberts is not building according to plans because there is a kitchen in the addition, and a separate electric meter; but all those things existed on the plans.  He stated when going through the records, there were numerous documents that had been removed from the public records to conceal the Lisa Barr letter, and to cover up the fact that Mr. Roberts could have legally built this house, and the SWO was incorrect; by the time they got to the hearing in 2004, the County Attorney’s Office gave the opinion that Mr. Roberts did file a timely appeal, and therefore Mr. Roberts would not be able to go in front of the Board to appeal the SWO; he had file a lawsuit and Judge Moxley ruled Mr. Roberts did file a timely appeal; and that is how they got in front of the Board in 2004, by Court Order.  He stated Mr. Richardson showed the Board some documents from the building file; but what he did not show the Board is that the notice of commencement showed a single-family residence, but on the building permit jacket the single-family residence designation was scratched through and re-coded for addition; the files were physically altered within the County to make it look like Mr. Roberts applied for and received a permit for an addition, bit it just simply was not true; and when the Board realized the wrong doing that occurred to the Roberts’ that is when it settled the case.  He stated the Board heard a lot about $166,000, and it was absolutely true; the County Attorney’s Office is ignoring what he said at that time; when he stood before the Board on March 2, 2004, Mr. and Mrs. Roberts’ damages were approximately $166,000 on that day; it was estimated what it would cost to restore the house; and if the Board looks at the minutes of that meeting, there is a discussion between himself and Attorney Knox, because Attorney Knox wanted an estimate from a builder for the restoration.  He told Attorney Knox he would get an estimate, but if the bid comes back at $90,000, the agreement is that the County is gong to pay $90,000; the County agreed to pay what it actually  cost  the  Roberts’;  and  that   became  the  foundation  of  the   dispute   today. 

 

Mr. Torpy stated the Board approved a global settlement agreement; he takes issue that only paragraph ten is being discussed; stated Commissioner Anderson is aware because when Mr. Roberts was trying to get in front of the Board, he sent an email to Commissioner Anderson asking for a meeting; and Commissioner Anderson’s staff responded it would be put on an Agenda, and that Attorney Knox would handle it.  He stated the next thing they find is the computer generated Agenda that has the resolution that only going talks about paragraph 10; no one from the County Attorney’s Office called him and he does not want to just talk about paragraph 10; the settlement agreement contains several paragraphs; but paragraph eight, nine and 10 are the relevant ones for the damages that the Board agreed to pay; and attached to the settlement is a memo from the Clerk, which is attached as an exhibit and made part of that document.  He stated when the case finally settled several staff members were reassigned, and some lost their jobs; as soon as it settled, one of the issues was that Mr. Roberts was having to pay him; in order to try and minimize that, Mr. Roberts and he talked and agreed with Attorney Knox that he would step out of the loop for the reimbursement phase as the Roberts’ completed their home; that way, the County did not have to continue to pay him fees for what was essentially a ministerial task of implementing a settlement agreement; and from that point forward, after the settlement agreement was drafted and completed, Mr. Roberts and Attorney Knox worked for several months on reimbursement. 

 

Mr. Torpy stated Mr. Roberts has testified, and there is a point of contention here, that in December 2004 he was asked by an Assistant County Attorney to hold everything and submit it when it was done, as one last submission; in December 2004 no one knew is was going to take two years, but that is what Mr. Roberts has testified to; there is a disagreement about that because the County employee does not remember the conversation; but Mr. Richardson just told the Board that in December 2004 they assumed the settlement agreement was finished.  He noted if the County really assumed that, then someone in the County Attorney’s Office did not do their job; the settlement agreement specifically required that when Mr. Roberts was paid in full, he would dismiss his lawsuit and sign a general release to the benefit of the County; stated he was never asked to do that because the County Attorney was well aware that the claim was still open, and Mr. Roberts was still completing his home; and there was a claim yet to come.  He stated if the County Attorney thought it was over he should have insisted on Mr. Roberts doing what the settlement agreement required, which was to release the County and dismiss the lawsuit; there are emails in the Spring 2006 from the County Attorney’s Office discussing future claims, such as the status of the house; and the representation that the County Attorney’s Office assumed this was finished in 2004 is just simply not true.  He stated he would like to read the Court orders; the Board keeps hearing the $3.1 million figure; Mr. Roberts submitted a claim for $3.1 million in October 2006; it included lost wages and personal injury type claims; and Mr. Roberts thought he was entitled to those.  He stated when Mr. Roberts realized Attorney Knox was not going to pay those damages, he came to himself and they modified the claim on November 14, 2006, which was approximately one month after the $3.1 million claim; and that claim that was submitted, contrary to what was being represented, was specific as to dollar amounts, and it was actually less than $900,000.  He stated the County Attorney’s Office said Mr. Roberts did not provide backup; but he spoke with Attorney Knox in October 2006 about how to process Mr. Roberts’ claim;  stated  Attorney Knox suggested  a neutral party that could look at the expenses and determine whether they were actual expenses would be the best way to do it; and stated he agreed.  He stated Attorney Knox came to the Board in late October 2006 and asked for permission to hire someone to evaluate the claim, which would be Mr. Valent; he has no correspondence in his office from Attorney Knox’s office telling him that occurred; when he filed his motion to enforce the settlement agreement on January 30, 2007 he had received no communication from the County Attorney’s Office with regard to the claim; and as far as the accusation that they hauled the County in court, he had no choice as he was getting no communication from County representatives.  He stated very early on, Attorney Knox took the position that Mr. and Mrs. Roberts were not entitled to their actual damages; Attorney Knox took the position that there had to be some kind of percentage of what the escalation costs should have been; so when the County Attorney’s Office said it could not evaluate the claim, Mr. Robinson testified that he was never asked to look at those documents; his testimony was that he just looked at the documents submitted, which totaled approximately $600,000, and then he looked to see what it should have been to see if they were close; and what Mr. Robinson and Mr. Valent were trying to do was come up with a hypothetical number of what the escalation costs should have been; the Board was read an excerpt from the trial from where Judge Moxley stated it does not make sense, $600,000 on a $250,000 home; and he agreed it does not make sense. 

 

Mr. Torpy stated what Mr. Lichtenberg testified to is what he called the perfect storm; there was a 4,000 square foot home sitting abandoned for one year, exposed to the elements, that had to be restored; there were hurricanes that hit in the fall of 2004; and because of the storms and then the building boom, it was hard to get people to do the work.  He stated yes, Mr. Lichtenberg did an appraisal; Mr. Robinson testified he was amazed or shocked that Mr. Lichtenberg’s appraisal was similar to his; those appraisals are to build a home from the ground up, not to reconstruct a home that has been abandoned for a year; Mr. Lichtenberg testified in Court if the home was built from the ground up in 2004, that is approximately what is should have cost, with no SWO or no rotted wood; but Mr. Lichtenberg stated the best evidence of the escalation costs is what it actually costs.  He stated he is submitting to the Board today another document, which Mr. Richardson likes to make light of; from day one Mr. Roberts had a computer spreadsheet and he tracked every single expense in the home; stated Mr. Richardson noted there were receipts for a BMW payment, but the Board will not find them on the claim; Mr. Roberts kept every receipt he had, but he also kept every single day on his computer a check number, who it was written to, and what it was for; and Mr. Richardson showed the Board a couple of checks and made a big point that the checks do not have any information on them.  He advised they were day laborers; Mr. Roberts was stuck using labor force and day laborers; when they left at the end of the day, he would write them a check; stated half of the guys did not have identification so he would have to make them out to cash; he has explained that in deposition; but Mr. Richardson did not tell the Board that.  Mr. Richardson and Attorney Knox took the position that Mr. Roberts was not entitled to certain interest; they first attempted to limit this claim to one year; Judge Moxley ruled in March 2007 that there was no time limit on the claim; and yet the County Attorney wanted to limit it to one year based on some theory; but the County lost that issue.  He stated the County did not want to pay Mr. and Mrs. Roberts the money they had to take out of their savings to finish the home, or the interest that they lost; that issue was litigated for two years; in 2007  Judge  Moxley stated he  had no problem with that; in January 2009 Judge Moxley made it official; and he ordered that the County had to pay Mr. and Mrs. Roberts their lost interest on money they had to divert from their savings in order to finish the home.  He noted the document that Mr. Richardson says is worthless, Judge Moxley allowed into the trial as a business record, as he found it to be credible; it is Mr. and Mrs. Roberts’ contemporaneous record of every dime they spent; the problem Attorney Knox and Mr. Richardson had is they say there is no delta; but from the very beginning of the claim in the Fall of 2006 and Spring of 2007, Attorney Knox did not want to use Mr. Roberts’ budget.  He stated after substantial testimony and trial, Judge Moxley said, “One of the issues is whether the project cost before March 25, 2003 may be shown by Courtney Roberts budget for construction of the home.”  He stated the answer to that issue is that it may be a basis for the projected cost before March 25, 2003 because the projected costs in the budget may be compared with actual historic costs occurring before March 25, 2003; and that comparison and determination, or verification, can be accomplished by Brevard County.

 

He stated the essence of what the problem has been is that the County does not want to compare to the budget; the County wanted to use a hypothetical percentage of increase; that is what the County Attorney wanted to use, and that is what he lost in Court; Judge Moxley ruled the Roberts’ are entitled to their actual damages and to use their budget; and there was extensive testimony on all the bids and information that Mr. Roberts obtained when he was budgeting his house.  He stated for 20 years at the Cape Mr. Roberts did budget estimates for construction projects; he was his own expert and Judge Moxley ruled he could use it; and the County Attorney is still refusing and asking the Board to ignore his budget.  He stated if there is a question about expenditures, the front page of the document given to the Board goes through each instance where Mr. Roberts, or himself have attempted to give the documentation to the County Attorney, but they just did not want it; the County Attorney’s Office said it would get an expert’s opinion of what it should have cost them to finish the house, not what it actually costs; and they lost this issue at trail.  He noted Judge Moxley ruled Mr. Roberts should get paid his actual damages; the evidence in the boxes that have been available since the Fall of 2006, and all the County Attorney would have to do is look at them and ask questions; he has made himself available to come in and explain anything; and the document here today is a monumental effort to distill down all the boxes into readable form.  He stated he would like to address a couple other things as to why the County Attorney says Mr. Roberts built the extra 1,500 square feet; the trail testimony was that in order to repair eight trusses trusses in the hallway, it pre-dated anything the County did; after the SWO over 20 trusses and over 20 floor joists had to be shored up; there was no additional ceiling height added to the second floor; the second story finished area was 10 feet on the first set of plans, and every iteration thereafter, including the settlement plans; the experts have testified to that in Court; the only individual that is denying that is the truss manufacturer who messed up the first eight trusses.  He noted the County Attorney’s Office is saying Mr. Roberts built a whole new second floor at great expense; in paragraph five of the January Order, Judge Moxley stated, “As causation is a specific element of settlement agreement, defendant may, in a separate hearing, challenge whether or not interest, or lost interest, claimed by plaintiff was in fact incurred as a result of the issuance of the Stop Work Order”; the issue there was that Mr. Richardson had said all the work that was done on the second floor was not because of the SWO, it was because  Mr. Roberts was adding living area;  and to the  extent that he spent money on the living area, the County does not have to pay interest on that money.  He stated judge Moxley agreed with Mr. Richardson and directed the County Attorney’s Office to set a hearing; but a hearing has never been set by the County Attorney’s Office on that issue.  He stated the October 10^th Order says, “The issue with regard to the trusses in the home is whether the Stop Work Order issued on March 25, 2003 and ending March 2004 resulted in exposure of weather damage to the trusses leading to subsequent consequential damages to the home, or whether the subsequent consequential damages to the home resulted from a design error, and subsequent cutting of the trusses to correct that design error.”  He stated in October 2008 Judge Moxley stated, “An evidentiary hearing must be scheduled so that the parties can present any additional evidence they desire pertaining to the trusses in the home”; no hearing has yet been set by the County Attorney’s Office on the issue; and in his opinion the reason is because the County Attorney’s Office is going to lose.

 

Mr. Torpy stated the plans always showed there was to be a second story; because of the mold, Mr. Roberts had to encapsulate mold and seal it in; there were several ways proposed to do that; and they way the Roberts chose to encapsulate it, and what was recommended, was to tile the second floor; but Mr. Roberts never asked the County for that additional expense.  He stated Mr. Richardson sat in his office with the documents; what he was looking for was evidence to try to defeat the claim; unfortunately, the County Attorney’s Office has been intent on getting a different standard to say it only wants to pay what it should have cost; and they have been looking for evidence to prove that while ignoring the evidence that has been presented many times that show exactly what the Roberts have spent.  He stated Judge Moxley recognized it was an anomaly; the house was a disaster; and the Roberts were trying to finish the house with every available man they could hire to do it.  He stated Mr. Lichtenberg testified that he could never give an opinion as to what it should have cost to build the house because there are too many variables; and he has said in court that now he can give an opinion if it ever happens again because he has been through it with the Roberts’.  He stated the evidence in front of the Board is court orders, trial testimony, and deposition testimony, and not the opinion of a County Attorney or his own opinion; the document he has submitted to the Board, because of the interest and lost interest, is $4,576,676.51 and growing every day; and that does not include attorney’s fees.  He stated two-thirds of the boxes is the trial record of the case from 2003, 2004, and 2006; there are thousands of pages of documents; 10 boxes are the receipts, bids, and all of the Roberts’ hard evidence of what they spent; and hey have been continuously and always available to the County Attorney’s Office.

 

Chairman Nelson stated Mr. Torpy is at the end of his time for his presentation; and inquired how much more time he needs; with Mr. Torpy responding he needs 30 seconds.

 

Mr. Torpy stated when he asked Mr. Robinson if he looked at the Roberts’ documents in an attempt to determine whether the money was actually spent, Mr. Robinson said no, because if he had, he would still be there today; and when he asked Attorney Knox why they were in litigation, his comment was that it was more than the County anticipated paying.  He stated he is sorry it took longer for the Roberts to build the house than they anticipated;  but it is ludicrous for the  Board to think  that Mr. and  Mrs. Roberts went out and spent over $600,000 out of their own pocket above their budget to finish the house on the hope that the Board would come in and pay them; and it should be remembered that the Roberts’ spent the money in reliance on a settlement agreement with the Board’s predecessors that they would make them whole.  He stated he is asking the Board today to stop the rhetoric and direct the County Attorney to really evaluate the documents for whether the money was really spent and compare it as Judge Moxley has ordered, to the Roberts’ budget.

 

County Attorney Scott Knox stated he has been through Mr. Torpy’s presentation and there is one item in the whole document he agrees with, which is that his opinions are no more valid than his on what the Judge said; what Mr. Torpy thinks the Judge said is completely different than what he thinks the Judge said; if the Judge is going to award $127,000 for cabinets on a $7,000 budget, then that is a different view than what he has; and the reason they are all here today is because the Judge ruled that Mr. Torpy did not present a case that warranted any kind of award to the Roberts’ that last time they were before him.  He stated the Judge told Mr. Torpy and Mr. Roberts to come back to the Board and present their escalation claims and let the Board decide whether it should pay something or not; that is why they are here today; and everything else about the history of the case was resolved when the County paid the Roberts $337,000. 

 

Mr. Richardson stated the Court specifically directed Mr. Torpy to bring one element of the claim back to the Board, this time with the evidence he did not bring to the trial, which was the escalation that is being discussed today; he has heard figures of $4 million and $4.5 million; but he has never heard a figure for escalation.  He stated the Board was told a spreadsheet was introduced into evidence in court, but that is not true; 10 different budgets, none of which equal $250,000 were introduced; but no spreadsheet was introduced into evidence; and he was given three different spreadsheets over the week of the trial, which varied by over $122,000 in the claimed costs to build the house with no explanation for the differences contained in the spreadsheets.  He stated Mr. Robinson will show the Board that he has reviewed the documents submitted with regard to the claim and he  will talk about the problems with the claim, such and Mr. Torpy and Mr. Roberts wanting the Board to pay $127,000 for cabinets that he supposedly only had a line-item in his budget for $7,000; and Mr. Robinson will explain why the $127,000 escalation for cabinetry and counters does not make sense and it cannot be paid by the Board. 

 

Robert Robinson stated he is a licensed PE and a certified general contractor in Brevard County; and he is also the Vice President of Wagner Homes Ingliss, a construction consultant firm that helps agencies, contractors, and owners resolve disputes like the one in question.  He stated he is not a hired gun or an advocate for his client; he reviews the contemporaneous project documents; and he tells it like it is, good, bad, or ugly.  He advised he was asked to review the contemporaneous project documents to determine the delay caused by the Stop Work Order (SWO) and to determine the cost escalation due to the SWO; regarding the magnitude of the delay, the SWO resulted in a delay beginning on March 25, 2003; the SWO was lifted on March 5, 2004; and after that, the Roberts spent three months having a PE inspect the structure as it stood.  He stated the Roberts also hired Mr. Militano, a contractor, to do the restoration work; Mr. Militano’s contract  identified he  could get  the  restoration  work  done in 60 days and to follow  on construction after restoration in 100 days, which would have resulted in a finish date for the for the house of December 2004; however, the restoration was not completed by that date because Mr. Roberts decided to build out the additional 1,237 square feet on the second floor.  He indicated to an area in a photo that is identified as attic space, and stated there are no height limitations identified on the attic space on the plan; and stated when a truss fabricator looks at a set of plans to design trusses, if it is attic space, it is a whole different set of criteria than if it is going to be living space.  He stated there are height requirements for the roof; if it is attic space it does not matter, because no one is going to be living in it; he indicated on a photo the area outlined in blue is all now living area and built-out with bathrooms and living area; and stated they even incorporated more areas than were identified.  He stated the Board can see how the timeline would have drastically increased because now the Roberts are building a totally different house; LBL beams were added; there are posts that were added; load-bearing walls were added; 27 trusses had to be cut and modified, all due to building out the upper level; and all the structural modifications were surrounded by that. 

 

Mr. Robinson indicated a picture of what was actually built; stated Mr. Roberts wants the Board to believe all of the modifications were caused by weather damage; however, the Roberts’ framing contractor, the truss designer, and the general contractor have all testified that it was all due to the second floor build-out; and even the Roberts’ own PE who was hired to inspect the project after the SWO was lifted, maintains there was only a handful of small modifications needed for the trusses.  He stated Mr. Roberts said there was mold damage and they had to encapsulate it; mold should not be encapsulated; mold should be treated and removed, but never encapsulate; and that is what any mold expert will say.  He stated regarding the cabinetry, Mr. Roberts had a line item in his budget of $7,0000 for cabinets; the kitchen cabinets are in a totally different location than shown on the plans it is twice the size of the kitchen shown on the settlement plans; in the office, the wall cabinet was identified in the plans, but the protruding part was not, with granite wood cabinets in cherry; there was a little island contemplated, but not all of the cabinets along the window or the back wall; and there is a kitchenette upstairs that was never contemplated either, nor is it shown on the revised plans that he actually built.  He stated his is opinion is that Mr. Roberts added 1,237 square feet of living area, including the upgrades to the finishes in the whole house, as well as the upgrades and finishes in the upstairs, that cause the project to be severely over budget, no matter the starting point; but unfortunately, they were not caused by the County; and the County should not be responsible for paying these upgrades or the added square footage that the Roberts’ now get to enjoy.  He advised based on his findings, the Roberts’ are due approximately $26,000 for the escalation for what they should have been paid; but that is not in addition to what has been paid so far; and thus, the Roberts’ have actually been grossly overpaid to date. 

 

Mr. Torpy stated Mr. Robinson will not be allowed to offer what he just said to the Board in Court as testimony; the Judge has ruled that Mr. Roberts is entitled to the $25,000 figure, which is based on what he told the Board earlier; and Mr. Robinson used Mr. Roberts’ budget as the base in order to come up with the $25,000 figure.  He stated he is not trying to tell the Board there are not some legitimate questions staff could ask; he has been begging staff to ask questions since October 2006; but staff just shows the Board  some pictures of  cabinets; and  what staff is  saying is they  do not  want to  pay, because they do not think it should have been done.  He stated in March 2007, Mr. Richardson sat with Judge Moxley and himself and agreed on record that on March 28, 2007, they would meet in the County Attorney’s Office to go through all of the documents; that was done; and the CO was then supposed to evaluate the documents and come to the Board with approval to pay what they did not dispute.  He noted there was a June 5^th hearing date set in front of Judge Moxley to resolve the things they are trying to bring up now; but he never got to that hearing; and he spent two years trying to get the Judge to rule in his favor.  He stated the County Attorney has wanted to change the standard, but Judge Moxley has said no, the County needs to pay the Roberts’ their actual expenses; and he has provided the receipts, which was put into evidence, contrary to what Mr. Richardson said.  He stated he and Mr. Richardson argued for a half hour as to whether it would qualify as a business record because for trial purposes, he put a note on the top of it that said it was for the trial; the Judge said that part had to come off and it had to be evidenced; and that is exactly what he did.  He stated he is asking the Board to look at the document and compare it with the receipts and do as Judge Moxley ordered.  He stated Mr. Roberts is not going to have to pay what Mr. Robinson set; the Judge has already ruled that; the Board is going to have to pay what was actually spent; and he asks the Board not to approve the resolution, as it would be making findings that are not supported; and he would like the Board to direct the County Attorney to truly evaluate the documents he has provided to determine whether the Roberts spent the money.  He stated the County has stolen six years of Mr. Roberts’ retirement; he is broke; and he is asking the Board to pleas evaluate the money that was spent and determine whether they had to do it because of the SWO, and then pay them. 

 

Commissioner Fisher stated he asked Mr. Richardson to send Mr. Torpy the letter; and what he was trying to get to was a good understanding of actually what the claim is.  He stated in the documents submitted today, he sees expenses of $4,970,468; and inquired how much of that is actually the home.  Mr. Torpy replied to construct the home, including what they planned on spending it was approximately $1.1 million of actual construction costs; and that includes the original $250,000.  Commissioner Fisher inquired of the $4.9 million, how much of it was actually spent on the home; with Mr. Torpy responding approximately $1.1 million.  Commissioner Fisher inquired if Mr. Roberts spent $1.1 million building the house our of hard dollars; with Mr. Torpy responding affirmatively.  Commissioner Fisher inquired what is the $3.8 million difference.  Mr. Torpy replied it is predominantly interest; the interest was calculated by the accountant, both the lost interest and the interest he was paying on all of his mortgages; and it compounds every year and grows.  Commissioner Fisher inquired how much is Mr. Roberts’ mortgage; with Mr. Roberts responding there is $1.5 million in mortgages on the two houses.  Mr. Torpy advised the Board is not being charged on the mortgage that exists on the home the Roberts’ are living in; and that is not in the numbers in front of the Board. Commissioner Fisher inquired how much was the mortgage when the construction started.  Mr. Torpy replied the Roberts’ were approved for over $500,000 because of the substantial value of the land and because of their credit; the bank approved $550,000, and the budget was $250,000; but they wound up throwing down the whole $550,000 because after the SWO, they needed it; and that was their first source to go to for extra capital to finish the house.  

 

Commissioner Fisher stated the Board is not disputing the original permit shows $300,000 that was going to be spent on the house.  Mr. Torpy stated that is the estimated value; the $347,000 figure was an appraisal of the value of the house when it would be finished, not the cost to construct it; in other words, the bank wanted to know when it financed it, how much it would be worth after it was built.  He stated there was a construction cost appraisal, which was done earlier, that has the $250,000 figure; the $347,000 figure is a value appraisal, which is how much it is going to be worth when it was finished; and both of those appraisals are in the Board’s packages.  

 

Commissioner Fisher stated he does not believe it was the Roberts’ intention for the County to build them a house.  Mr. Torpy advised that was not the intention at all.  Commissioner Fisher stated Mr. Roberts was going to pay something for the $1.1 million house; at the time of the SWO, the cabinets and flooring were not in the house; Mr. Roberts made the decision of which one of those items to put in and when to put them in; and inquired if $1.1 million was what the Roberts spent.  Mr. Torpy replied no, that was not in the budget; a large portion of that was restoration, then there was repair to the beams.  Commissioner Fisher inquired how much is restoration; with Mr. Torpy responding $86,000; but Mr. Roberts can give the Board the numbers off the top of his head. 

 

Mr. Roberts stated the things that have changed in his expenses are things like interest, attorney’s fees, insurance that he carried on a second house; they are accumulating every month; the construction costs have not changed since he filed his claim in October 2006; and it is less than $600,000 for the construction costs still outstanding from the County. 

 

Commissioner Fisher stated the County paid Mr. Roberts $337,000; and inquired how that becomes part of his $4.9 million expense.  Mr. Roberts replied page one of the spreadsheet says, “Total costs incurred March 25, 2003 through April 14, 2009”; those are the numbers current as of today, calculated yesterday; it shows what has been paid by the County, which is the $337,312.96; $13,778.13 was construction refunds for materials that were returned to the lumber company and were credited back into the account; and then credits of $42,701 was remaining in the budget when the SWO as imposed.  He stated there is another line item for credit for second floor enhancements; non-SWO costs were not included in the claim; the line item is zero; the second page says, “Second floor costs not attributable to SWO”, which was $21,460.89 in additional costs for the second floor for things that were not attributable to the SWO; and those were things such as plumbing fixtures, fans, and that sort of things that were not already in the budget.   Commissioner Fisher inquired what is the exact number Mr. Roberts spent on interest; with Mr. Roberts responding interest and refinancing costs are now $3,597,501.80.  Commissioner Fisher inquired if Mr. Roberts spent $3.5 million in interest since the SWO was lifted.  Mr. Roberts replied he spent more than that, but the Board is not being billed for the interest that he would have incurred if it were not for the SWO; his original mortgage on his original home when refinanced, had a $200,000 remaining mortgage; he refinanced it for $700,000 in 2005 so he could try to complete the work; he is retaining his own responsibility for the $1,797 per month in interest that he is already paying; and he is billing the County for the additional interest he inured from the refinance. 

 

Commissioner Fisher stated if Mr. Roberts had a seven percent note, his interest on it might have been $40,000 to $50,000 per year; if he did that for five years, that is $250,000; and inquired how Mr. Roberts got to $3.5 million.  Mr. Roberts replied the spreadsheet has line items of everything that has been billed.  Commissioner Fisher stated that is where the confusion is because it does not make a lot of sense.  Mr. Roberts advised he had a second mortgage that he took out that was $2,837 in interest; he had a construction mortgage interest of $79,551 before it converted to a permanent loan after they issued the Certificate of Occupancy; and he had a permanent conversion cost to go to the permanent loan, which was $43,554.46.  Chairman Nelson inquired why the County would pay for the conversion; with Mr. Roberts responding because he would not have incurred those had it not been for the SWO.  Chairman Nelson noted Mr. Roberts would have converted it at some time.  Mr. Roberts stated no, he would have paid it off with cash when he finished the house and sold the other house; and his plan was to be mortgage-free in retirement. 

 

Commissioner Fisher inquired if Mr. Roberts is trying to convince him that he has spent $700,000 per year for the last five years in interest.  Mr. Torpy stated the Board needs to remember the interest claim is not just the interest paid on mortgages, it is also the lost interest and the money Mr. Roberts pulled out of his retirement.  Commissioner Fisher inquired how much of that was due to the stock market going south.  Mr. Torpy replied the stock market went south this year; Mr. and Mrs. Roberts’ money was invested in a money market account called a “wealth builder” account; he has evidence that for 20 years the account was yielding 20 percent in interest, not seven percent; and that is the number the judge ruled he is entitled to.  He stated he submitted the documents to show the dollars that he had in there and the interest he lost, when he pulled the dollars out.  

 

Chairman Nelson stated the spreadsheet does not show that; it shows numbers, but it does not tie it into anything; they are just numbers on a spreadsheet, which does not make them real; and the Board’s concern is that it is looking at a lot of numbers, but there is nothing to tie it to.  Mr. Torpy stated he has heard that song before.  Chairman Nelson stated it is not a song, it is a requirement of the Board to understand what it owes the Roberts; and the Board wants to do the right thing.  Mr. Torpy stated unfortunately, he has been hearing that from the County Attorney for a couple of years; it is frustrating to him because he has provided not only the documents from the fund to go back and look, and he has also had the expense of hiring an accountant to look at the docments from the fund and verify the numbers; and he has provided that to the County Attorney to show that those are real numbers. 

 

Commissioner Fisher stated a mistake was made in the County Building Department; everyone acknowledges that; and he thinks the previous Board tried to correct that wrong; but in his eyes, he wants to know what is the Roberts’ damages, and not what he lost in the market.  He stated it is taxpayers money that is going to pay for the house; he understands the County made a mistake; and inquired at what price does the taxpayers have to pay for that mistake.  He stated the County has already paid the Roberts’ approximately $337,000; his personal opinion is that the County has overpaid them; but the goal of the Board should be to pay  the Roberts’  what it owes them, and not a penny less or a penny more; and it is the Roberts’ obligation and responsibility to prove if it is more than the numbers say. 

 

Commissioner Anderson inquired if the “wealth builder” account was interest, or is the Board talking about return on investment.  Mr. Torpy replied it was interest.  Commissioner Anderson inquired if it was 20 percent interest, or 20 percent return on investment; with Mr. Torpy responding sometimes it was 24 percent.  Commissioner Anderson inquired if those were investments that were turning dividends and increase of market value, or if it is actual fixed interest rate.  Mr. Torpy stated this was the exact argument in front of Judge Moxley; it is Judge Moxley’s order dated January 13, 2009; Paragraph Eight of the Settlement Agreement specifically provides for payment of interest to plaintiffs provided said interest was incurred as a result of the increase of the SWO; and it goes on to talk about that interest.  He stated Paragraph Three of the order says, “Paragraph 10 of the Settlement Agreement specifically incorporates a memorandum of the Clerk of the Court”; the memorandum provides, “In addition to interest, the payment of lost interest, accordingly, as an element of damages, plaintiffs are entitled to lost interest”; stated he had a dialogue with the Judge about that exact issue; and the Judge ultimately ruled in January that the Roberts were entitled to it.  He stated he provided that documentation; accountants verified it; he has provided the information from the account where it was, and how much interest it was earning; the Judge ordered it; and so it is interest. 

 

Commissioner Anderson stated he needs verifiable information; the interest is what is bothering him; he needs something to show him that there was a 20 percent yield on some accounts somewhere; there is a difference between interest and return on investment; and there is a reason for that because if using a return on investment, then the Board has to take in the variables of the market fluctuation.  He stated if it is a fixed account where it bears a certain amount of interest, he wholeheartedly agrees; but 20 percent is hard to believe because he would have been in that account if it were true; and whether it is the investment firm’s statements, or whatever, he needs something that he can look at and audit himself.  Mr. Torpy stated he will provide what Commissioner Anderson just asked for, which are the hard documents for him to look at and see they are not just numbers being pulled out of the sky; and he has offered it several times in the past. 

 

Commissioner Anderson inquired if Clerk of Courts Scott Ellis has audited the documents.  Mr. Richardson replied Mr. Ellis has not done a full-blown audit; stated Mr. Ellis has looked through the binder that has been provided to the Board, and he has been forwarded Mr. Torpy’s correspondence.  Commissioner Anderson stated he is trying to come to a conclusion; there is no doubt in his mind that what happened in 2003 was horrible; he knows a lot of those employees are no longer with the County; he would love for the Judge to say the Board owes the Roberts’ a certain amount; but when he spoke to Mr. Ellis, he does not think the interest income comes into play.

 

Mr. Richardson stated after a hearing last week, the Judge is starting to see the difference in investment and interest; that is an issue the Court is going to resolve; the Judges order specifically directed Mr. Torpy and Mr. Roberts to bring the Board a claim attaching evidence proving the escalation;  and all the Board  has is a box  of documents with no claim.  Mr. Richardson stated he has seen a spreadsheet that he was told was introduced into evidence; he can tell the Board it was not introduced into evidence; the numbers from Mr. Roberts and Mr. Torpy do not add up consistently; and the spread is literally hundreds of thousands of dollars.  He stated he called Clerk of Courts Scott Ellis and asked him to look at the documents; he does not mind Mr. Ellis looking at the documents; but has a task that the Court’s directed staff to do and respond to today regarding the escalation portion of the claim; and the Board has heard $4 million is in interest, but it has not heard an escalation number.

 

Commissioner Infantini stated the last time Mr. Torpy was in front of the Board, she asked him to provide her with any type of documentation that would establish a financial basis for his claim, to please produce it; and it was not until one week ago that she received a binder full of depositions.  She stated she looks at documentation, spreadsheets, support, and the budget; the cost estimate on Mr. Roberts’ permit says $300,000 for roughly 1,100 square feet; and she went to the County Attorney’s Office when she first heard about the case to document that those were the permitted plans.  She inquired if Mr. Roberts has signed, stamped, permitted plans from the County from October 2003 establishing that he had a second floor; and stated the plans she looked at showed an unfinished attic from October 2003 that had a County seal on it.  She stated if Mr. Roberts has those plans that are stamped and sealed by the County saying yes, there was to be a finished attic, as opposed to an unfinished attic, that would be great; she would also like some type of spreadsheet with receipts behind it; and she does not know why the document was not provided to her when Mr. Torpy was given an extra month. 

 

Mr. Torpy stated the Roberts’ did not get a SWO because they built on a second floor; and that was not the basis of the SWO.  Commissioner Infantini stated the plans that were approved prior to the SWO were dated and stamped in October 2003; and she believes those were the plans.  Mr. Torpy advised 2002 is when the permit plans were approved and the Roberts’ started construction; construction stopped in 2003; the plans do not show a finished second floor, such as the doors, electric, and fireplace; and all of that was in the plans that were permitted and approved.  He noted what the plans do not show are sinks and things like that because Mr. Roberts pulled them out during the permitting process with the intention to finish it down the line.

 

Commissioner Infantini inquired if Mr. Torpy has a copy of those plans.  Mr. Torpy replied yes, it is in the Board’s package; Tab Eight is the spreadsheet that Commissioner Infantini just referred to as of the damages, which is virtually identical to the one the Board has now except it was a dated version because the damages keep building.  He stated Commissioner Infantini asked him to have receipts attached; there are thousands of receipts; stated he does not know how to do that; that has been the issue because someone has to sit down and look at them; and the receipts in the boxes are time-lined by month.

 

Commissioner Infantini stated she was looking for the building plans; and inquired if Mr. Torpy had those.  Mr. Roberts indicated the original plan submitted to the County.  Commissioner Infantini stated she wants the plans that were stamped and approved.  Mr. Torpy advised the plans are under Tab 18; and he has three sets of plans, including the Settlement set.  Commissioner Anderson stated Commissioner Infantini is looking for the sealed approved plans.  Mr. Torpy stated he can provide the Board with the sealed plans; and he would assume the County has those on record as well.  Commissioner Infantini stated the first set of plans are from April 2003, which were the one’s she saw that had the County seal; that is why when she looked through Mr. Torpy’s documentation, she was looking for a County stamp indicating that plans he is showing her show the finished attic; and that is all she was looking for. 

 

Mr. Torpy stated he wants to be clear that Mr. Roberts did not get permitted plans with a finished second floor; the plans he submitted for permitting had a finished second floor; but through the process, the County required a tiled roof and other added expenses; Mr. Roberts pulled out the finishes to save expenses at the time; and so the permitted plans were different than the plans submitted for permitting.

 

Commissioner Fisher inquired which plans were used in the Settlement Agreement.  Mr. Torpy replied neither of the plans he just referenced; the Settlement Agreement plans did not have a built-out second floor; he has made no contention of that; and the County has not been billed for the added expense of finishing out the second floor.  Commissioner Fisher inquired if the second floor was not included in the $1.1 million.  Mr. Torpy replied that was for a total cost, but that is not what the County was billed for; and the Board asked how much was spent, but it actually received a credit.

 

Commissioner Anderson stated the Board needs to know if that is a portion of the interest income.  Mr. Torpy advised that was also yanked out.  Commissioner Anderson inquired if any of the money from the loan was used to complete the second floor.  Mr. Torpy replied it was all co-mingled; the money came from a lot of different places; but the Board was given a credit and not charged for those items.  Commissioner Anderson inquired if the money the Roberts’ took out of their investment money was not used to complete the second floor.  Mr. Torpy responded he does not know where it came from; there were several sources of money to finish the house. 

 

Commissioner Bolin inquired if the value appraisal is usually more than what the Roberts’ budgeted.  Mr. Richardson stated actually, there is no appraisal for $373,000; the binder he gave the Board was a construction cost appraisal on which the loan was based; and he has provided the Board documentation showing that the loan was based on $373,000 construction cost of the home.  He advised the appraisal specifically says, “total estimated cost $373,344”, which is what the loan was based on; stated part of the problem is that the Board has heard $1.1 million to complete the home; but the Board is supposed to pay them the difference between the actual cost and what they would have spent, if not for the SWO.  He stated the County is paying the difference before and after, it is not paying the 100 percent claim; the Board has not heard an escalation figure today; and the Board has asked for the figure, but it has not heard it.  He advised the importance of the appraisal on the budget is that the Roberts’ want to use $250,000 to establish a baseline for their construction cost; there is no $250,000 budget; staff used the closest one that was presented at trial, which is the very last document in the binder; and the loan to build the house was based on a $373,000 construction cost appraisal. 

 

Commissioner Bolin inquired if she anticipates it is going to cost $373,000 to complete her house, and then there is interest on the loan, would that not be the interest on the amount of what she anticipated the cost to be; and stated what she needs is an explanation and definition of escalation.  Mr. Richardson stated what the Board needs is an apples-to-apples comparison; there is always going to be trouble because the Roberts’ built an entirely different house than the house that is specifically referenced in the settlement stipulation; staff would like to be able to strip out the things for upgrades and improvements for the second floor; but it is impossible to identify because they have been refused at every turn.  He stated to figure out escalation, the Board needs to take the house and the settlement stipulation plans, compare the cost before the SWO and the cost after for that part of the house, and strip everything else out; the Roberts’ told the Board they gave it a credit of $20,000; at the last trial the Roberts’ said it was a credit to the Board of $13,000; they are giving the Board a credit to build out the second floor; but for $1.1 million to build the 2,813 house, they are spending $500 per square foot; and giving the Board a $20 per square foot credit for the expansion does not add up.  He stated it is virtually impossible for the County to prove what escalation is; that is why the Settlement Agreement, the Judge, and the law, all say it is their burden and responsibility to prove that claim to take the evidence out of the box and put it in a fashion that makes sense to the Board; but Mr. Torpy and Mr. Roberts have not done it, nor will they even tell the Board a number because once they put out a number, then staff will have something to work with to be able to disprove it. 

 

Commissioner Bolin inquired what is the escalation cost the Board is supposed to be looking at.  Mr. Torpy replied it is $514,458.97, which is in the Board’s document; but the document was not prepared for litigation, it was just Mr. Roberts keeping track of his bills, putting them in his computer every day; when Mr. Richardson was asking questions, Mr. Roberts would go to his computer and generate a report; and in that process, certain line items were moved from one category to another, not that the money was not spent, but it was more appropriately put to wherever it was.  He stated the cabinets were from Home Depot; they are not custom-made cabinets, nor are they cherry wood; but they are cherry stained in the office, which were the original plans frolm the very beginning.  Commissioner Bolin stated there is a difference in the numbers that were given to her.  Mr. Roberts stated he will have to go back and look at the numbers to try to answer that for the Commissioner. 

 

Mr. Roberts stated the documents he has show his total costs, versus what his total costs were supposed to have been in the beginning; if that is what Attorney Knox is referring to as escalation costs, then that is fine; but escalation is only a minute portion of the entire Settlement Agreement.

 

Commissioner Fisher stated escalation is the most important part to him because that is where the real loss is; and the Board has already paid the Roberts’ $337,000, but $200,000 has been for what the Board considers escalation costs.  Mr. Roberts stated there was an $82,000 payment, a $90,000 payment, and another $82,000 that was made to him for unexplained items after there was a meeting in March 2007, that he assumed was from the uncontested portions of his claim; and he found out later that is was the settlement claim. 

 

Commissioner Fisher inquired if Mr. Roberts is telling the Board that it cost him $514,000  more in materials or labor costs to build the house.  Mr. Roberts replied that is correct, and there is still $223,000 estimated in outstanding work.  Commissioner Fisher inquired if the house cost more than $100 per square-foot to build.  Mr. Torpy advised it is a 4,000 square-foot home; a large portion of the house is an indoor pool, that although not under air, it is finished; and it is a cost of finishing over the 4,000 square feet, not just of the 2,800 air conditioned portion.  Commissioner Fisher stated he is going to consider under air because that is normally what square footage is based on; and it cost $183 per square-foot above what the County has already paid Mr. Roberts to finish because of the SWO.  Mr. Torpy stated the Board cannot ignore the large room that is the pool and when that is added, it is going to lower the cost per square foot.  Commissioner Fisher inquired if the pool was in the plans; with Mr. Torpy responding yes. 

 

Chairman Nelson stated he is still trying to figure out how the house is 4,000 square feet based on the plans, because the plans clearly show the first floor under air was 1,300 square feet; the total square footage was 1,500 square feet; and inquired how it came to 4,000 square feet with the second floor enclosed.  Mr. Roberts stated 4,000 is the total square footage of the house; and Chairman Nelson is just reading the under air portion.  Chairman Nelson inquired if Mr. Roberts is including the garage.  Mr. Roberts replied yes, and the atrium and the pool area.  Chairman Nelson stated Mr. Roberts has said the numbers do not change, but he is going to disagree because he looked at the information given to him and there were some numbers that do not match up; stated Mr. Roberts has a claim of $250,000 for Mold Devaluation of the House, but Mr. Roberts told the Board he encapsulated the mold; and inquired where Mr. Roberts came up with the $250,000.  Mr. Roberts stated a mold mitigation expert told him he either had to remove all of the wood or it had to be treated and encapsulated; he chose to treat it and encapsulate it because the County would not reimburse him for replacing all of the trusses and studs.  Chairman Nelson stated the County has paid the Roberts’ for that.  Mr. Roberts stated no, the County has not.  Mr. Torpy noted Mr. Leichtenberg testified that mold is a disclosure item; when there is mold in a home it must be disclosed when the house is sold; and $250,000 was the estimate of how much the home would be devaluated if it has to be disclosed to a potential buyer.  Chairman Nelson inquired if Mr. Roberts is asking the Board to pay to mitigate and also for the devaluation.  Mr. Torpy replied both are impacts that the Roberts’ experienced.  Chairman Nelson stated for $250,000, the Roberts’ could have torn everything out and started over; and that is what does not make sense to him.  Mr. Torpy stated one problem is that the County is making rules after the house is finished; the County wants bids for every component of the house; but contractors do not give a bid for every nail and screw, they give a range. 

 

Chairman Nelson stated there are some expenditures that give him heartburn such as Ichibods, ABC Wine and Spirits; and he is struggling to understand why the County is buying those items.  Mr. Torpy stated he has tried to meet with the Commissioners individually several times; he is not saying the report is perfect; there are thousands of items; and Mr. Roberts was just tracking all of his expenses for tax purposes for a lot of reasons.  Chairman Nelson stated Mr. Torpy can understand how it complicates the issue.

 

The Board recessed at 1:07 p.m. and reconvened at 1:24 p.m. to allow SCGTV to change DVD.

 

Chairman Nelson stated the Board can listen to the speakers who have filled out cards; and the Board will conclude with a final discussion.

 

W.K. Forehand stated he has known Mr. and Mrs. Roberts for 30 years and has always found them to be honest, honorable and hard working citizens; and in his estimation they have been, and are still being, terribly wronged by the County.

 

John Gerard stated he is in support of Mr. and Mrs. Roberts.

 

Commissioner Fisher stated he is disappointed; he came to the meeting with an open mind that hopefully the Board could come to a settlement; he was looking forward to the evidence; stated he indicated to Mr. Torpy that that is what he wanted to see; he is embarrassed that Mr. Roberts has come to the Board documenting a $4.9 million claim that is growing every day; and when he looks at the documents there are receipts from Surf and Turtle Bar for $48.13, Dominos Pizza, and ABC Wine and Spirits.

 

Mr. Roberts stated those receipts do not belong in the documents, as it is a computer error.  Commissioner Fisher stated the point is, if Mr. Roberts is going to try to come before the Board and say that is his actual claim, he does not think it is fair to submit to the Board and not review it, documents saying that is part of the settlement; it is not honest; and he does not believe Victoria’s Secret has anything to do with the cost of building the house, nor does Mr. Torpy’s credit care for Exxon Mobile.  He stated he is willing to live by the previous Commission’s decision. 

 

Commissioner Bolin inquired if there is a time element on the $100,000 judgment.  Attorney Knox stated if the Board wants to give the Roberts’ time to think about it, that is fine, but it should not be a formal offer of judgment like the Board has already done once.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to adopt Resolution denying the Roberts’ claim for additional construction cost increases and setting forth the Findings of Fact and Conclusions of the Board pertaining to Roberts v. Brevard County, Circuit Case No. 05-2003-CA-057511; and approve a $100,000 offer to Mr. and Mr. Courtney Roberts in full and final satisfaction of the Roberts’ entire claim, with ten working days from April 14, 2009 to respond.  Motion carried and ordered unanimous.  

 

 

Commissioner Anderson stated with what occurred originally, no one is denying that was criminal to Mr. Roberts; everyone owes the Roberts’ an apology for what originally occurred; but his hang up is on the interest income; and I just wanted the Roberts’ and Mr. Torpy to help him help them. 

 

 

 

Commissioner Infantini stated she asked Mr. Roberts and Mr. Torpy to bring her documentation to support the case and the additional claims; but the Board has paid out more than the Roberts’ originally asked for; and she supports the motion.   

 

 

 

Interim County Manager Stockton Whitten requested Item VII.C.1, Approval, Re:  Funding Allocation for the Clerk of Court’s Phone System Expenses, FY 2009, and VII.D.3., Permission, Re:  Solicit Bids for Lease of Unused County Antenna Tower Space, be removed from the Agenda.

 

Mr. Whitten advised staff will resubmit Item VII.D.3.; and stated before a minimum bid can be requested, staff has to put it on the County’s website for at least one week. 

 

 

 

Commissioner Fisher advised he rode the SCAT bus to the meeting this morning; and it was interesting to be on the bus with some people with disabilities or they do not have vehicles and have to depend on SCAT for transportation. 

 

 

 

Commissioner Bolin advised the National Day of Prayer event will be held on May 7, 2009; it will be at noon on the west side of Building C; and leading the event will be the Suntree/Viera Ministerial Association.

 

 

 

Commissioner Bolin advised she has a staff award for Chris Davidson.  She congratulated Mr. Davidson on his recent heroic efforts in life saving CPR on behalf of a local elderly gentleman who Mr. Davidson observed collapsed on the sidewalk; and Mr. Davidson is to be commended for his quick response and action that helped saved the victim’s life, while on duty as a traffic sign and marking technician.  She stated it is her understanding that Mr. Davidson dialed 9-1-1 and while speaking to the dispatcher, he continued to apply CPR until the Fire Rescue Team arrived to take over the task; and Brevard County is blessed to have employees such as Mr. Davidson who make a difference in the welfare of others a priority. 

 

 

Chairman Nelson stated he would like to appoint Kelly Jo Strabley to the Animal Welfare Working Group.

 

 

 

Interim County Manager Stockton Whitten advised Item III.A.5. is for approval of either a Change Order or a Task Order, as applicable.    

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to adopt Resolution for Assistance and approve Grant Application, providing an estimated amount of $20,000 of a $27,000 project, from the Florida Inland Navigation District (FIND) to further Brevard’s Channel Marker Program; and authorize the County Manager to execute the subsequent grant contract if awarded.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to execute Project Agreement with Natural Resources Conservation Service, United States Department of Agriculture for cost-sharing the Broadway Boulevard drainage improvements at the U.S. Highway 1 project, pending review by the County Attorney’s Office and Risk Management; approve any necessary Budget Change Requests; and authorized the Chairman to execute a Change Order or Task Order with an existing qualified contractor, currently under contract with the County and in good standing, with the lowest Change Order or Task Order proposal to complete this “exigent” work by June 15, 2009 per the Contract deadline.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to execute Binding Development Plan Agreement with Club Rio, LLC for property located on the west side of U.S. 1, approximately 800 feet north of Friendship Place.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to accept a Sidewalk Easement from Meridian Property Group, LLC for property located in Section 19, Township 26 South, Range 37 East.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to accept a Sidewalk Easement from S & S Enterprises, Inc. for property located in Section 31, Township 24 South, Range 37 East.  Motion carried and ordered unanimously.

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to accept a Right-of-Way Deed and Sidewalk Easement from Fountainhead Memorial Park, LLC for property located in Section 15, Township 29 South, Range 37 East.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to waive the Phase I Environmental Assessments and execute Contract for Sale and Purchase with Donna Wojac for Parcel 128 needed for the Barnes Boulevard Widening Project.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to execute a Bill of Sale with the City of Titusville for a water line at the North Area Service Complex in Titusville.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to adopt Resolution and execute Locally Funded Agreement with Florida Department of Transportation (FDOT) for construction of the S.R. 520/Cox Road/A Lane Intersection Realignment Project.  Motion carried and ordered unanimously. 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to approve contributions of $1,000 each for the Fourth of July Fireworks Displays sponsored by City of Melbourne, City of Palm Bay, City of Titusville, and Thunder Over Indian River, Inc.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to approve naming the main entrance road to the Chain of Lakes, Truman Scarborough Way.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to approve and authorize the Chairman to execute Amendment No. 5 to Interlocal Agreement with City of Rockledge for fencing replacement at Rockledge Park tennis court complex.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to approve and authorize the Chairman to sign the revised Drug and Alcohol Testing of Space Coast Area Transit Applicants and Employees Policy (BCC-14).  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to acknowledge the Montecito Community Development District FY 2007-2008 Annual Financial Audit Report.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to adopt Resolution amending original Qualified Targeted Industry Resolution benefiting GENO, LLC.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to appoint Jon Brazee, Pat Conner, David Hosley, Walt Johnson, Micha Loyd, and Paul Secor, to the Spaceport Commerce Park Authority, with terms expiring December 31, 2009.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to approve the application to apply for the 2008-2010 State Homeland Security Grant in the amount of $52,473.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to approve the advertisement of a Request for Proposal (RFP) for replacement of the 9-1-1 System Network and Customer Premise Equipment; appoint a Selection Committee to evaluate the proposals and recommend an award, consisting of Jon Sellers, Information Technology Director, Stephen O’Conor, 9-1-1 System Manager, Michael Brickner, Brevard County Sheriff’s Office Communications Center Manager, Frances Self, Palm Bay PD PSAP Coordinator, Michael Switzer, Melbourne PD Communications Supervisor, or their designees; and appoint a Negotiating Committee consisting of the Selection Committee and an Assistant County Attorney appointed by the County Attorney’s Office.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to approve sending a letter to AT&T requesting the addition of SCGTV (and BPS-TV) to its local channel lineup on U-verse cable television now offered in Brevard County.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to approve payment of award to employees James Miles, Utility Services Department, and David Williams, Utility Services Department, who submitted a recommendation (EIP #371) under Brevard County’s Employee Innovations Program.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to ratify the tentatively agreed upon modifications to seventeen (17) articles in the Collective Bargaining Agreement; and authorize the Interim County Manager to execute said Labor Agreement as provided for by Section 447.309, Florida Statutes.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to approve modifications to Article 13, Wages and Article 70, Duration of Agreement, for International Association of Fire Fighters, Local 2969 – Rank and File Unit.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to ratify the tentatively agreed upon modifications to forty (40) articles in the Collective Bargaining Agreement; and authorize the Interim County Manager to execute said Labor Agreement as provided for by Section 447.309, Florida Statutes.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to grant approval for the Brevard County Sheriff’s Office to apply and accept the VOCA grant from the Office of Attorney General, to fund a portion (75%) of salary and benefits of four existing victim advocates for Fiscal Year 2009-2010.  Motion carried and ordered unanimously.

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to adopt Resolution recognizing the following teachers in District 1 who are retiring:  Ms. Margaret Blawn, Ms. Carol Cowgill, Ms. Mitzi Frazier, Ms. Debbie Grimes, Ms. Patricia Haynes, Ms. Patricia Kingery, Ms. Jane Scott, Mr. Lance Wallace, and Ms. Charlotte Watkins.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to appoint Josiah Snodgrass-Neal  to  the  Art  in Public  Places  Advisory  Committee,  with  term expiring December 31, 2009; Giacomo Ilardi to the Library Board, with term expiring December 31, 2009; and Beth Scheiner to the Port St. John Public Library Advisory Board, with term expiring December 31, 2009.  Motion carried and ordered unanimously.

 

 

 

Commissioner Infantini advised she has been working with Natural Resources Management Director Ernie Brown to try to resolve the issue; the question is whether or not the Board should accept a $2,500 per-year contract with the FDEP; when she did the calculation it works out to $2 per year, per square-foot; and she thought that was a little low, given the occupancy is not that currently.  She stated since the Board is looking at revenues, it would be a way to increase revenues and help share the distributive costs with the State of Florida; and that is why she pulled the item.

 

Mr. Brown stated the particular lease agreement is low; the County only charged FDEP $625 per quarter throughout the year; this has been in place for a number of years; and it was designed to address what Natural Resources Management dealt with as far as maintenance and utilities costs.  He stated he appreciates Commissioner Infantini’s inquiry on the item because it actually helped staff identify other issues that probably need to be wrapped up into this item; for example, the property is not insured; it is a historical building acquired by the County in 1979 with a reverter clause that says it must be used for certain purposes; and if it is not used for those purposes then it goes back to the Trust that transferred it to the County.  He stated based on Commissioner Infantini’s inquiry, staff would like to explore a more appropriate real cost of the lease; staff would like to extend the lease to October 2009, which would allow time to figure out what those costs are and go back and actually address the full-year lease with them in October; and it would be just an extension to allow them to continue on for that period of time.

 

Commissioner Infantini inquired if FDEP is handling the costs, will they handle the replacement cost insurance.  Mr. Brown replied he thinks that needs to be done because staff needs to look at the real costs associated with it; and while staff is not out to make a profit, it needs to make sure all costs are covered associated with it. 

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to execute Amendment No. 1 with Florida Department of Environmental Protection for lease of the Environmental Field Station, located at 3783 N. Indian River Drive, Cocoa, between Brevard County and the FDEP OCAMA, through October 1, 2009; and authorize staff to negotiate the Agreement.  Motion carried and ordered unanimously. 

 

 

Commissioner Fisher stated the Board received the Comprehensive Annual Financial Report that was dated the end of March from the Clerk’s Office; the fiscal year ended September 30, 2008; the Board is looking at audit financials that are six months old already; and stated he does not quite understand the entire process.  He stated for the Board to make good decisions it seems like the timeline needs to be shortened of when the data of audit financials are received; stated he does not know if there needs to be a task  force  or not,  but if the Board is  looking  at numbers that are six months old, that is not long enough to make good solid decisions; and he would like to direct staff to figure out a way to get the document prepared quicker on the County and the Clerk side.

 

Chairman Nelson inquired if there is a way of accelerating the process to get the Comprehensive Annual Financial Report (CAFR) sooner.  Steve Burdett, County Finance Director, stated the information in the CAFR is readily available at any time; the process of getting it done is through working with Board departments and that has gotten better; County Finance had it completed a couple of weeks sooner than last year; but the information in the CAFR is readily available at any time, it is just not audited and attested to as of yet.  He noted the due date set by the State is the end of March if the Board wants it done quicker, County Finance could hire more staff to get it done quicker, but that will cost the Board.  Commissioner Fisher inquired if the information is already in the system, why does it take six months.  Mr. Burdett replied there is time required for County Finance staff to make adjustments to comply with accounting standards; information has to be gathered from departments; there are actuary reports that have to be worked with the County’s health insurance; and there is a lot of information coming from many sources other than County Finance that makes the information final.  He stated staff cannot just print out a report at the end of September and say it is the financial information because the auditors would never sign off on it; and adjustments have to be made.  Commissioner Fisher inquired if the report could be made in December.  Mr. Burdett replied in early January staff was able to give the Board the carry-forward numbers; the accounts were closed out; and all that was left to do was to put it in its current format, but the numbers were given to County Management in mid-January as to what the carry-forward numbers were for each fund and each department. 

 

Commissioner Fisher stated he is just trying to figure out how the Budget Office staff and the County Finance staff can get together prior to six months after the fact and give the Board numbers that everyone is willing to certify.  He inquired if there is something County staff can do to help speed up the process; and if there is something that can be done in the Clerks Office to speed it up, other than hire employees.  Mr. Burdett advised speeding up the process is only going to generate a pretty report; the department’s numbers are finalized by the end of December; if a department wanted to know what their excess was, or what their balance was at the end of the year, all they have to do is call County Finance; and staff sends out information that departments can plan on.  He stated as far as the report for the Board to look at, as a reader, no it is not complete yet; if the Board would like staff to do a cost analysis to see what it would take to get it out two months earlier, then that can be done; but it might be better to find out what the real improvement would be if it is received two months earlier.

 

Commissioner Infantini stated she has been working a great deal with County Finance in trying to get numbers and extrapolate information, and they have been  very helpful; and inquired if there is specific type of information Commissioner Fisher would like to have in an earlier timeframe.  Commissioner Fisher inquired what kind of decisions could staff make and advise the Board without the report in hand; and inquired if the numbers available in December are considered by staff to be the actuals.  Interim County Manager Stockton Whitten replied no, the issue is that the numbers are pretty much finalized;  staff is not going  to bring  those numbers to the  Board; it is a matter of getting the Board the supplemental budget and the finalized numbers quicker; and he can sit down with Mr. Burdett and work on a way to help improve the process; but the benefit for the Board is that it is going to finalize the previous fiscal year earlier and it is going to know how good or bad staff was on the balance forward projections; and it helps to have that information sooner rather than later. 

 

Mr. Burdett advised those are the numbers that are given in mid-January; the Board does not have to wait for a Comprehensive Annual Financial Report to feel any sense of comfort with those numbers. 

 

Chairman Nelson inquired how difficult it would be for Mr. Burdett to do an analysis to see what it would cost to get the CAFR quicker.  Mr. Burdett inquired how much quicker would the Board like the report.  Chairman Nelson replied as soon as possible.  Mr. Burdett stated that can be done; but he will probably come to the Board for more professional staff.  Chairman Nelson stated if it does not cause too much additional work, to know what that number is would be beneficial, so that way the Board will know what the ramifications are.  Mr. Burdett stated he can do that.

 

Motion by Commissioner Infantini, seconded by Commissioner Fisher, to acknowledge the Brevard County Comprehensive Annual Financial Report (CAFR) for the fiscal year ended September 30, 2009; and direct staff to prepare an analysis to determine the cost of receiving the CAFR in a more timely manner.  Motion carried and ordered unanimously.

 

 

 

Greg Eddy stated she is with Golden Retriever Rescue of Mid Florida, which is a non-profit organization in existence since 1991, and incorporated in May 1997, all in compliance with the selection process for the Animal Welfare Working Group.  She advised she is present to implore the Board to open the position of Director for Animal Services and Enforcement; the Board needs to put a stop to the continuing cruelty at SACC and NACC; despite the efforts of concerned citizens, this has continued; by Mary Burley’s own admission, they are only guessing at the weight of animals that are being euthanized; and that does constitute cruelty.  She stated the outbreak of distemper continues, exposing incoming animals and even adopting out and exposing the entire community; any measures taken at the shelter are sloppy at the least and will not be resolved under current management; and animals are still lying on the cold wet floor in their own feces and are at risk of further illness.  She stated it is time to take the proper steps  to   rid  the   community  of  distemper  and  cruelty  that  continues  under  current management; there is an incredible opportunity for the Board to set a precedent and make the taxpayers of Brevard County proud.

 

Chairman Nelson inquired if Interim County Manager Stockton Whitten has talked with some of the other Commissioners about filling the position.  Mr. Whitten replied yes, staff is going to update the Board on where it is; hopefully, the Board is going to pass the assessment  that will be conducted by the  University of Florida; and that,  along with the Advisory Board and opening up the director’s slot will be on the update for the week.  He stated Ms. Eddy mentioned the Shelter Manager; the position that will be advertised is for the Animal Services Department Director. 

 

Commissioner Infantini inquired when the Director position will be posted; with Mr. Whitten responding it will be done this week.

 

Commissioner Anderson stated his issue is if the Animal Welfare Working Group comes back and the Board is going to defer the shelters out to a private organization or restructure it, then the Board will have hired a Director that is only going to oversee enforcement, which he does not think is prudent in this tax time; and the Board is under no State Law to maintain an animal shelter.  He noted the Board is under State Law to enforce dangerous dogs; with a 20 to 40 percent reduction in the budget, he does not think the Board should be looking at the Director position until the Board gets to that point in the budget process; and the Board may not need that person.

 

Chairman Nelson stated he does not know that the two are necessarily tied together because whoever does enforcement can also have the skills of overseeing the shelter; if the Board privatizes the shelter, someone still has to manage the contract; someone from the County has to be able to walk in and observe and make sure all the requirements are being followed that the Board may place on them and that they are running the shelter appropriately.  Commissioner Anderson inquired if that is a director-level position.  Chairman Nelson stated the enforcement side, alone, drives that because that is the biggest part of the budget and the most labor intensive because it has the most personnel; and he does not see there will be a difference in terms of what has to be compensated for those positions, as it is a common skill that should be required for that person. 

 

Commissioner Anderson stated the reason he mentioned it is not because of the animals; the Board has reorganized other departments and laid off a lot of people; and hiring a director is hard to justify to those people who are unemployed or who are also his constituents.  Chairman Nelson stated he would agree with Commissioner Anderson, but unless the Board can get rid of the enforcement piece of the service, he does not know how the Board would deal with it otherwise, because the Board needs to have someone that can do that; and the shelter operation is a skill in which carefully selecting someone can come with it at the same value. 

 

Commissioner Fisher inquired who is currently in the position and what is the history.  Mr. Whitten advised there is currently an Interim Director; there are many balls in the air in regards to Animal Services; there have been some improvements; and he knows the issues  are very emotional,  but  progress has been made.   He stated today the Board is going to establish the Animal Welfare Working Group; hopefully, the Board will approve the University of Florida coming in to do an assessment of the shelter operations; and also, two meetings ago, the Board authorized staff to issue an RFP for shelter operations.  He noted there may or may not be an entity that wants to come in and give the Board a good proposal for operating the shelters; it is only an advertisement to fill the Director  position  as  the  classification  currently  exists;  staff  is  continuing  to  look  at consolidation in the budget process where possible; and a lot of it is going to depend on what the Board gets back in terms of the proposals for operating the shelter. 

 

Chairman Nelson stated it is critical to have a person onboard to work with the Working
Group because that is how it classically works best; and otherwise, there is a disconnect between the operation and the citizenry that is going to help.  Commissioner Infantini stated she agrees with Chairman Nelson; right now the Board has someone who is trying to do the best they can with the skill set they have, but if someone does not have the skill set necessary it is going to be hard to work with the Working Group; and if there is a qualified person as the acting director, the Board may find it does not have to put certain things out to bid, and the Board may be able to save money. 

 

Commissioner Bolin stated it would be good to advertise the position; but she wants to make sure the Board makes the description of the duties so that if it goes to just the enforcement, then that person does have the skill set for that.  Commissioner Anderson stated he does not want to set someone up for failure.  Chairman Nelson stated the reality is that the Board has not yet made the decision to privatize shelters; that is still a possibility; but if it does, that person is still going to have to manage the contract and if the contractor does not work out, the Board is going to be back in the business; and having someone who understands that process and can monitor it works out.  

 

 

 

Robin Lovejoy stated for 15 years she has owned house rabbits; stated a SACC volunteer contacted her regarding deplorable conditions within the shelter; after seeing the poor condition of the rabbits themselves, inappropriate housing and location, and lack of basic nourishment, she felt drastic action was needed in order to save their lives; and she had no alternative but to remove the rabbits from the shelter by adopting in order to restore their health.  She noted she has adopted 11 rabbits from SACC, all in poor condition; five have been fully rehabilitated, spayed, or neutered, and adopted; and the remaining six are currently receiving medical care.  She stated she finds shelter management to be evasive, unapproachable, and incompetent; stated Ms. Burley appears to be under the false impression that she can operate SACC on a whim; procedures and protocol are arbitrarily followed, provided they suit Ms. Burley’s needs; accurate and reliable record keeping is not a priority; there are visible signs of abuse and neglect; healthy animals are needlessly put at risk due to exposure to sick animals; unneeded euthanasia is common; and inhuman euthanasia is still practiced.   She stated the Board is aware of the owner-surrendered 11-month Lop Rabbit, Dumplin; she was rescued from the euthanasia room after Ms. Burley labled her as aggressive and sentenced her to die; the fact that Dumplin had not been fed or given water since her arrival 24 hours  prior,  seemed to escape  management’s attention; and inquired if it can be concluded when the six-pound fuzzy little rabbit ran over and started chewing on the bars of her cage desperate for food, that management was terrified beyond belief.  She stated the reaction from SAC has been nothing short of cold indifference; few are willing to learn and few care; her humble observation is that if Ms. Burley devoted 50 percent of the energy she has been expending doing damage control trying to cover her and her staffs elective backsides, the welfare of the animals of SACC would be immeasurably improved; and in her opinion, Mr. Bowen is a bundle of mixed messages and misinformation.  She stated one minute Mr. Bowen writes her that trust must be earned, then in the next email her tells her she will just have to trust him; and with all due respect, Mr. Bowen cannot have it both ways.  She stated it is imperative that Mr. Bowen understand his chosen course of action as Interim Director of Brevard Animal Services affects the livelihood of defenseless animals, not weather grass is too tall or a camper is parked in front of a house.  She noted Brevard Animal Services and Enforcement, including Animal Control, and SACC is in direct violation of Florida Statues that pertain to cruelty to animals; therefore, she is before the Board to show support for its decision to open the position of Director for the process of interviewing and hiring an qualified individual with experience in the field of animal welfare and shelter management; and she also respectfully requests the dismissal of Mary Burley as Manager of SACC; her lack of compassion, ineffectual management, reluctance to follow established protocol, and procedure, as well has her unwillingness to utilize the resources available to her, has rendered her unfit for the position.   She stated the Board has available to it a wealth of support from concerned citizens, volunteers, and rescue organizations, and the Board needs to take advantage of their abilities, enthusiasm and compassion, and make BASE an effective and efficient department, as well as providing SACC with an opportunity  to become what it should have been from its inception, an animal care center.

 

 

 

Nicholas Stack stated he was present last week for the tour of the South Animal Center with Mr. Whitten and Commissioner Infantini; by now he is sure the Board has read the accounts from the other people who were there; but the things he saw that day make it obvious that what is needed is a director who has animal experience, as well as enforcement experience; and he is happy to hear the position is going to be opened.  He inquired where is the volunteer coordinator the Board directed to have opened a couple of months ago; he thought that was going to be a great thing at that time; stated Ms. Burley does not know what happens to the applications after they go to Sarno Road, but it is his understanding there have not been any new volunteers.  He stated the Board and the citizens deserve to have a volunteer coordinator and volunteer hours that could potentially save money for the budget. 

 

 

 

Jenny Peterson stated she is the owner of Apollo, which is a ferret that was brought into SACC on January 18, 2009; and he is the ferret who had a story written about him called, “Ferret Fights for Survival”.  She stated if the two ferrets, Apollo and Zeus, would have  been  properly  housed  away from the dogs,  she  feels  Apollo would have  never contracted distemper; she contaminated her entire house even though the two were quarantined from her others; by the time Apollo started showing signs of distemper on February 14, 2009, her others had already been exposed; and Apollo died February 22^nd.  She stated by management not having the proper knowledge that ferrets can catch distemper from dogs, she lost five her other ferrets, named Sprocket, Kudo, Maggie, Baxter, and Jesse; she is devastated because of it; she has many vet bills left to pay as well as lost wages from her job; and she has to wonder how long did management know about the distemper outbreak.  She inquired about the dogs and cats who were adopted and died that no one knows about; and inquired about the animals that survived but infected the animals they came in contact with at their new home.  She stated the community is being put at risk; shame on the shelter personnel who are supposed to be in charge for allowing this to happen and for allowing adoptions knowing this was happening; she feels positive changes can be made to the facility, but only with the right people in place; the management in place now are not the ones who needs to be there; and she has offered her help with ferrets, but she has never been contacted.  She stated she is willing to find adoptable homes for the adoptable ones, and to care for the unadoptable ones, as that is what she does; the animals have a voice today; and today she has six of them that she is speaking for. 

 

 

 

Holly Gann stated she is founder of Voices, an anti-animal cruelty group; she was also on the tour at the South Animal Care Center with Commissioner Infantini and Mr. Whitten; what she saw shocked her; she witnessed dogs with no access to water; she also saw dogs that were cold because they had no way to escape the cold wind; and it is clear that Brevard Animal Services is in need of a new director.  She stated she would like to thank the Board for putting so much time and energy into dealing with Animal Services, but the animals cannot continue to wait; and action must be taken.  She stated she supports the opening of the position of director; she believes that with the right director, big changes can happen for Animal Services in Brevard County.

 

 

Chairman Nelson called for a public hearing to consider a resolution modifying EMS Resolution No. 03-227, Proposed Increases to EMS Billing Rates.

 

There being no objections heard, motion was made by Commissioner Anderson, seconded by Commissioner Bolin, to adopt Resolution No. 09-065, modifying Resolution No. 03-227, reflecting new ambulance billing rates as follows:  BLS $501, ALS1 $541, ALS2 $627, and mileage $9.18.  The Board further approved that the Resolution will also include language that states that if, in the future, the Medicare reimbursable increases above any established billing rate, that the billing rate shall be adjusted to match the Medicare reimbursable rate.  Motion carried and ordered unanimously. 

 

 

Commissioner Infantini stated she would like to get a break down of the costs; and it appears the Board is going to be authorizing to spend more money.

 

Don Lusk, Parks and Recreation Director, advised the Agenda Item solidifies a change in direction on the Chain of Lakes Project, which was agreed to by the County’s partners, which includes Parrish Medical Center, Brevard Community College, St. Johns River Water Management District, Office of Natural Resources, and Parks and Recreation; and the change in direction was necessary based on postponement of the heritage village concept, which was due to funding and the current economic situation.  He stated there is still a need to provide connectivity to the health village to provide connectivity to the Parrish Medical Center Project and a requirement for the lake expansion that still needs to be done for St. Johns River Water Management District; the Agenda Items consists of execution of amendment with BRPH, which is additional dollars that need to be spent; but it is also a determination of a Change Order with Star Base of $2.4 million; and the plan at this point in time is to spend that money on redesign.  He stated one engineers estimate is that the Board will save at a minimum, $400,000 to $900,000 on the low side, and possibly up to $1 million on the high side in terms of savings.

 

Chairman Nelson stated in a nutshell, the redesign will cost the Board a little more money, but in the long run it saves the Board money over what was originally going to be constructed; and it is a net savings to the project.  Commissioner Infantini inquired how much is left to complete the project; and how much has the Board spent to date.  Mr. Lusk replied he does not have that number off the top of his head, but when Commissioner Fisher came to his office they went over every one of the projects that were still open and allocated the dollars that were left over those projects; and he can say with certainty there is money there, but he cannot give the Board the numbers at the moment.  He noted he would be happy to correspond offline with Commissioner Infantini and show her the information.  Commissioner Infantini stated before she understands the Board is going to save money, but she cannot save money she has not spent, so it is still going to cost her money; and she wants to make sure the money is available in the Parks and Recreation budget.  She stated she has not gone to Mr. Lusk to ask for that breakdown, but she would like to see that for all of Parks and Recreation to know there is funding available and the management budget to complete the projects.  Mr. Lusk advised the best he can do today is tell the Commissioner the money is there, and he would be happy to sit with Commissioner Infantini later and explain. 

 

Commissioner Fisher stated what happened was that there was a certain design that was already on the books to be designed; Parrish Medical Center Health Village was going to look over a lake at a certain location in the Chain of Lakes; North Brevard Heritage Village was also going to be situated around that lake; but to build that lake was going to be very expensive.  He stated one of the issues was where the funding would come from to do the improvements to those heritage homes; the dollars had not been identified at that point in time to do that; it looked like the dollars were going to come in the future; and Parrish Medical Center, through their Health Village, decided that if the lake is not expanded in that way, it may not want to put their facility there.  He stated Parrish Medical  Center is not  going to locate the Health  Village  there  and the  College does not have any identified funding to help the Health Village, so the County was going to design a lake that was going to cost approximately $1.5 to $2 million; in working with the partners he realized the Board was getting ready to spend money it really did not have to spend; if the project can be redesigned, Parrish Medical Center and its donors wanted to move their Health Village to another location; that was going to be a net savings in the Parks and Recreation Department of approximately $400,000 and $900,000, but he thinks it would be more than that.  He stated staff is asking the engineer to redesign the lake; but the Board is going to save by not putting the lake where it was; and it makes sense for the Chain of Lakes.

 

Commissioner Infantini inquired what is the cost to cancel the contract, because she sees staff is also cancelling a $2.4 million contract; the same thing happened in the South Beaches; and she is just trying to avoid a duplication of cancelling contracts and paying off people.  Mr. Lusk stated in this particular case there was no notice to proceed issued; staff believes there are no costs that can be recovered by the engineer; however, staff worded the Agenda Item the best it could because as the conversation closed, the engineer felt he was owed some money; and staff is still in conversation with the engineer, but he has not produced anything in writing that would allow staff to say he had a valid claim; and based on the legal review and staffs review, he does not believe there is a claim there.

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to authorize the Parks and Recreation Department to proceed with a redesign of the Lake Expansion at Chain of Lakes; authorize the execution of Amendment No. 20 with BRPH Architects-Engineers, Inc. for design services for a not to exceed $115,500; and authorize termination of the $2.4 million dollar change order with Star Base Development, Inc. for construction.  Motion carried and ordered unanimously. 

 

 

 

Chairman Nelson called for the public hearing to consider an ordinance amending Section 106-73, Operation of Golf Carts.

 

There being no objections heard, motion was made by Commissioner Bolin, seconded by Commissioner Infantini, to adopt Ordinance amending the Code of Ordinances of Brevard County, Florida, Section 106-73; authorizing renumbering of Subsections (3) through (10) to Subsections (1)(a) through (h); authorizing the renumbering of Subsection (1) through Subsection (2) and clarifying Prohibition of Operation of Golf Carts on County Roads/Streets unless so designated for operation as further provided; authorizing renumbering of Subsections (1)(a) through (c) to Subsections (2)(a) through (c); authorizing renumbering and combining of Subsection (1)(d) and Subsection (2) to Subsection (2)(e) and amending new Subsection (2) to further provide, in addition to current designated streets/roads for authorized use, that the portion of Jordan Blass Boulevard   running   north  and  south  up  to  and  including  the  pedestrian  crosswalk,

adjacent to the Suntree Planned Unit Development shall be a designated street/road authorizing operation of golf carts to travel the most direct route between the operator’s residence and Suntree Elementary School; authorizing inclusion of St. Andrews Circle between the Suntree PUD and up to and including, the intersection of St. Andrews and Portage Trail/Melrose Place and the roads/streets within the Sawgrass and St. Andrews subdivisions as designated roads/streets; authorizing a new Subsection (2)(d) providing for designated roads/streets in the Central Viera Planned Unit Development, west of I-95, and designated crossings on other specified roads/streets; authorizing renumbering of Subsection (1)(e) to Subsection (2)(f) and amending such provision to authorize, in addition to current authorized use, that portion of Barefoot Bay Boulevard east of the Barefoot Bay Subdivision to the intersection of Barefoot Bay Boulevard and the driveway entrance to the shopping area at 7960 U.S. Highway 1, Sebastian, Florida, shall be a designated road/street authorizing operation of golf carts to travel between the Barefoot Bay Subdivision and 7960 U.S. Highway 1; providing for severability; providing for inclusion in the Code of Ordinances of Brevard County; providing for conflicting provisions; and providing for an effective date.  Motion carried and ordered unanimously.

 

 

Chairman Nelson stated he has some safety concerns; and he would like staff to monitor the success and/or problems associated with the Ordinance.

 

 

Chairman Nelson called for the public hearing to consider an ordinance amending Chapter 62, Land Development Regulations, Article IX, Signs.

 

There being no objections heard, motion was made by Commissioner Bolin, seconded by Commissioner Infantini, to adopt Ordinance of Brevard County, Florida, amending Chapter 62, Article IX, Signs of the Land Development Code of Brevard County, Florida, specifically amending Section 62-3302, Enforcement; amending Section 62-3303, Purpose and Applicability; amending Section 62-3305, Removal of Illegal or Abandoned Signs; amending Section 62-3306, Permits Generally; amending Section 62-3310, Construction Standards; amending Section 62-3316, On-Premises Signs by adding special sign criteria for the North Courtenay Parkway Corridor and establishing overlay districts defining sign criteria for said districts; amending Section 62-3319, Waivers and Appeals; providing for codification; providing for severability; providing for area encompassed; providing for Resolution of conflicting provisions; and providing for effective date.  Motion carried and ordered unanimously. 

 

 

 

Chairman Nelson called for a public hearing to consider a resolution vacating Public Utility Easements lying between Lots 17 and 18, Block 145 in Barefoot Bay Mobile Home Subdivision, Unit Two, Part Ten, Barefoot Bay Realty, Inc. (Shaw).

 

There being no objections heard, motion was made by Commissioner Fisher, seconded by Commissioner Infantini, to adopt Resolution to vacate public utility easements lying between Lots 17 and 18, Block 145 in Barefoot Bay Mobile Home Subdivision.  Motion carried and ordered unanimously. 

 

 

Chairman Nelson called for public hearing to consider a resolution vacating public utility easements lying between Lots 13 and 14, Block 94, in Barefoot Bay, Inc. (Graham).

 

There being no objections heard, motion was made by Commissioner Bolin, seconded by Commissioner Anderson, to adopt Resolution to vacate public utility easements lying between Lots 13 and 14, Block 94 in Barefoot Bay Mobile Home Subdivision.  Motion carried and ordered unanimously. 

 

 

Richard Martens, Utility Services Director, advised last year, the Snug Harbor Master Association approached the Board requesting permission to purchase two former treatment plan sites in their community that had subsequently been abandoned and decommissioned; there was a lengthy process involving polling the community; the former Board instructed staff to go out and negotiate and bring a contract back to the Board to execute that purchase; and the contract is finished and is before the Board today.

 

Mortimer Rothstein stated he had lived in Snug Harbor since 1997; he has had many meetings with staff about the problem; and he would like to know if State Law or County law prevails.  He stated Snug Harbor is a State mandated condominium association with 399 condominium units; the master association is the maintenance arm; and Snug Harbor Village is not on the deeds and do not own anything. 

 

Chairman Nelson stated Mr. Rothstein raised some concern related to the ability of the homeowners  association,   or   condominium   association,  to  actually   enter   into  the agreement; and inquired if staff has reviewed that issue.  Mr. Martens replied it has been a topic of discussion, but he subject item is a cash sale to the County; and how the association finances it internally is their deal.  Chairman Nelson stated it comes down to the County selling the property for cash and it becomes a civil matter among the associations. 

 

Theodore Wood stated he lives in the Snug Harbor Lakes Condominium; and he is against having to subsidize parking spaces for someone else’s recreational vehicles.  He read, “The Snug Harbor Village, which operates as a not-for-profit corporation under Florida Homeowners Statutes, is zoned TR-1, and is not required to have a recreational area; the Snug Harbor Lakes Development, which is zoned TR-3, must have a recreational area.  Within this development is the Snug Harbor Lakes Condominium, a not-for-profit association of private property owners operating under Florida Condominium Statutes.  This development also includes property owners who do not belong to the Condominium. Because of it’s mixed use, Snug Harbor Master Association operating under Florida Homeowners Statutes was created to manage the roads and mandated recreational areas that were deeded to it by the developer.  The restrictions associated with the deed stipulate that the recreational amenities are for the exclusive use of Snug Harbor Village and Snug Harbor Lakes property owners.  The deed restrictions also state that the Master Association must comply with the applicable rules and regulations spelled out in the Condominium documents.  Chapter 10.2.1 of those documents state that no property may be acquired or no alteration of the basis of expenses may be made without the written consent of the property owners.  Neither the Master Association or the Village property owners pay the taxes on those recreational areas; the condominium property owners are the only one’s who are taxed for the recreational amenities; the Master Association was not organized for the purpose of promoting community interest and welfare as required by Florida Statute 125.38, which addresses the conveyance of a County property without advertising.  Conveying of the property to the Master Association may be in violation of that Statute.”  He stated if his interpretation of what he read in the government sunshine manual is correct, then the meetings which took place between the Master Association and the Brevard County agencies without public notification, and which meeting caused an action to take place, would have been in violation of sunshine law; and if that is the case, then those actions must be vacated. 

 

Generita Aldrich stated most of what the Board just heard was answered during the first round that led the residents to this point; the legal issues were address by the County Attorney and the attorneys for the Snug Harbor Master Association, of which she is now the president; and previous Commissioner voted to accept the offer, or at least allow it to move to the point where it is today, which is with the purchase and sales.  She stated if one of the non-joining residents were granted permission to park their recreational vehicle in the compound, that would be a violation of the deed restriction when in fact they are a resident; and if the non-joiners are going to be allowed, what would happen to the owners who rent their property. 

 

Aleta Hirschfeld stated she lives in Snug Harbor Lakes; she spoke before the previous Commissions on numerous occasions; but today she is before the Board to talk about Snug Harbor and the purchase of water and the old water and sewer facilities.  She stated there have been numerous workshops and surveys by the residents and the County water company; the majority of the residents want the community to buy the old water and sewer plant to use as a RV and boat storage area; the residents now rent the property from the County for that sole use; and she does not understand why a few disgruntled residents can cause so much havoc.  She stated the majority of the residents want to purchase the property; and she is urging the Board to vote yes for the completion of the sale.

 

David LaFavor stated he is the Vice President of the Snug Harbor Master Association; it is obvious there has been strong community support throughout the associations endeavors to pursue the purchase for the last two years.  He stated early on, the Association consulted its lawyers, who assured the Association it had the legal right to make the purchase; and the County Attorneys also agree it is a legal purchase.  He stated the group that has been opposing the purchase have been relentless in their efforts to prevent the sale from happening; and the latest round is merely a stalling tactic where they hope if things can be stalled long enough, the residents agreeing to finance the sale may get sick of holding their money in advance and withdraw their offer.

 

Commissioner Infantini stated she appreciates Mr. Woods and Mr. Rothstein’s comments, but when she went to the community she met 116 individuals from Snug Harbor and she found that those two gentlemen are not the majority of the population as far as the acquisition; she met with Mr. Martens and went over the specifications; and it seems like the best opportunity for the community to have this acquisition to finally take place. 

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, convening as the Governing Board of the Barefoot Bay Water and Sewer District (BBWSD), to adopt Resolution, execute Contract for Sale and Purchase, Addendum, and Deed with Snug Harbor Master Association, Inc. (SHMA) for the transfer of two parcels of real property, which are former water and wastewater treatment plant sites, to SHMA at a sale price of $150,000 “as is” with stipulations, and with all closing costs paid by SHMA.  Motion carried and ordered unanimously.  

 

 

The Board recessed at 3:03 p.m. and reconvened at 3:37 p.m.

 

 

 

Heidi Denis, Assistant County Manager, requested each Commissioner circle one name in each of the columns, the non-profit incorporated animal shelter member, a non-profit incorporated   animal   rights   group   member,   and  a  non-profit   incorporated  animal enthusiast or rescue group member; there is also a Florida Certified Veterinarian or Veterinarian Technician; and a member at large from each District.  Commissioner Infantini inquired if the Board can choose one, and two, and three per-category, because the problem is if the candidates are in more than one category and they do not win in one category, she will put them as first for category two.  Ms. Denis stated she would defer to the Chairman.  Commissioner Infantini stated it may be easier for the Board to vote for one column first, then the second column.  Ms. Denis reminded the Board that the two highest scores in the first column will be picked because there are two members in the animal shelter or placement organization.

 

Chairman Nelson stated staff will tabulate the votes and the Board will return to the item.

Chairman Nelson called for a public hearing to consider revisions to Merit System Policy II, Pay Plan, Policy V, Probationary Periods, Merit System Policy VIII, Holidays, and Merit System Policy IX, Leave.

 

Commissioner Infantini stated she does not want to move forward with the revisions; her suggestion is rather than moving forward with the Merit System as is, she was told if she could just find $1.5 million she could save a lot of jobs; and instead, she found over $2.5 million.  She stated the way she found the money is that if the Leave Policy is changed to mirror the Clerks Office, whereas instead of getting 12 vacation days and 12 sick days per year, just have 12 days of Universal Leave days per year; and that would cut the Leave Policy in half, which adds up to approximately $3 million.  She noted if that was implemented for the remaining part of the year, then it would save at least $1.5 million; and if the Board can save money by doing that, it would cut down on some of the job losses the Board has been worried about.  She noted the Board paid former County Manager Peggy Busacca $20,552 in annual accrued leave, and $52,477 in sick leave; and she thought that was a bit much.  She stated also, if the Board caps off sick leave at 999 hours, it would also be a great way to save money and benefits.

 

Human Resources Director Frank Abbate stated the Merit System proposed revisions are provided to the Board for its consideration because the Board has had a long standing policy that non-union employees should be treated in a similar fashion to the bargaining unit employees; the changes before the Board today are consistent with the changes that the Board ratified earlier in the meeting, which are effective for the LIU Blue Collar Employee Unions; if the Board wishes to consider changes to either the leave policy or accumulation or pay out, that is the Board’s prerogative; but the reason staff submitted the changes was to maintain consistency between non-bargaining unit and bargaining unit employees; and that is why the revisions are presented to the Board today.

 

Commissioner Bolin inquired if Commissioner Infantini’s proposal is also for the union employees.  Commissioner Infantini replied it  would  be for  everybody; but  she realizes the Board would have to go back and renegotiate the contracts with the unions; a lot of people have expressed that the Board should not cut police officers’ pay or teachers’ pay, or fire fighters’ pay, but instead the Board is being asked in a later Agenda Item to cut a lot of jobs; and if she cuts a lot of benefits for everyone across-the-board, then that saves a lot of jobs and money.  She stated if everyone took a benefits cut instead of a pay cut, they would still have their jobs and earn a paycheck; and she would like to propose it to the Sheriff’s Department and all the other departments as well.

 

Mr. Abbate stated if the Board wanted to do that across-the-board, there are 650 in the blue collar LIU unit, and 450 in the IFF, and earlier today the Board ratified contracts with both of those units that are multi-year contracts; so any changes cannot be imposed until negotiations are reopened; and that is an issue for the Board’s consideration.

 

Commissioner Infantini stated going forward, it is something the Board can look at, but it does not have to grant additional benefits; the Board is extremely generous; and given the opportunity to keep one’s job, or an extra 12 days leave, she would opt for the job choice.  Chairman Nelson stated it does not save any money.  Mr. Abbate stated the provision dealing with Leave is providing pro-rated Leave for part-time employees based on actual hours worked, rather than a three-quarter or half-time employee; that is common among employers; and staff did that to provide consistency so that if an employee was brought onboard as a three-quarter time employee but are only working a 10-hour per week schedule, they would only earn their Leave on a pro-rated bases, per the provision, for the hours they actually worked.  He noted it would create substantial difficulty for staff administratively because it has been approved for the LIU unit.  He stated the second area of the revisions that would maintain a consistency between bargaining and non-bargaining is that if someone is a probationary employee in a promoted position, how long is the probation; and the revision would make it three months for both bargaining and non-bargaining unit employees.  He stated another provision deals with holidays; for the bargaining units, staff changed the birthday holiday to a personal day; and that would be consistent throughout the organization, but it does not change the number of paid holidays, which will remain at 11.

 

Commissioner Fisher inquired if the Leave is paid out when someone takes it, what kind of saving would there be if the change is made.  Mr. Abbate replied it depends what changes the Board is making; employees are only permitted to carry over a maximum of 240 hours of annual leave; the only exception to that rule is that when an employee is in their last five years of service, or before entering into the DROP Program, they are allowed to accumulate up to the State allowable limit of 500 hours.  He stated the other provision deals with Sick Leave; if the Board made a decision to eliminate Sick Leave as a Leave benefit, it would have an impact because with the payout, currently are entitled to 20 percent if past the probationary period, 30 percent if a vested employee but not retiring, and 50 percent if an employee retires under the Florida Retirement System; and there is an impact depending on the Board’s action.

 

Commissioner Infantini stated originally, when she did her calculation, she just went through the annual compensation the Board pays out, and she took off one week’s pay; if going  from 24 days  of Annual and Sick Leave  down to 18, it is about $1.5 million; but that included fire fighters, which she realized is skewed because they are not part of this unit; if it was dropped down to 12 and called Universal Leave, it could be used whether someone is sick or needs vacation time; and it would be a substantial savings.  Mr. Abbate advised Leave accumulation and what an employee has at the time of separation is not necessarily the same information because there are many employees who utilize their Leave and do not have any Leave available.  Chairman Nelson stated it is only a savings when an employee leaves.  Mr. Abbate stated there is one limited provision that says in the beginning of January, if in the course of the year an employee was prohibited from utilizing their Annual Leave and they go over the 200 hour accumulation, they may request from the County Manager to be paid out for that week; out of 2,400 employees, there were no more than one or two that were approved under that provision; and there were none in 2008. He stated that is the only additional issue on the financial side, which would be an actual dollar payout prior to separation of employment. 

 

There being no further comments or objections, motion was made by Commissioner Bolin, seconded by Commissioner Anderson, to approve revisions to Merit System Policy II, Pay Plan; Merit System Policy V, Probationary Periods; Merit System Policy VIII, Holidays; and Merit System Policy IX, Leave, in accordance with Chapter 82 of the Brevard County Code of Ordinances.  Motion carried and ordered; Commissioner Infantini voted nay.

 

 

 

Assistant County Manager Heidi Denis advised there is a tie for the second position in the non-profit incorporated animal shelter replacement organization; they are marked in pink; and she will give the Board back the ballots to pick one of the three and then she will tabulate them again.

 

Chairman Nelson stated there were many candidates; the Board looked at everyone’s background and did a lot of reading; and he is anxious to move on. 

 

Leon Sisson stated once the Group is selected, he encourages the Board to give it considerable authority to go into an animal shelter to see what is going on; and if the Group is going to work on behalf of animal welfare, it cannot be stonewalled in trying to find out the current status of the animals.

 

Chairman Nelson stated he would like to Group to look for a better way to deal with animals such as ferrets and rabbits, as that was never really the purpose of the shelters; and he would like to see if the Group can develop rescue groups that can help in that regard.

 

Mr. Sisson advised the Board already has a large resource of rescue groups in place in the County; and the groups could do more if they had more cooperation.

 

Chairman Nelson stated there is probably not a Commissioner on the Board that has not observed that the Board needs to work more closely and develop those relationships to meet both needs; there was a reluctance on the Board’s part; but that relationship needs to be developed; and the Board has to do a better job.  Mr. Sisson expressed appreciation to the Board for letting the rescue groups use the South Animal Care Center every couple of months to do surgery for spaying and neutering of homeless cats.  Chairman Nelson stated things will be a lot better as a result of the work the Animal Welfare Working Group is going to do. 

 

Ms. Denis advised after tabulation, there is another tie; and she is going to give the Board a new paper with the names.  She announced two members representing non-profit incorporated animal shelter or placement organization are Nicholas Stack and Teresa Clifton; member of a non-profit incorporated animal rights group is Anna Brown; member of a non-profit incorporated animal enthusiast or rescue group is Mary Bennell; certified veterinarian is Denise Van Cleefe; one member at-large from each District are Clara Mutter, District 1; Kelly Jo Strably, District 2; Fred Abbey, District 3; Lorraine Gott, District 4; and Scott Ellis, District 5.  She stated she will contact all of the Group members and get a meeting together as soon as possible; and at that point the Group will discuss setting up the bylaws and their procedures and policies.  She stated the Group already has a couple of items on the Agenda including an RFP and a Volunteer Program. 

 

 

 

Commissioner Bolin she had wanted Central Services Director Steve Stultz prepare a staff report on local preference in bidding; but in reviewing the information, and also the research that she has been doing, she has found there is a lot more to do on it; her staff has been getting in touch with commissioners from different counties, but have not been able to have phone conversations with any of them because of the holiday; and she would like to be able to have the Board look at the staff report but not take any action on it yet.  She stated she would like to continue the discussion at a later date.

 

Chairman Nelson stated continuing the item is a good idea; he is concerned that the secondary market for some of Brevard’s businesses is the Orlando market; Orlando is one pushing back with penalties for counties that have a local preference; and he would like to get more detail on what that means and to see if it is having impacts.  He stated it is an unintended consequence that he worries about, that the Board may benefit some locally, but it also hurts some businesses as a result of the action of local preference.

 

Commissioner Fisher stated he also asked staff to go back and talk to some contractors, both in the area and outside the area to see how they feel about local preference.  Chairman Nelson stated the Board wants to see business stay local; and he looks forward to the report.

 

 

Interim County Manager Stockton Whitten advised he has given the Board four options; number one is to renew the agreement for the four-year period as requested by the Property Appraiser’s Office; number two is to renew the agreement for a shorter term; number three is to direct staff to explore the feasibility and possibility of providing service with Board employees; and number four is to explore the feasibility of contracting with an external service provider.  He stated in the report, the Board will note that the Tax Collector had some concern with regards to her ability to take on the program and start it from scratch; and he has outlined her concerns in the report. 

 

Commissioner Anderson stated Option 3 is very attractive to him; he thinks the Board can do it in-house a lot cheaper and more effectively; he understands the Tax Collector is already assisting the Property Appraiser with IT support to complete the task.  Mr. Whitten advised for all of the non-ad valorem assessment rolls, it is the Taxing Authority that compiles and submits the roll to the Tax Collector; and the Tax Collector is the end of the process. 

 

Commissioner Infantini stated maybe for the first year the Board could go with a one-year term, if available; and if it is not available, then the Board can go with Commissioner Anderson’s suggestion of Option 3.  She stated she would agree with Option 2 for the first year, and Option Three for the subsequent years.

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to renew the Agreement with the Property Appraiser for development and maintenance of an Expanded Use Code for Non-ad Valorem Assessments for a one-year period; and direct staff to explore the feasibility of providing this service with Board employees.  Motion carried and ordered unanimously. 

 

 

Chairman Nelson inquired if there has been any discussion with the Property Appraiser concerning his willingness to actually enter into a one-year agreement.  Mr. Whitten stated he would have to ask the Property Appraiser.  Chairman Nelson stated the Property Appraiser would agree that everyone wants to do it cost efficiently; and by working with him, the Board will find out if it has the best deal or not.

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to execute Amendment to Agreement with Brevard County School Board, on behalf of Astronaut High School, to waive and delete Article IX.6 from the original Grant Agreement and allow the Brevard County School Board/Astronaut High School to resubmit a Request for Funds form and documents to receive a $60,419 reimbursement for installation of a polyurethane track; and approve the required budget amendments.  Motion carried and ordered unanimously. 

 

 

Ernie Brown, Natural Resources Management Director, advised on March 24^th staff was directed to ask the question of Pulte Homes as to what their price would be; and they provided a price of $3 million to sell the property subject to the approval of the sales contract and agreement by the Board.  He stated the purchase of the property occurred predominantly in 2003 and 2004 with one smaller parcel in 2005; the actual purchase price of the parcels was $6.82 million for a total of 249 acres; of the 249 acres, 51.3 acres are the actual developable portions of the land the County would be primarily interested in; and the rest of the land is a result of the necessary lands for mitigation for the wetland impacts and other impacts that were required for their original development design.  He noted the Property Appraiser’s market value, which he has been told is not a primary number yet, is currently listed at $4.47 million; the $3 million that was provided by Pulte Homes is approximately 43 percent of the purchase price of $6.8 million; and if the Board is receptive to those preliminary numbers, staff would ask that it perform due diligence as it relates to the environmental condition of the site, specifically before any final determination is made.  He noted due diligence requires some contract to be entered into so that staff can go in onto the property to perform the work.  He stated the $60,000 before the Board as an estimated impact not to exceed, is staffs estimate as to how much it would cost, plus the environmental due diligence to ensure the Board has the full extent of the information to make an informed decision as to whether or not to finally purchase.

 

Commissioner Infantini stated she saw on the prior Agenda Item it was estimated to be $10,000 for appraisals; and now it is $60,000 for appraisals and due diligences; and inquired why the due diligence costs $50,000.  Mr. Brown replied staff has enough information to know that there is probably some historical and old construction demolition debris on the site; there are a lot of unknowns associated with those kinds of materials; in order to bring sufficient information to the Board, he would recommend ground penetrating radar and then test pits and a well array to make sure staff can know and quantify what condition the property is in before it enters into a final agreement; and right now, staff just does not know.  He stated it is his desire to make sure the Board has all the information about the property before it makes the final decision to actually close on the contract.

 

Commissioner Infantini inquired if those services have to be acquired from outside technicians, or can the Natural Resources Management Office do those services.  Mr. Brown replied no, that is a very high liability issue and there needs to be a separate entity that has their own errors and omissions; and staff relies upon their information as a profession, and staff can pursue them should their information be inaccurate and results in damages to the County.

 

Chairman Nelson stated it is his understanding that since the last meeting, the State has now adopted the TMDL’s for this part of the river.  Mr. Brown stated that is correct.  Chairman Nelson stated the contract is timely because of the fact that the Board is going to have to meet those requirements; and if the Board does not move forward with finding lands to do this, then it will be up against it at a later date.  He stated should materials be found, it will be removed because the land is going to be a pond and material would have  to be moved  anyway;  and  ultimately,  if materials are found,  the  removal  would affect the property in a potentially downward direction based on the significance of what is found. 

 

Chairman Nelson passed the gavel to Vice Chairman Bolin.

 

Commissioner Fisher stated he is familiar with a property Pulte Homes sold for less than the value; it was in the sellers best interest in that scenario to donate the property because getting an at-value appraisal today gave them a bigger write-off than what they would have gotten for the sale price; and unless it is time sensitive, he would like to see if that might be part of the negotiation to work with Pulte Homes to see if they are really selling at a lower value, because it may be a bigger tax benefit for them unless they just really need cash.  Chairman Nelson inquired if Commissioner Fisher is offering himself up to do that; with Commissioner Fisher responding yes, he is.  Chairman Nelson stated he has no problem with that because Commissioner Fisher has some experience in that area; and inquired if the Board can appoint Commissioner Fisher as part of the negotiation team on the subject property.  Deputy County Attorney Shannon Wilson said she does not see why not.  Assistant County Manager Mel Scott advised staff had conferred with County Attorney Scott Knox on this point and as long as the Board directs Commissioner Fisher to act in that capacity, and as long as the County Manager’s Office does not see that in conflict with potential staff activities that would also be occurring, then he has the green light to go ahead.

 

Ms. Wilson stated if the Board is talking about a negotiating committee, which is essentially subject to the Sunshine Law, Commissioner Fisher will be somewhat restricted to how he can deal with staff on that topic; and that is one thing the Board may want to consider; but she does not know if it is considered in the Sunshine Law. 

 

Motion by Commissioner Nelson, seconded by Commissioner Anderson, to authorize staff to enter into a purchase contract with Pulte Homes for the expansion of the Fortenberry Road Stormwater Treatment Pond Project; and secure appraisals and perform the necessary environmental due diligence.  The Board further appointed Commissioner Fisher to negotiate the purchase of the property.  Motion carried and ordered unanimously.

 

 

Deborah Osling stated she is the attorney and agent for Hammock Landing; and she is present to answer any of the Board’s questions.

 

Commissioner Anderson stated the only question he received was from a constituent; and inquired if the credits are for offsite improvements; with Public Works Director John Denninghoff responding yes, it is not for any of the parcels that are remaining in private property. 

 

 

Motion by Commissioner Anderson, seconded by Commissioner Infantini, to execute Transportation Impact Fee Credit Agreement in the amount of $2,732,130.67 with the City of West Melbourne, PBR Community Development District; and West Melbourne Town Center, LLC for Hammock Landing/West Melbourne DRI; and authorize the Budget Office to implement all necessary budget changes.  Motion carried and ordered unanimously. 

 

 

 

Commissioner Infantini inquired how long is the site plan going to be extended; it was opened in October 2005; and inquired if the Board should cap it at some point.  Ed Lyon, Permitting and Enforcement Director, replied per Code, the Site Plan is valid for three years once it is approved; this site plan has only received one administrative extension, which the Code allows; and this is only the second request, but the first request is in front of the Board.

 

Motion by Commissioner Bolin, seconded by Commissioner Infantini, to grant a waiver of Section 62-3204(h)(3), to allow a six-month extension of time, from April 4, 2009 to October 4, 2009, to pay the fees and obtain a Certificate of Completion for the Casabella Site Plan, as requested by Make-Jake Development Company.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Anderson, seconded by Commissioner Fisher, to adopt Resolution and execute County Deed and Interlocal Agreement with City of Melbourne for the transfer of the portion of Turtle Mound Road Extension lying south of Aurora Road.  Motion carried and ordered unanimously. 

 

 

Commissioner Infantini inquired why a contract is being brought back to the Board to extend after it has expired; and it expired January 9, 2009. 

 

Ernie Brown, Natural Resources Management Director, advised Commissioner Infantini is correct in that it should have been done proactively; staff has been busy getting flood issues resolved; and staff did not realize it was coming to closure.  He stated FDEM has given staff the ability to renew it despite the fact that it has expired; and the grant itself as designed affects  Districts 4 and 5,  in looking  at some  of the older  data that was put together separately, and fusing it to make sure that any of the proposed improvements do not actually create a flooding environment for other people. 

 

Commissioner Infantini inquired how much more work remains on the contract.  Mr. Brown advised the grant is for a total of $182,000; $45,000 of it is local, and the rest of the funding is being provided by FDEM; and the work is approximately 50 to 60 percent complete. 

 

Commissioner Infantini stated the work was supposed to be completed within 200 days or so; and it looks like it was started in July 2007.  Mr. Brown advised that is when the Grant was provided, but staff did not actually enter into contract with the consultant at that time; and it was later in August when the work actually began.  Commissioner Infantini stated she worries about giving a contract to someone who is having a hard time completing their contract; and maybe the Board should turn it over to someone else who has the ability.  Mr. Brown stated the consultant doing the work has not been on contract since 2007 with the County. 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to execute Modification No. 1 of Hazard Mitigation Grant Contract Number 08HM-1G-06-15-01-024 with State of Florida, Division of Emergency Management (FDEM) for Brevard County Stormwater Utility Sarno Lakes Phase II Drainage Project.  Motion carried and ordered unanimously. 

 

 

Commissioner Infantini she would prefer to leave the Public Interest Determination the way it is currently. 

 

Ernie Brown, Natural Resources Management Director, advised the sole purpose of the request is because an applicant came to the County requesting a public interest determination for an emergency dredge situation; it took a month to get the applicant approval; as a result of that, the marina was shut down for a period of time; the applicant met all the criteria for a maintenance dredge, which by default if properly constructed and limited to what the policy is proposing, meets all the criteria and it could be administratively applied as a maintenance dredge, which is an exempt practice under the State and a nationwide permit under the Corps of Engineers.  He stated if those two things are received from the State and the Corps of Engineers, then it could simply be an administrative delegation for maintenance dredge only; it is not new dredge or anything beyond maintenance. 

 

Commissioner Bolin stated she understands that if they meet all of the requirements and if the Board does not have to have it come before the it, it streamlines the process, expedites for the citizens, and it is less government; and she thinks that is the way the Board should be going.

 

Commissioner Infantini stated she just wanted to make sure it was not going to be a block where County staff has the ability to block something rather than expedite; sometimes she is not anxious to turn over certain authority to County staff because the Board may be inclined to say yes, whereas staff may not; and that is her reason for declining the item.  Mr. Brown noted it is a valid point; but if applied the way it is written, it is not a matter of staff ability to deny it, it is a matter of ability for staff to approve it; and it is administrative approval if it meets the criteria, so the applicant does not have to wait for the public interest determination from the Board.  He added if for some reason staff would deny it, it would come to the Board anyway. 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to approve Policy BCC-00, Public Interest Determination Delegation for Maintenance Dredging, to delegate authority to the Natural Resources Management Director for the approval of maintenance dredging for both existing navigational channels and existing access to water dependent shore based facilities.  Motion carried and ordered unanimously. 

 

 

Commissioner Infantini stated she would like to deny the item.  Chairman Nelson stated he concurs with Commissioner Infantini; the Board increased the rate the wrecker companies can get on mileage when the gas prices were up; but now gas prices are down, so the wrecker companies are not being hurt in that regard; it is a difficult time for everyone; and he would not be in support of an increase this year.

 

Commissioner Fisher stated AAA has a rate they charge when someone is picked up; and he would think that some of the wrecker companies are members of AAA, and accept the AAA fee; at some point in time he would be curious to see if the Board’s fees are similar to AAA fees; and something tells him the wrecker companies’ are probably more generous than what AAA pays.  Chairman Nelson stated non-consensual towing means the people probably do not belong to AAA. 

 

The Board took no action on Item VII.A.6., Towing Resolution to increase maximum towing rates. 

 

 

 

Commissioner Infantini stated she is not in favor of the proposed resolution because it looks like the costs were going up and the Board is making sure it understands FDOT is only providing $150,000; and FDOT wants to make sure the Board is aware that the entire remainder part of the cost for brick pavers; and she does not think brick pavers need to be put in for landscaping. 

 

Greg Lugar, Merritt Island Redevelopment Agency Director, advised the actual project was budgeted at $470,000, but the bid came in at $320,000, of which $300,000 is coming from FDOT; FDOT originally gave the County $150,000 grant; but because staff pestered them again, FDOT gave the County a supplement to add another $150,000; and that grant is really for $300,000.  He stated in addition, the pavers, which are already in the original bid in the median are being placed currently, and it is part of the $320,000; and staff is asking the Board to change the order and go ahead.  He noted Item VII.C.2. is a sister to this item; that item is going to take out all the weeds and grass that is approximately one-foot to three-foot meandering for a mile up and down S.R. 3; the cost of actually getting in there and cutting that by trimming and edging by hand is approximately $8,400 per year; and if the brick pavers are done, it may only take one or two applications of herbicide per year, which is approximately $800.  He noted staff is totally doing away with the sod by using the brick pavers; and there was a lot of thought in the process for this particular project.

 

John Denninghoff, Public Works Director, stated staff has estimated the amount of cost without the pavers; it is estimated to be a savings of $12,000 to $15,000 per year in maintenance costs by using the pavers; and the ongoing costs will go down as a result of the use of the pavers.

 

Commissioner Bolin inquired if the landscaping money is secured in writing from FDOT; with Mr. Denninghoff responding affirmatively.

 

Motion by Commissioner Infantini, seconded by Commissioner Bolin, to adopt a Resolution and execute Amendment No. 2 to Joint Participation Agreement with State of Florida Department of Transportation (FDOT) for landscape improvements on North Courtenay Parkway, also known as State Road 3 (S.R. 3) in Merritt Island.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve Change Order No. 1 to the Landscape and Irrigation Project Contract with Treasure Coast Irrigation, Inc. to include installation of additional brick pavers along the S.R. 3 corridor between the curbs and sidewalks from S.R. 520 to Skylark Avenue; and approve an additional 10 days to the construction period.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to adopt Resolution and execute Local Agency Program (LAP) Supplemental Agreement with Florida State Department of Transportation (FDOT) for the design of the trailhead at the Chain of Lakes Park in Titusville.  Motion carried and ordered unanimously. 

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to execute Task Order No. PCE-014 for Post Design Services for the Pineda Causeway Extension Project; and authorize the Chairman to execute the Agreement and Resolution. 

 

 

Commissioner Infantini stated her problem with the item is that the project cost is $118,000; the breakdown in the estimate is $38,000 for salary, $62,000 for overhead; and inquired why the overhead costs twice as much as the compensation.  She stated typically, overhead is approximately 10 percent or 20 percent; but 200 percent is excessive; and she thinks the bid needs to be dropped closer to $50,000. 

 

John Denninghoff, Public Works Director, stated the salaries are the actual salary to the employees; it does not include any of the Social Security or other items associated with a paycheck, including Workers Compensation Insurance; all other items are audited figures that have to be approved; and it is a typical number.  Commissioner Infantini stated when she has looked at other contracts and saw the overhead applied, it has typically been around 10 percent to 20 percent, but never double the salary.  Mr. Denninghoff stated all insurance is also included in that; it is not a simple overhead number; it pays all items such as the employer’s share of social security; the engineer of record needs to perform the services for the project; when the contractor raises a question, the engineer of record needs to answer that question; and the general Contract with the engineer provides that they will provide the services, but it is a year out when negotiated, so they have to be brought forward at the time the services are being performed.  

 

Commissioner Infantini inquired at what point can the Board tell the engineer of record that their billing is excessive; she is tired of the engineering fees running rampant; and more engineers need to be hired, but no firms.  Mr. Denninghoff stated if an engineer gives staff a fee that is beyond what staff expects it to be, it is sent back; staff does not send it back if it is felt the engineer is in the range they should be; however, staff has sent fees back and made the engineer resubmit with a change; sometimes the engineer misunderstands the scope and just has more hours into the proposal than is warranted; and other times staff and the engineer will disagree about things.  He stated as to having more engineers on staff, that can be done; a huge percentage of engineering design services are farmed out; and it is primarily a privatized function.

 

Commissioner Bolin stated the Pineda Causeway Extension Project was part of the original budget,  but the  Board did  not know  the exact amount  down to the penny; and the work has already begun.  Mr. Denninghoff advised the consultant has already performed some of the services at risk because it helped move the project forward.

 

Chairman Nelson called for a vote on the motion.  Motion carried and ordered; Commissioner Infantini voted nay. 

 

 

Gay Williams, Housing and Human Services Director, stated it is requested the Board approve and adopt a resolution for SHIP Housing Local Assistant Plan for fiscal years 2009 through 2012; it is required for Housing and Human Services to receive the funds; and it is estimated that the County could receive approximately $6 million, which would  be for the development and preservation of affordable housing. 

 

Anna Grau stated she has been with the Space Coast Center for Independent Living for over 15 years; it is a non-profit organization that provides services to help people with disabilities live as independently as possible; and she refers people to the Brevard County Housing and Human Services Department frequently for assistance with housing issues.  She stated she has been on the Affordable Housing Council for five years representing people with disabilities in the community; and the Council has tried its best to bring good projects and programs to the County that will benefit the most people, such as the repair and rental programs, the weatherization program, and the first-time Homebuyers Program.  She stated the Local Housing Assistance Program (LHAP) meets very low and low to moderate income households to expand production of, and preserve, affordable housing; the State Housing Initiatives Partnership (SHIP) Program provides funds that do just that; Brevard County’s First-Time Homebuyers Program offers applicants the opportunity to become homeowners; applicants must meet eligibility requirements to qualify; and they are set up to succeed.  She stated much good has come from the housing programs and it is the Affordable Housing Council’s sincere hope that the Board will help it assist as many people as possible. 

 

John Saxton stated he has a company call the Affordable Housing Link that deals with affordable housing issues, primarily on the development side; he is also on the Affordable Housing Council; and he would like to urge the Board to pass the proposed resolution.  He stated a lot of time, research and thought has been put into the resolution; the AFC has heard research the staff has done; and it is something that is very needed. 

 

Commissioner Infantini stated she is uncomfortable approving the resolution because she requested a few months ago to have a complete overview and workshop to discuss all of the housing projects; and had she known this item was going to be presented to the Board because it has a time deadline of May 2^nd.  She stated once again the Board is being offered full packages without knowing the full overview; she is not inclined to accept the  resolution;  and she  realizes it is the only way to get the money; but at some point she has to make a point of saying there needs to be timely workshops so the Board can make educated decisions.

 

Commissioner Anderson stated he is not comfortable that a fiscal strategic plan has been implemented on how these issues are handled in-house; and he will not approve it until a good plan is in place.

 

Commissioner Fisher inquired if the funds are Federal funds; with Ms. Williams responding they are State funds.  Commissioner Fisher stated either the Board takes the funds or they are given to another County.

 

Commissioner Infantini stated just as with the Brevard County Housing Authority, she does not just want to take the State’s money and have it lost and possibly lose $2 million; after seeing the audit by the Clerks Office as to how those homes were selected for  Hurricane Wilma, then to later say there is no support in the files as to why those homes were selected; and she does not see how the County has the proper management to be handling $6 million; and she does not want to ask for money and then not manage it properly and provide the proper oversight.  She stated until the Board starts accounting for how it is spending money, and there is good methodology as to how homes are being selected, or individuals, or organizations, to administer the money she cannot move forward.  She stated she does not care if it is free money from the State; and it can go to another County that knows how to manage its money better.

 

Commissioner Bolin stated it is State money; if Commissioner Infantini feels the Board needs to work more on the Board’s administrative methods, that is fine; but she does not want to penalize the citizens in Brevard County by not taking the money and using it in the best way possible; and now that it has been stated that there needs to be more supervision, it can be watched more carefully.

 

Commissioner Fisher stated he thinks it would be great if Commissioner Infantini could meet with County staff to make sure she is comfortable; but to prove a point at the same time at the expense of the citizens and give up $6 million; it is a program that is available; and he thinks it is in the Board’s benefit to accept it and provide affordable housing in Brevard County.

 

Chairman Nelson stated the County is not the Housing Authority; the circumstances the Housing Authority found themselves in is much different than the County; and he would never compare the County to that scenario.  He stated if there are two Commissioners who do not believe the County should receive the money, would they mind if the money is spent in the other three Commission Districts.  Commissioner Anderson stated that is not the way it works; it is a principle-based thing; he will not sacrifice his principles to get money; right now the Federal Government is in a mess because everyone gave up their principles for some printed money from China; and he is not going to do that.  He stated he has asked for a strategic plan; what he received in his office was five boxes of garbage; there is a problem in the Housing and Human Services Department that needs to be addressed; and he has been quiet about it until there is a new County Manager in place. 

 

Mr. Whitten stated the Housing Workshop is scheduled for May 14^th; at the Workshop, the housing process will be discussed and any issues the Board cares to raise in regards to Housing and Human Services.  He stated in regards to the current request before the Board, it is approving a plan because it is necessary to access the dollars; but at any time during the year in doing the process of the Grant, the Board can actually amend the plan if it wants to; and the Board is not stuck with what it sees today.  Ms. Williams stated in addition, it is required that the Board have affordable housing; instead of giving the Board the mandate without the funds, the State provides a source of dollars in order for the Board to carry out what the State has already mandated it to do.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to adopt Resolution approving Brevard County’s State Housing Initiatives Partnership (SHIP) Program Local Housing Assistance Plan (LHAP) for Fiscal Years 2009 through 2012; and authorize the Chairman to sign the required State Certification.  Motion carried and ordered; Commissioner Anderson and Commissioner Infantini voted nay. 

 

  

Don Lusk, Parks and Recreation Director, advised staff has decided to go away from the standardization that was done in 1991 with Club Car, Inc.; staff feels as though the market is good right now, and there may be more opportunities for staff to be more efficient in how it does the golf carts for all three courses; and staff is asking permission to go out to bid and do procurement and selection and negotiating committees; but the Board needs to decide how to extend the agreements to get there.  He noted there are two Agreements that expire at the end of the month; and two Agreements expire at Christmas.  He stated Option 1 is to take everything to the furthest out contract that is available and use it as the extension option, or the one that is closer on December 14^th; and staff can make it work with either Option 1 or Option 2. 

 

Commissioner Bolin inquired if it is extended to December in order for them all to stop at the same time, is the rate the Board is currently getting the best rate possible.  Mr. Lusk replied yes, based on conversation with the vendor, the Board has a lower rate now that is secured to that point in time; it would be a higher rate if it goes back to the old way and negotiate them each time; and at this point it time it would lock in a certain rate. 

 

Motion by Commissioner Bolin, seconded by Commissioner Fisher, to authorize the extension of the four expiring Agreements which end on April 25, 2009 and December 14, 2009, until April 25, 2010 when the final Agreement expires; appoint a Selection Committee consisting of Parks and Recreation Director Don Lusk, Golf Operations Manager Jeff Whitehead, Parks Finance Officer Larry Wojciechowski, Central Area Parks Operations Manager Jack Masson, and a Golf Advisory Board Representative, or designees; appoint a Negotiation Committee consisting of Parks and Recreation Director Don Lusk, Golf Operations Manager Jeff Whitehead, County Attorney Scott Knox, and Parks Support Services Manager Marsha Cantrell, or designees; and grant permission to advertise a Request for Proposal to procure a golf cart lease vendor to provide golf cart services at the Habitat, Savannah’s and Spessard Holland golf courses.  Motion carried and ordered unanimously. 

 

 

Gay Williams, Housing and Human Services Director, advised the request is for approval of the Agreement with Community Housing Initiative, which will oversee the First Time Home Buyers Assistance Program as well as the home buyer counseling that must be administered.  She stated the Agreement was out to bid; there was only one applicant, which is Community Housing Initiative (CHI), that also handles the First Time Home Buyer Program for other cities; and the applicant has also done it for the County and has done a great job.  Chairman Nelson inquired what other cities does the applicant work with.  Ms. Williams replied the Cities of Cocoa, Palm Bay, Melbourne and Titusville.

 

John Saxton stated he is in favor of the applicant and the First Time Home Buyer Program; and Community Housing Initiative is the most qualified applicant.

 

Commissioner Infantini stated she is concerned about using Community Housing Initiative; she has the audited financial statements and last year’s tax return for CHI; she found that CHI has approximately $5 million in assets, and $8.5 million in liabilities; and she is not inclined to give an organization that has more in liabilities than it does in assets, as it does not show sound business practices.  She stated CHI has a $3.8 million building and $4.3 million in an outstanding loan; and CHI has another approximately $4 million in accrued in interest as a liability.  She stated she is not comfortable giving an organization that is upside down itself, the County’s money to provide oversight.

 

Ms. Williams advised CHI is a non-profit organization; in addition, it is a cost reimbursement; and the County does not give CHI funding until services are rendered.  Commissioner Infantini inquired why the County cannot administer the services itself.  Ms. Williams stated that has been done in the past; at this time, staff has been reduced and is no longer able to do the type of job that goes along with the First Time Home Buyer Program; and it was decided it would be cheaper to outsource the services.

 

Motion by Commissioner Bolin, seconded by Commissioner Fisher, to approve the recommendation of the Affordable Housing Council and Agreement to award SHIP and HOME funds equaling $1,000,000 for First Time Home Buyer Assistance and $15,000 for the Home Buyer Workshop and Counseling to Community Housing Initiative, Inc. to administer the County’s First Time Home Buyer Program.  Motion carried and ordered; Commissioner Infantini voted nay. 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to execute Agreement with School entities that have sent applicants for funding from the Driver’s Education Trust Fund in the amount of $420,000; and authorize the Chairman to sign any changes or amendments to the budget or contracts with previous approvals of the County Attorney and Risk Management.  Motion carried and ordered unanimously.

 

 

Commissioner Infantini inquired if the Board can use some existing land; stated when the EEL Program was making a lot of purchases, the Board was told it could be used as mitigation land; and inquired if the County owns any land that is in the correct river basin.

 

John Denninghoff, Public Works Director, advised for the Brevard Zoo Trail, it is in the same basin as the Pineda Project; as such, it was faced with the same challenges with mitigation; for the Pineda Project, staff explored 20 to 30 different options on existing County-owned land, whether through EEL or a Parks and Recreation property, or any other property; and the mitigation challenge could not be solved by using existing County holdings.  He stated with the Brevard Zoo Trail, the Mary-A Mitigation Bank was the one option left; the only other option would have been to purchase some other property some place and set up a mitigation system associated with that; and stated those options are typically very difficult to achieve because of the time associated with comparing the acquisition there would be to the mitigation impacts or the wetland impacts.  He stated the mitigation bank is the way to go when there is a difficult mitigation opportunity or challenge; and the Mary-A Mitigation Bank satisfied that requirement.

 

Motion by Commissioner Bolin, seconded by Commissioner Nelson, to execute the Mary-A Mitigation Bank Credit Reservation and Purchase Agreement for wetland impact mitigation credits required by St. Johns River Water Management District (SJRWMD) for the  Brevard  Zoo  Trail  Project.   Motion  carried and ordered  unanimously.  

 

 

Commissioner Infantini stated she would like to point out on the Contract that of the $126,000 the Board is paying, the person being paid is going to sub-contract out $85,000 of the total cost.  Don Lusk, Parks and Recreation Director, advised the County is asking Ardaman & Associates to go out to bid to get the best cost for the services. 

 

Motion by Commissioner Anderson, seconded by Commissioner Infantini, to authorize issuance of work order to Ardaman & Associates, Inc. for $126,286 for two upper Floridian aquifer irrigation supply wells at Rodes Park.  Motion carried and ordered unanimously.

 

 

Dennis Neterer, Interim Fire Rescue Chief, advised the First Responder arrangement began in approximately 1998 as a means of helping the municipalities go from basic life support to advanced life support; since then, it has been an annual reimbursement for the municipalities; and before the Board is $1.391 million, spread out amongst approximately 14 other agencies. 

 

Chairman Nelson stated the Board implemented the First Responder Program to encourage the other municipalities to bring their systems up to the same level as the County; and it has worked because now the municipalities are better trained and have better equipment.  Commissioner Infantini inquired if the Board has to pay the municipalities to be qualified.  Mr. Neterer responded no, the Board does not have to pay them; it was approved in last year’s budget process; and staff is bringing forward what was approved in the budget process for the Contracts approved by the previous Board last summer. 

 

Commissioner Anderson stated the idea was that because the municipalities are first on the scene with life support units, their equipment would be up to par with what the County is running when it gets on the scene.  He inquired if the $18,257.87 on the ABLS is a base rate.  Mr. Neterer replied there are three municipalities in which their law enforcement are the first responders; and that is the ABLS rate.

 

Commissioner Bolin stated the funding is not mandatory; it was done out of the Board’s desire to give the municipalities money; however, the Board passed it last year, and she feels the Board must honor it because of the budget; the cities have already implemented the First Responder Program and are planning on the money; and although she did not vote for it last year, she will approve it this year.

 

Chairman Nelson advised he attended the Florida League of Cities meeting last night; and he shared with four cities that in all likelihood, the First Responder Program would not happen again, so they are on notice.

 

Commissioner Anderson stated the Board needs to cognizant that the residents in the municipalities also pay into the General Fund; and the Board needs to make sure they continue to get their equal share from the County.  Chairman Nelson stated in this particular circumstance the unincorporated County is the one that gets the bad deal.  Commissioner Anderson stated that is correct, but he does not want to start taking from municipalities just because they are not part of the unincorporated County; and he lives in an incorporated area and he pays a lot of County property tax.  Chairman Nelson stated the Program was coming out of the County’s General Fund; unincorporated and incorporated residents pay for that, as well as their own fire departments for the same level of service; and the unincorporated residents are paying twice, while the incorporated residents are paying once.  Commissioner Anderson stated it also needs to be remembered that the Board cannot mandate the level of service the municipalities supply. 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to execute the First Responder Agreements for FY 2008-2009 to allow allocation of approved EMS funding  to  First  Responder  agencies,  consisting of the following  municipalities:  Cape Canaveral, Cocoa, Cocoa Beach, Indialantic, Indian Harbour Beach, Melbourne, Melbourne Beach, Melbourne Village, Palm Bay, Rockledge, Satellite Beach, and Titusville.  Motion carried and ordered unanimously. 

 

 

Stockton Whitten, Interim County Manager stated the item is a request for consultation services; it is under his authority to approve; but he wanted the Board to be aware staff was making the request; and staff would like the Board to approve the request because of all the issues currently with Animal Services and Enforcement.  He stated approving the item is one of the best things the Board can do right now with regards to having an outside party coming in to give the Board an objective review of the animal shelter services.

 

Commissioner Infantini stated she would have agreed, except that she spoke some people with the University of Florida last week, to establish some criteria; and she was informed that the University of Florida is not experts in shelter facilities.  She noted the University of Florida suggested the Board contact one of its organizations in a local area, such as Indian River County; people have referenced that facility as one of the best practices and are better equipped to give the Board advice on how to run a shelter; and it was explained to her that the University of Florida is more in the field of Veterinary medicine, and not shelter management. 

 

Mr. Whitten stated he does not know who Commissioner Infantini spoke to with the University of Florida, but they need to revise their objective.  Chairman Nelson stated apparently the University of Florida is lying to everyone because he has information from the University that says their objective is the comprehensive shelter health assessment.   Commissioner Infantini stated none of the people she spoke with from the University of Florida were able to give her any standards or criteria as far as minimum standards for the animals.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve the submittal of a request for consultation services from Maddie’s Shelter Program at the University of Florida Veterinary School.  Motion carried and ordered; Commissioner Infantini voted nay.

 

 

Stockton Whitten, Interim County Manager, stated the item is in response to the downturn in the economy with regards to bringing back into balance the Permitting and Enforcement budget; it is also the consolidation of the two departments; Permitting and Enforcement is projected to be out of balance by the end of the fiscal year by approximately  $1.2  million;  and   there  is  a  real-time  need  to  address  that  revenue shortfall.  He stated the Agenda Report explains how staff is recommending the Board address that shortfall; there are some additional benefits that Assistant County Manager Mel Scott can go over with regards to the consolidation to the departments; it is the first step in what will be a long summer with regards to presenting the Board a balanced budget proposal; and staff has thought long and hard about the proposal and how to bring it to the Board.  He noted there are staff reductions at all levels within the organization; it is a difficult time for staff because this is the first of a number of reductions the Board need to undertake to bring the budget in balance for Fiscal Year 2009-2010.

 

Mel Scott, Assistant County Manager, advised he is looking forward to the healing process that will occur as the organization is put together in its new form; and staff has tried to right-size the workforce so it is still able to respond effectively and efficiently to the end user, which is the development community.  He stated the Building Department receives zero tax dollars; it is funded 100 percent by fees that are paid by the development community; after the reorganization staff still needs to effectively run the front counter; and staff understands the inter-relationships that need to continue in order to serve the customer and tax payers of the County. 

 

Commissioner Infantini stated she is not in support of the request; Permitting and Enforcement has already been cut back to pre-2001 numbers; to continue to cut in that one department seems like a knee-jerk reaction when there are other departments that have grown and have not cut back, such as Natural Resources, which is almost entirely funded by intra-governmental transfers. 

 

Mr. Whitten stated jobs are not being cut because people are not bringing in revenue; the revenues are not there to support the current payroll; there are positions at all levels that are being reduced out of necessity in both the Permitting and Enforcement Department and the Planning and Zoning Department beginning with the Permitting and Enforcement Director; and it is not a response to inspectors not being able to bring in revenue, but it is to strategically position the organization to continue to provide the services. 

 

Mr. Scott stated there is one aspect of all enforcement that occurs in the County that is proactive, and it was an experiment the County undertook several years ago; there are some employees on the Contractor Licensing and Enforcement side that staff had hoped would go out and help the industry, which is the licensed contractor; and in that specific case, Code Officers were instructed to go out and do investigations; but it has been found to be a drain on that department’s budget because the investigations of some inspectors are making that happen budgetarily, but not those of others.  He stated the Code Enforcement Office, dealing with overgrown yards or junk vehicles is a reactive per-Board policy inspection function of the Board of County Commissioners; but there is also a small component part that was designed to be proactive; and that turned out to be a severe money loser.  He stated the direction that was given to that group of employees was very clear, which was to go out and drum up investigations.  

 

Commissioner Infantini stated she would still like to see the Board furlough people first, to find ways to cut the budget, instead of just a few.   She stated  if the Board  went  from three Assistant County Managers down to one, perhaps the take would be different; and inquired how much could be saved if everyone took a one week furlough.  She stated she agrees that government has gotten too big, but right now she would rather everyone feel the pain instead of just the select few that are being selected right now. 

 

Commissioner Fisher stated the amount of dollars and revenue the Board is going to receive is going to be such a big hit that there is no way there is not going to be a drop off in service; and at some point the Board has to decide what service level it wants.  He stated this is just the first of several cuts that will have to happen in order to get a balanced budget and not have any kind of new source of revenue, or at least stay at the same level as today.  He stated he hates to see this happen, but he does not know how to fund a $1 million shortfall; but it is a good exercise for the Board to be discussing it today because there are going to be good County employees affected by the Board’s decision to not generate any additional revenue. 

 

Commissioner Infantini stated she would be in favor of a 72-hour work week; and she thinks the same level of service can be accomplished in 72 hours, instead of 80 hours. 

Mr. Scott advised staff discussed the furlough option; he cannot rule out the furlough idea moving forward; as the economy has continued to decline, staff has already had to right-size certain departments in the past; he is trying to close up the $1 million shortfall by merging the departments by trying to incorporate sources of revenue so that it is not on the back on one department, but shared; and that is an idea staff is going to have continue to employ elsewhere.  He stated regarding the furlough option, with the collective payrolls of the two departments that are now being merged to match the shortfall, he gets $300,000, and he needs $1.2 million; stated he gets $300,000 for every 10 percent decline in the work week; with this severe shortfall, employees would be working Monday, Tuesday, and half of Wednesday; and it is something that was looked at before going to the reductions being faced with today.  He stated unfortunately, the absorption of the housing supply is still not what he would like to see; at a $205,000 per-month revenue need, there have consistently been months of $120,000 or $150,000; and he is not sure with 100 percent certainty that today moving forward, the bottom has still not been seen.  He stated if the Board wanted to give more funds to a department that has seen its permits drop from 2000 per month to 500 per month, then the Board would actually be subsidizing salaries in the short-term for work that is not there; in the past, the Board has said it wants the revenue to stay in place for the Code Enforcement side because there is a commonwealth benefit to that activity; but what he is trying to impact is an organization that is primarily responding to a fee-based service of the economy that is not there; and he wanted to share with the Board that staff has gone into depth on the furlough idea, but it was not seen as a viable option given the severity of the revenue short-falls. 

 

Commissioner Infantini stated Mr. Scott continually believes that this one particular department needs to remain entirely self-funded, whereas the ONR does not have to be self-funded, as it can pick up 70 percent of its revenue from inter-governmental transfers.

 

The Board recessed at 5:44 p.m. and reconvened at 5:57 p.m.

 

Mr. Whitten stated staff is not picking on one department; the reality is there is a $1.2 million deficit in Planning and Zoning; and that magnitude of a shortcut necessitates some reduction in services, staffing, and operating expenses.  He stated if the Board takes the dollars from other General Funded agencies, it is simply shifting the problem by taking money from agencies that may have not experience a reduced work load, and transferring those dollars to a department that has experienced a reduced work load; and the Board does not have the dollars in the General Fund accounts to actually do that.   He stated when the Board comes back for the mid-year supplemental, it will have to reduce either its reserves for the General Fund, or it will have to make some reductions in the General Fund because the balance forward figures from the General Fund are actually down; and so, the issue is one staff thought long and hard about; and there are agencies certainly that are funded through the General Fund, but those budgets were built on that.  He stated the budget was built on a compliment of fees and other transfers; the fees are not coming in the door; and so some cuts have to be made.  He noted they are the same cuts that are being made elsewhere in other businesses and in the Clerks Office; they are real-time cuts, they are not knee-jerk; staff has thought about the proposal and they believe this is the best way to address the current issue and to address the right-sizing of the functions that are common to both departments in the 09-10 fiscal year, and subsequent fiscal years. 

 

Commissioner Infantini stated she does not know why previous Commission’s wanted Planning and Zoning to be self-funded, but in Natural Resources, there has not been a decrease in staffing when there has been a decline in people permitting; and if no one is pulling permits to build, they are not doing the environmental permitting either.  She stated the fact that someone chose to finance one department over another is not her call; she is moving forward; and she would suggest picking on all the departments, and not just one. 

 

Commissioner Anderson stated Planning and Zoning is a workload fee-generated area; he does not want to take money from any other General Fund function and pay to jst keep employees on board that do not have enough work to do. 

 

Chairman Nelson advised all departments have had cuts over the last several years; and inquired if Commissioner Infantini has a list of which departments are overfunded.  Commissioner Infantini stated either departments are completely funded, or almost entirely funded by the inter-governmental transfers. 

 

Chairman Nelson stated Commissioner Infantini has not articulated what those employees do or do not do; potholes still have to be filled; that did not go away because the economy became bad; there are departments still trying to provide full service at this time; but there are other departments that have experienced reductions; and he has an issue that the Board does not have a basic level for both of those departments.  He noted Code Enforcement was receiving its funds from permitting fees; but it was never associated with permitting in that regard; and the Board agreed to put some General Fund dollars in there because the piece it was funding was reactive; and the workload has not dropped off at all because people call in with complaints on a routine basis. 

 

Motion by Commissioner Anderson, seconded by Commissioner Bolin, to grant staff permission to advertise an amendment to Section 2-73 of the Brevard Code of Ordinances to merge the Permitting and Enforcement Department and Planning and Zoning Office into a Planning and Development Department, with a public hearing to take place on April 23, 2009; acknowledge expenditure reductions necessary to respond to severe revenue reductions resulting in the current recession; and confirm Robin Sobrino, AICP, as the Department Director.  Motion carried and ordered; Commissioner Infantini voted nay.

 

 

Commissioner Fisher stated on one hand, the Board is trying to create as many jobs as it can in the community, and on the other hand, the unemployment rate in Brevard County keeps getting higher; revenue is going down, but at the same time, the Board wants to save jobs; that is a contradiction; he would like the Commissioners to please keep their minds open as to how the Board can keep people employed and keep providing services to the citizens; and saving jobs cannot be done if the Board stays at the same.  

 

 

 APPROVAL, RE:  BILLS AND BUDGET CHANGES

Commissioner Infantini stated the Bill Folder contains some travel for somebody that was approved; the approved amount was $5,400; the spent amount was $7,750, which is $2,300 over; and it was approved by the Assistant County Manager on February 25^th, which was before the travel.  She inquired why she is being asked to approve something after the travel has already been made, as if she can actually say no.  She inquired if the Board is going to exceed the budget by 20 percent, should it be presented with that information prior to it being spent, or just continually after it is spent. 

 

Stockton Whitten, Interim County Manager, advised the administrative order addresses a 20 percent approval that can be done administratively that has to be brought to the Board; and he believes the administrative order should read prior to the travel occurring.  He stated he does not know what happened in this particular instance, but he will certainly look into that. 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve the Bills and Budget Changes as presented.  Motion carried and ordered; Commissioner Infantini voted nay.

 

 

Chairman Nelson stated he thinks he found the one Commissioner Infantini is talking about; it looks like in advance of the travel, they became aware of the increase in cost; but prior to traveling, it was a decision made to allow them to travel. Commissioner Infantini inquired why it was not brought to the board.  Chairman Nelson stated sometimes it is an estimate what travel costs are going to be; and then it is found out to be  a  different number;  and  in this  case it  went through the  administrative  process its supposed to go through.  He stated he would have been more concerned if it had to come back that way after the fact as opposed to in advance of the travel; but in this particular case, staff looked at it, recognized there was a difference, and as a result of that got permission; but staff was up front about the fact it was going to cost a bit more.  He stated he would like to point out that it was for tourism, which is trying to get people here; and staff is working hard in that area and recognized it in advance. 

 

 

Upon motion and vote, the meeting was adjourned at 6:12 p.m.

ATTEST:                                                                                                                                                                                                         ____________________________

                                                                        CHUCK NELSON, CHAIRMAN

                                                                        BOARD OF COUNTY COMMISSIONERS

                                                                        BREVARD COUNTY, FLORIDA

_____________________

SCOTT ELLIS, CLERK

      

          (S E A L)