MINUTES OF

POLK COUNTY CHARTER REVIEW COMMISSION

NOVEMBER 13, 2001

Chairman, Dan Costello, called the meeting of the Polk County Charter Review Commission to order at 6:00 p.m. on the 3^rd floor conference room of the Citrus & Chemical Bank, Bartow. Commissioner McLaughlin  led the prayer and Commissioner Price led the Pledge of Allegiance.

Ms. Swearengin called the roll. All Commissioners were present, with the exception of Commissioners Dukes and Gernert who gave advance notification of their absences in accordance with the Commission’s Rules.

The Chairman said he would like the record to show the Commission had a quorum. 

The first order of business was for the approval of the minutes for October 23, 2001. 

Commissioner Strang said on page 26 of the minutes there was a reference regarding him making a motion on the partisan and non-partisan issue halfway down the page, and the minutes stated he was going to vote “no”, and he said he was sure he stated he was going to vote “yes” on his own motion. 

The Chairman asked if there were any further changes to the minutes.

Commissioner Lindsey said on page 10 on the third paragraph down the comments implied that they were his comments from the previous paragraph, and he thought that was where Commissioner Masters started his comments, so he asked that “He” be changed to “Commissioner Masters”. 

He said he had another change at the bottom of page 24 on the next to last paragraph beginning with his name.  He said the word “intended” in the first sentence should be changed to read “unintended”.

The Chairman asked if there were further corrections?  There were none. 

 The Chairman asked subject to those three corrections if there was a motion to approve the minutes?

 Commissioner Lindsey made a motion to approve the minutes and Commissioner Moore Bailey seconded the motion.

 The Chairman asked if there was further discussion, there was none.  The motion carried.

The Chairman said the next item on the Agenda was Reports.  He said he had contacted Haines City and Winter Haven, and the Commission’s public hearing would be scheduled in the Winter Haven City Hall in their meeting room for their commissioners, which was called the Fuller Auditorium on February 19^th at 7:00 p.m., and Haines City would be at the Haines City, City Hall, March 5^th at 7:00 p.m.  He said he had not contacted Lakeland at that point, but there was only one choice left, and that was for March 19^th, and he would get that information to them.

He said one other issue he wanted to get some guidance on was in the Charter, in the final paragraph, 3.4.  He read that paragraph to the Commission.   He said he was assuming that the Commission would have some amendments or revisions, and if there weren’t any amendments or revisions he didn’t know if the public would need to be educated to that affect or not, but he guessed that maybe they would, but whether they did or did not have revisions some guidance was needed regarding the period from April 2^nd through November.   He said in the Charter it stated it may remain in existence, which implied they could go out of existence as soon as their report was finished, but i knowing how badly voters needed education before making their decisions, his feeling was it would be a good idea for the Commission to make an effort to acquaint the voters with the Charter and the amendments or revisions thereto. 

He asked the Commission what their feeling was on that issue?

Commissioner Lindsey said he would be inclined to stay in existence for the very reasons the Chairman had mentioned. 

Commissioner Strang asked if there was any reason why they needed to decide then?

Chairman Costello said no there wasn’t, with the exception that he needed to build a budget for their approval at the next meeting because their current budget ended on December 30^th, and they would not be meeting in that calendar year after the next meeting, and it would be helpful to get some guidance from that standpoint, and it didn’t have to be absolute. 

Commissioner Price asked Chairman Costello in that continual time did he think there might be requests for discussion or presentations?

The Chairman said yes, and as a matter of fact, there had already been some requests.  He said Commissioner Lindsey had spoken to a group and he had three invitations, and he was sure more would be forthcoming. 

Commissioner Price said after the public hearings would probably be a good time for the Commission to schedule any requests for presentations, and to present the recommendations of the Commission to the ballot.  She said she thought it would be nice to have a presentation developed, which would probably be another budgetary item to be included, and she thought clubs and organizations would be interested in hearing that information. 

The Chairman said one other aspect was regarding Ms. Swearengin’s planning for the future.  He said she had done an excellent job for the Commission, and if they did go out of existence on April 2^nd, he felt the Commission should give her as much notice as possible so she could make plans for the future. 

Commissioner Strang asked if it wouldn’t be prudent to build the budget based upon continued existence, and then if they decided that they didn’t need to stay active then it would be a great windfall for the county treasury?

Commissioner Lindsey said it seemed logical that they stay in existence, and if the need arose the structure would be there as opposed to disbanding and finding a need and then trying to reassemble.

The Chairman said that continuation and existence implied they would all be willing to go out and speak to various groups throughout the county. 

The Chairman said that was sufficient guidance. 

The Chairman said he would like for Mr. Spitzer to give his report, which would not include the specific items, which were in the Issues Agenda. 

Mr. Spitzer said he did not have a report, but in their packet a revised timeline was included for the Commission’s work pursuant to the changes they made at their last meeting, which was basically to reverse the starting time for the discussion on the constitutional officers with the issues of ordinances by petition and charter amendments, and so forth and those were flip flopped, and other than that it stayed the same. 

The Chairman asked Mr. Watts if he had a report for the Commission?

Mr. Watts said Mr. Spitzer asked him to look at the full time/part time issue, and he said he would defer that report until the Commission reached that issue on the Agenda.  He said he did not have anything further to report at that point.  

The Chairman said the next item the Commission would be discussing would be the Issues Agenda. 

Commissioner Nunnallee said she would like to ask a question for clarification on the timeline.  She asked if the March 5^th meeting scheduled in Winter Haven was for 7:00 p.m. instead of 6:00 p.m.?

The Chairman said that was correct. 

Term Limits

The Chairman said the Commission was now down to the Issues Agenda, and he put those issues in the order of A, B, and C because he anticipated that “C” would require more discussion than the others, and they would begin with the issue of term limits.  He read Article 2.3 in the Charter to the Commission.  He said he thought the only current commissioner that article affected was Commissioner Combee, and he was in the first four years of an eight year term, so he could serve as he understood it four more years in addition to the current term, but the other commissioners were obliged to serve only a total of eight years.  He said Commissioner Combee would have served somewhere around twenty years if he gets elected to another term.   

He said he would like to begin with term limits. He asked Mr. Spitzer and Mr. Watts to brief the Commission before beginning their discussions.

Mr. Spitzer said in their packets that evening was a handout (copy in Commission files), which was a listing of all the polices that currently existed in the seventeen charter counties as related to term limits.  He said eight had a policy, and they were all fairly similar to that which existed at the present time in Polk County. In other words there was a limitation of no more than two consecutive terms of office.  He said the ones which were indicated as being silent meant that there was no policy on term limits, which in affect meant that they could seek re-election for as many consecutive terms as the voters would return them to office.  

He said Volusia County was a little different in that it had different terms of office for some of the commissioners in that county.  Single-member district commissioners had two-year terms, and there was a limitation of three two-year terms.  He said the two at-large commissioners served four-year terms, and there was a limitation of two four-year terms for those individuals.

He said, currently there was litigation regarding the Duval and Pinellas County Charter revisions, and they were awaiting a decision from the Supreme Court, and among other things there was a question of term limits.  He said to be clear those issues surrounded the provisions in those charters in Duval and Pinellas, which were somewhat unique charters.  He said the Duval Charter had its origins embedded directly in the Florida Constitution, and Pinellas was a “Special Act Charter” passed by the Legislature first then presented to the voters and approved by the voters.  He said there were procedural questions as to how one would go about amending those charters, and not whether or not one could impose term limits. 

He said there were not term limits for any of the non-chartered counties.  He said he thought their options were very straight forward, and they were: have no recommendation (do nothing, leave the provision as currently exists in the charter); abolish the policy; go back to the previous policy of no term limits, or perhaps adjust the policy in some fashion, i.e. increase it to three consecutive terms or some other number of terms as opposed to two. 

The Chairman said when the Commission did its polling by e-mail the vote on that issue was eight who wanted to discuss it and five who didn’t have an interest in discussing it.

He asked if the Commission had questions for Mr. Spitzer or Mr. Watts on that issue?

Commissioner Lindsey asked on the Duval and Pinellas litigation if he was to assume that the original charters did not provide for limitation and somehow it was amended subsequently and the procedure of amendment was being challenged?

Mr. Spitzer said that was correct.  He said he was not very familiar with Duval, but in Pinellas neither of them had term limits.  He said in Pinellas the charter was first passed by the Legislature, and it had some language in it which some people believed required future amendments to the charter by first going back to the Legislature and being passed as a special act, and then coming back to the voters to be adopted or not by them. 

Commissioner Lindsey asked if that occurred?

Mr. Spitzer said that did not occur. He said there was a petition drive, which was successful in placing that question on the ballot, and then the voters adopted it.  The argument of the folks who opposed that initiative was that the amendment should have been proposed by the Legislature first.

Commissioner Lindsey asked who were those that were challenging?

Mr. Spitzer said in Duval he thought it was Clerk of the Court and other constitutional officers, and in Pinellas the original litigation was brought by the constitutional officers and the Board of County Commissioners, and after the first loss at the trial court it was one or two of the constitutional officers that were pursuing that litigation, and the County Commission had dropped out as being a party. 

Commissioner McLaughlin said in Volusia County there was a mixture, and he was assuming that the mix was that some commissioners serve for two-year terms in that they have three terms to serve for those two years, and if a commissioner were to serve those full terms, and the two-year terms were what he was referring to, he asked if they could then run for the at-large seat on top of that? 

Mr. Spitzer answered yes, that frequently happened.

Mr. Watts said sometimes they moved into constitutional offices.

Commissioner Price said along with those same thoughts if there was a make up of single-member districts as well as several at-large, could one move as long as they met the requirements, from seat to seat?

Mr. Spitzer said if it were a different office or a different seat, then yes, that could be done if she was referring to the Volusia example?

Commissioner Price said no, she was referring to Polk’s.

Mr. Watts asked if one served three terms in district one, and then moved to district five could they then run for three terms in district five?

Commissioner Price said she thought the answer to that question was yes. 

Mr. Watts said that question had never come up, but he thought that the answer was yes.  He said there was also a question out there that they didn’t know the answer to, and that was what happened when the district lines were redrawn a year after a census, and the question was is it a new seat?  He said the Supreme Court seemed to say that in the case of the Legislature in the 1982 reapportionment case, but that might be limited to the special provisions of the Constitution that dealt with legislators.

Commissioner McLaughlin asked what the Supreme Court said?

Mr. Watts said the Supreme Court said that when the Senate was redistricted after the 1980 Census all senators were running in new districts, so they all had to run again.  None of them had an incumbency that would carry over for two more years.  He said the question had arisen and it hadn’t been asked yet, was what effect was that going to have on legislative term limits?  He said if they were all running for new seats after the 2002 redistricting, do term limits start all over again for those people?  He said he didn’t know the answer to that, but it was related to the question that Commissioner Price asked regarding whether it was a new seat when one changed from district one to district five.    

Mr. Watts said he thought the answer was yes. 

Commissioner Price said if the county moved from five to seven commissioners then they would have that based upon whatever the county ended up with as far as the district lines were concerned. 

Chairman Costello said there were basically three choices, which were: “A” – No change, keep it the same way; “B” – would be to eliminate term limits so that in affect the Charter would be silent on that subject; or “C” – would be to adjust the present term limitations. 

The Chairman said he would like to go around the table and ask each commissioner what their thoughts were on that particular issue.  The Chairman said they could state where they were coming from without necessarily voting, because a motion had not been placed on the floor, and they were not really voting, but he would like for them to state their preference.

Commissioner Lindsey asked the Chairman to restate the choices.

The Chairman did as Commissioner Lindsey asked. 

The Chairman asked Commissioner Allen for his thoughts.

Commissioner Allen said his choice would be “B”.

The Chairman asked if he wanted to amplify his response in anyway?

Commissioner Allen said he thought the voting booth was a good term limiter. 

The Chairman asked Commissioner Strang for his comments. 

Commissioner Strang asked the Chairman to pardon him if he had a wry grin on his face.  He said part of him said they should be inclusive or liberal in putting referenda on the ballot, and just about anything that had some sort of reasonableness to it should be put before the voters to have a chance to vote on it, and the other side of him said lets do it because surely the voters will feel the same way they did in 2002, as they did in 2000 when that issue passed by about three quarters of the populace. He said the other consideration was that it embarrassed him because he could foresee a big uproar from the citizenry coming hard on the heels of the overwhelming referendum that they had just been through, and he could hear a hue and cry coming up from the citizenry ascribing one of two motives to them, either they would say that Commission would say that the voters were stupid, and they didn’t understand what they were doing in 2000 when that issued passed by 74% or they were just toadies and were the lap dogs of the County Commission, and they were just doing their bidding to further their own personal power.  He said neither one of those two conclusions were very palatable to him.  He said he also thought that they would be subject to a lot of criticism if they put that issue on the ballot after they had already ignored a number of petitions and other comments from the citizenry, and if they failed to put the whole plethora of public initiatives on the ballot, but yet include an issue, which was a matter of great personal importance to the incumbents who appointed them, then he thought they and county government would be subject to a lot of justified criticism. 

The Chairman asked Commissioner Moore Bailey for her thoughts.

Commissioner Moore Bailey said she would choose “A”.

The Chairman clarified that Commissioner Moore Bailey’s choice would be for “A”, which would be no change. 

The Chairman asked Commissioner Master’s for his thoughts.

Commissioner Master’s said his choice would be “B”.

The Chairman asked Commissioner Lindsey for his thoughts.

Commissioner Lindsey said he agreed with Commissioner Strang to leave things as they were, which was choice “A”.  He said since 1970 there had been twenty-five different commissioners who had served on the Board of County Commissioners through the year 2000, and of that twenty-five eighty percent had served two terms or less, and ninety-two percent had served three terms or less.  He said he was not a proponent of term limits.  He said he thought the ballot box itself was its own term limit, and as he had said before when one limits terms they limit choice, and he would try not to limit choice on behalf of the voters by the exclusion of one person, and they no longer have the right to run for that particular office.  He said he would rather see a system that did allow for institutional memory to transcend from one commission to another, and with two term limits they did not have that.  He said had there been two term limits in the Legislature five or ten years or even twenty years ago they would not have the benefit of Fred Jones serving Polk for all of those many years, and if anybody was familiar with the battles about radon and phosphate, and what they could and couldn’t do his institutional memory prevailed session after session over the objection of staff and the agencies that fortunately resulted in the laws that we have today, and not the laws that were reported and represented then, which would have been a devastation for Polk County and much of Central Florida, but that was a narrow single example.  He said when there were eighty percent serving only two terms, and twenty percent serving more than two terms, it did provide that bridge from one commission to the next to give that transcending knowledge to be passed down.  

He said for the reasons that Commissioner Strang mentioned, he wasn’t sure they could go in the face of the public albeit that was their choice, but he would rather have seen a system, and counsel told him it was not possible, that they exclude the services of county commissioners in the calculation of state pension benefits, and if they were to exclude them from being the beneficiaries of those pensions that in itself may be its own term limit motivation.  He said he was told they did not have the discretion to do that, although he was not sure who would challenge them if they did it anyway. 

The Chairman said, nor was it the direct subject of that discussion, because he felt it had nothing to do with term limits, and it had to do with something else. 

Commissioner Lindsey said he disagreed.  He said he thought it was a way to achieve term limits if it were coupled with that proviso. 

The Chairman said that was true. 

Commissioner Lindsey said absent that coupling, then of course it didn’t have anything to do with term limits.

The Chairman asked Commissioner Nunnallee for her thoughts.

Commissioner Nunnallee said she would support “A”.   She said she supported term limits for those who made the policies, but she did not support it for those who enforced the policies. 

The Chairman asked if Commissioner Nunnallee would make the distinction to him as to what that meant?

Commissioner Nunnallee said she would not support term limits for the constitutional officers.

The Chairman said that would be coming up later as a separate issue, and he asked Commissioner Stoer for her thoughts. 

Commissioner Stoer said her choice would be “B”.

The Chairman asked Commissioner McLaughlin for his thoughts. 

Commissioner McLaughlin said his choice would be “A”.  He said he personally did not favor term limits, but he also thought that there had been no evidence put before the Commission that the population would vote any differently than they would have two years ago.  He said they could adjust it in some manner, if during the Public Hearings they received a lot of information, and he would be open to that, but as of then, he would say the likelihood that first of all, if they placed that issue on the ballot that it would pass, meaning that they would eliminate them would be slim, and clearly a lot of the voters had spoken on that issue, and he said he disagreed with the voters, but he didn’t think there was any new information available that was telling them that voters were demanding to keep their county commissioners in office.

The Chairman asked Commissioner Price for her comments. 

Commissioner Price said she differed some in the view that they would insult the public by putting the issue back on the ballot again, mainly because her perspective was she thought that issue somewhat rode the coattails of the Federal issue, and it wasn’t just a county issue, and she thought that perspective was a little different because they had lived with it long enough, and it had continued to be discussed, and there were merits and cons the other way.  She said one of the other concerns she had was if they had data and looked at perhaps the last ten years where there had been term limits, those percentages would be very low, and long term she was not sure that was healthy for the county, because as some of the new commissioners had commented, it did take a while to understand and learn the process, and about the time they probably got comfortable, she would guess that they were in their second term, and because of that she said her choice would be “B”.

The Chairman asked Commissioner Hunt for her comments.

Commissioner Hunt said her choice would be “A”.

The Chairman asked if she would care to amplify her choice?

Commissioner Hunt said no.

The Chairman said he did not believe in term limits himself, but he felt that term limits had been so ingrained in the hearts and minds of the voters that it would be difficult to get passage of a rescindment of the current term limits.  He said on the federal level it was unconstitutional.  He said it was clear that states could not impose a term limit on Congress.  He said individual congressmen could, as Mr. Canady did, and Mr. Weldon did until he decided to run for a third term.  He said he thought it was unwise, and having been in an elected office he knew it took, if one was diligent, two years to become productive.  He said he thought the Florida Legislature was experiencing a crisis because of the fact that we have a lot of inexperienced legislators.  He said he thought Kurt told him that fifty-two percent of the members of the House were freshmen.  He said he knew when they looked back on some of the experienced legislators that they had, and Curtis Peterson was one of them, and the work that they did based upon some long experience there, which was very helpful.  He said of course there had been some insidious examples as well, that he knew that they could quote. He said he would like to see it go away.  He said he thought the real fundamental problem was education of the voters.  He said when the voters got into the voting booth many of them were voting impressionistically, and they were voting not so much based on what the Ledger editorials say, because he didn’t think their score card had been very good in terms of results of the election, and he said he knew he was endorsed by them once and lost.  He said he thought the real problem was education of the voters, and unless they could overcome that challenge, and get the voters better educated so that when they go into the ballot box they were able to make really discerning choices, he was afraid they were going to be stuck with that situation.  He said he was going to reluctantly put his oar in boat “A”.

Commissioner McLaughlin said he would like to have a point of clarification regarding the current system, because he was reading the language then.  He read the language to the Commission.   He said because the language had the word “current term of office” he was assuming that a commissioner could serve eight years, sit out four, and then run again. 

Chairman Costello said unless he or she resigned. 

Mr. Watts said one could not resign just to end the term because it would preclude them.  He said the language also read they could not appear on the ballot.  He said one could apply as a write in candidate. 

The Chairman said there was at least one commissioner in Hillsborough County who was currently serving who sat out four years, and then came back and won re-election for another eight years. 

Commissioner McLaughlin said just as a follow up, if there was a situation such as in New York where there was one commissioner that people just overwhelmingly wanted to keep, just like people wanted to keep Mayor Giulliani, there could be an uprising to write them in on the ballot, and in their particular qualifications that would pass muster and they would be serving in that office if they achieved a majority vote.

Mr. Watts said campaign literature might consist of a sticker that one peels off and sticks on the write-in ballot.

Commissioner Moore Bailey asked Mr. Watts if his answer to Commissioner McLaughlin’s question was yes, that could happen?

Mr. Watts said once someone had served two terms the language precluded their name from appearing on the ballot, and it did not preclude them from being elected if the voters went to the trouble of writing them in, nor did it preclude them from sitting out four years or two years, if they were going to jump into some other seat.

The Chairman asked the Commission if they were ready to make a motion with A, B, or C, with “A” – being no change, “B” – being eliminate term limits, and “C”- being adjust.

Commissioner Moore Bailey said she would like to offer a motion to elect “A”, as two terms. 

The Chairman asked if that was no change?

Commissioner Moore Bailey said that was correct.

The Chairman said in other words, her motion was to keep the Charter language with respect to term limits the same?

Commissioner Moore Bailey said yes, two terms, which was what it was then, which would be choice “A”.

The Chairman asked if there was a second to Commissioner Moore Bailey’s motion?  Commissioner Nunnallee seconded the motion. 

The Chairman asked if there was further discussion, there was none.   He asked Ms. Swearengin to call the roll for a vote.  The results were 7/4 with the ayes prevailing.  The Chairman said that eight votes were needed to have a 2/3rds vote, and in a sense that was academic because unless someone wanted to make a motion for “B”, or “C” then “A” would be it. 

The Chairman asked if someone wanted to make a motion for either alternative “B”, which would be to eliminate term limits or alternative “C” which would be adjust the present term limits?  No one was interested in making a motion to that affect, and he said without objection, he thought the sense of the Charter Review Commission was that the charter language with respect to term limits would remain the same. 

The Chairman said that the next issue up for discussion was “Part Time – Full Time”, and he asked Mr. Watts for his comments.

Mr. Watts said that issue was something that no one had to research before, and he would tell them where he was with the research and what his conclusion was.  He said his conclusion was that there was no such thing as a part time county commissioner, and it takes the amount of time that it takes.  He said some would give less time and may hold outside employment, and there was no preclusion against that so long as the employment didn’t cause recurrent conflicts of interest in voting on issues that had to come before the Board of County Commissioners.  He said the only limitation on that was that two constitutional offices could not be held at the same time with county commissioner being one.  He said the way the charter described the duties of the office, were the same as a charter county commissioner, as they would be in a non-charter county, and in fact they were somewhat additional if they read through Article 2 of the Charter.  He said there were some additional duties, and the county commissioners were the ultimate repository of all powers of the county charter government that were not placed with any other officer, and they were the catchall.  He said the duties were what they were, and in some counties they were treated as full time, and in some counties they were treated by the charter as being somewhat less onerous, and the only difference seemed to be measured by what salary was set on it.  He said people figured they get what one pays them for, and if one pays them less than they thought one wants less, and they may tend to give one less.  He said some others might tend to give one more.  He said when the Volusia Charter was first adopted the salaries were set at $4000 per year, and they got a lot of people that were retired or independently wealthy, and they didn’t depend on the salary, but salary was later increased to be the same as School Board Members.  He said in the thirty years that the charter had stood it had never been the same as it was in the non-charter counties.  It was the intent of that charter commission that the manager be the executive head of the government, and the reason for cutting the salaries was to ensure that the commissioners didn’t sit around thinking they had to think up ways of interfering on a full time basis. 

He said he had looked at the personnel provisions in the statutes, and the provisions of the retirement system of the state, and they really didn’t shed any enlightenment on what was a part time office or what was a full time office when one was dealing with an office like that of a county commissioner, which under Polk County’s Charter, has all of the powers of a constitutional county commissioner in a non-charter county.  He said there really wasn’t any way of differentiating them in the Florida Retirement System.  He said they were entitled to the provisions that the retirement system makes for them, although the amount of salary that is credited to their account in the retirement system would be less under the present Polk County Charter than it would be in a non-chartered county.  The percentage that they get for each year of service would be the same, but the salary credits that they get would be different. 

He said in private employment usually the boundary that was thought of in hourly workers between part time and full time status was somewhere around thirty-two hours.  He said above thirty-two hours one was thought of as full time, and one received benefits that went with full time employment.  He said there was no such provision in government employment and particularly in elective office to distinguish between what is part time and what is full time employment. He said his advice to them was once they were elected they were a full time public officer, and they need not devote their full time to it, but they were full time to the extent that they were precluded from holding any other public office.  He said that was the best that could be done according to the law now.

The Chairman asked if the Commission had questions for Mr. Watts?

Commissioner Masters asked if the Commission stated they were part time who would challenge that?

Mr. Watts said no one would challenge that decision, and he asked Commissioner Masters to define part time, and he stated there was no such thing as part time.

Commissioner Masters asked if the Commission could define what part time was who would challenge it?

Mr. Watts said no one. 

The Chairman asked the commissioners to please wait to be recognized because it was very important for the taped recording. 

Commissioner Strang asked Mr. Watts if he knew of any jurisdictions or any charters, which stated specifically that a county commissioner was a full time job?

Mr. Watts said no.

Commissioner Price said her only comment would be that the new commissioner that was elected who found themselves working sixty hours a week might beg the issue of part time. 

Commissioner McLaughlin said he would echo Commissioner Price’s comments, and the person that would suffer the harm would be the commissioner, and if any one were to challenge it, it would be the commissioner, and he would think that they would have standing in court.

Mr. Watts said if they wanted to challenge the power of the charter to limit their salary.  He said the Constitution said that charter governments have all powers of local self government except where it is inconsistent with general law, and it also says that the charter can set up the legislative branch, however the people see fit, and it says that there will be a board of county commissioners unless otherwise provided by charter.  He said his view of that had been that the limitation on powers inconsistent with general law is a limitation on the legislative authority of the county government.  It is not a limitation on their power, so if the office is prescribed in the charter and the salary is prescribed in the charter, and someone runs for that office with that salary, he didn’t know what the basis would be for challenging the salary after being elected to the office. 

Commissioner McLaughlin said he was actually referring to the part time/full time status and not necessarily the salary.  He said assuming that the salary was increased to $50,000 but coupled with that increase was also the requirement that it become a full time position, and that they could not be employed in another capacity unless it was an investment income or something of that nature.  He said if one of the commissioners happened to be a realtor and was involved in a real estate transaction and then some watch dog group raised a question saying they were now acting as a realtor, it would seem to him that commissioner might go back and say he was still working full time, and was not in violation of the charter, etc., etc.  He said he was actually referring to the full time/part time status and not necessarily the salary issue. 

Mr. Watts said, so the question was whether one could take another moonlight job?

Commissioner McLaughlin said that was correct. 

Mr. Watts said in most of the rural counties that was sometimes a necessity because the salaries that were prescribed by the general law were much lower for some of the very small counties.  He said if the charter prohibited outside employment, and he didn’t know of another charter that did that, and what there was a provision for in Chapter 112 was that one could not take any outside employment that would create recurring conflicts of interest with public duties, so that one would have to remove oneself from voting. 

The Chairman said he thought that the choices there were fairly clear.  He said either the Commission includes language in the charter with respect to full time/part time or they don’t.  He said the choices would be “A” – Include language or “B” – Don’t include language. 

Commissioner Strang asked if that would be a two or three part question?  He asked if it would be “A” – Silent on the subject, “B” – Full time, or “C” – Part time?

Chairman Costello said he divided the choices into two, silent or full time/part time, and then if it was close to a two-thirds vote for the full time/part time then they could get into dividing the issue then, and he thought perhaps it might be easier to do those choices. 

Commissioner McLaughlin said he knew that his statement was somewhat out of order, but it seemed that particular issue was solely coupled with another issue, which was the salary issue, and he thought they were limiting themselves by not bringing up that issue at the same time. 

Chairman Costello said yes, that was true, but he asked that he remember where they were, and they were not indelibly stamping their decisions, and they could always return to that issue.  He said he knew the salary issue was going to be probably the most contentious and the most difficult issue, and he realized there was a relationship there because maybe Commissioner McLaughlin was saying as a trade off, but he knew how he felt about full time/part time, and quite frankly his strong personal conviction was that leaders were neither full time or part time they were all the time.  He said the very essence of leadership is not to put a clock on it, and they were leaders all of the time, and he thought that was why the discerning voter needed to take stock of whether they were leading or whether they were assuming their responsibilities or not assuming their responsibilities, and take action accordingly.  He said that was his own personal feeling about that issue, and he did not think it related at all to salary. 

Commissioner McLaughlin said as a follow up, the problem that he was going to have was when he was asked to vote he would only say yes to full time if the salary was increased, and if the salary remained as it was he wouldn’t vote for full time.

The Chairman told Commissioner McLaughlin that he thought that it was clear whatever the salary was he had already made his choice, and that Commissioner McLaughlin would like the charter language changed to either full time or part time, and he asked Commissioner McLaughlin if that was correct?

Commissioner McLaughlin said, no that wasn’t correct, and his feeling was if the salary was not increased he would remain silent.

Commissioner Strang asked if they could go around the room and get each commissioner’s comments. 

The Chairman asked Commissioner Hunt for her thoughts on the issue. 

Commissioner Hunt said she agreed with the Chairman.  She said she didn’t feel that issue was related to salaries, and she felt it was related to the commissioner’s desire to be re-elected, and they should put in the time necessary.  She said she would not support any change in the language.

The Chairman asked Commissioner Price for her comments.

Commissioner Price said her choice would be “A”, which was to remain silent.

The Chairman asked Commissioner McLaughlin for his comments.

Commissioner McLaughlin said he believed that he had already spoken on the issue.

The Chairman asked Commissioner Stoer for her comments.

Commissioner Stoer said her choice would be “A”.

The Chairman asked Commissioner Nunnallee for her comments.

Commissioner Nunnallee said her choice would be “A”. 

The Chairman asked Commissioner Lindsey for his comments.

Commissioner Lindsey asked Mr. Watts if one were to elect part time would it exclude the constitutional charge for the office?

Mr. Watts said no, they still had to do the job. 

Commissioner Lindsey asked if there was an itemized list of things that would not be done any longer?

Mr. Watts said no.  They still had to perform all of the duties. 

Commissioner Lindsey said his choice would be “A”.

The Chairman asked Commissioner Masters for his comments. 

Commissioner Masters said his choice would be “A”.

The Chairman asked Commissioner Moore Bailey for her comments.

Commissioner Moore Bailey asked if “B” was full time or part time?

The Chairman said either.

Commissioner Moore Bailey said her choice would be “B”.

The Chairman asked Commissioner Strang for his comments.

Commissioner Strang said he could not believe that he agreed with the majority.  He said his choice would be “A”.

The Chairman asked Commissioner Allen for his comments.

Commissioner Allen said his choice would be “A”.

The Chairman said his choice would be “A”. 

The Chairman said if there was no further discussion on that issue, he thought they were ready for a motion either for remaining silent, and not proposing any amendments or revisions on that issue or to vote to include provisions with respect to part time or full time.

Commissioner Masters asked if he were on the prevailing side of the vote could he bring the issue up again?

The Chairman said yes he could.

Commissioner Masters made a motion that they remain silent, and Commissioner Hunt seconded the motion.

The Chairman said Commissioner Masters moved that the Charter remain silent with respect to the full time/part time issue, and Commissioner Hunt seconded the motion, and he asked if there was further discussion?

Commissioner Strang asked if the Charter were to enact or give the voters a referendum, and they voted for something that made that job a full time job, he said he could see that could create more headaches for the county commissioners than anyone could imagine because there would be all kinds of charges and counter charges, and probably litigation over whether a commissioner was doing the job on a full time basis, and there would probably be demands for a time clock, and time cards and demands that they drop their other employment and that sort of thing.  He said he thought that it would be a great disservice to the County Commission. 

The Chairman said and based upon past experience the Lakeland Ledger would have to hire more individuals.  He said he remembered some time ago the Ledger tracked one of the elected officials who was no longer in an elected office, and determined that whether full time or not he was acting as if it were a very part time job.  The Chairman said he didn’t run for election again. 

The Chairman asked if there was additional discussion?

The motion was for the Charter to remain silent with respect to the issue of full time/part time, and he asked Ms. Swearengin to call the roll for a vote.  The results were 11/0 with the ayes being in the majority.  The motion passed unanimously. 

The Chairman said the Charter would remain silent on the issue of full time/part time. 

Commissioner Lindsey asked if there was any merit in having the secretary call the roll in a different order?

The Chairman asked Commissioner Lindsey to explain why he would like the roll called in a different order.

Commissioner Lindsey said that Commissioner Allen was at a disadvantage of having to vote first on every issue, without the benefit of hearing others. 

Commissioner Allen said it didn’t bother him.

 The Chairman asked Commissioner Lindsey what the next reason was?

 Commissioner Lindsey said Commissioner Strang was always last. 

 The Chairman said if it was the pleasure of the Commission the secretary could reverse the order every other time. 

 Commissioner Masters asked if she could start at “A” and then on the next vote start with “B”.

The Chairman told Ms. Swearengin on the next vote not to start with the first name, but to start with the second name, and the next vote start with the third, and so forth. 

The Chairman asked that the Commission take a short ten-minute recess at 6:58 p.m., if there were no objections.  There were no objections.

The Commission reconvened at 7:10 p.m.

Salaries

The Chairman said the next item on the Agenda was the issue of salaries, and he said he wanted to introduce that issue by referring to Polk County Charter paragraph 2.5, and he read that paragraph to the Commission.  The Chairman said there were currently two county commissioners who were exempted from that salary provision at least for the remaining terms of their office, and they were Commissioner Wilkinson, and Commissioner Parker.  He said their salaries were set by statutory provisions and, as of the end of September, their salaries were $69,081, and effective October 1st the statutory limits were increased to $71,276, and for the remaining portion of their term in office they would be paid at that rate.  He said the County Commission approved unanimously a salary increase above the $33,500 level, and it amounted to a 3.4% increase, so the other three county commissioners would be receiving effective January 1, 2002, $34,639.  He said with that as an introduction he would ask Mr. Spitzer to brief the Commission further on the issue of salaries. 

Mr. Spitzer said there were a few different pieces of information that were sent in the mail, and he hoped they all received it, and if not, it was included in their packages that evening.  One item was a memo from him and the other was an attachment, which discussed the state salary schedule for county commissioners, school board members, and other elected county officials.  He said the last two pages of the latter document contained a table which made projections in terms of what the county officers’ salaries would be if the state system was being used, and they were the current salaries for that year, and they could see the constitutional officers and the county commissioners and the school board members for Polk County listed on the second page.  He said six of the seventeen charter counties utilized the regular state salary schedule, and that was a population driven system.  He said for a number of years the system had not been subject to a uniform schedule.  The system that evolved at that time was one where there would be widely different salaries set by the Legislature for different county officials by individual act of the Legislature that applied only to one particular county.  He said about thirty years ago the Legislature established a uniform system of setting salaries.  He said most of the charter counties utilized that system.  He said there were six including Polk that had made some adjustments, and they were listed in the memo that he provided to them.  He said he would like to clarify one point in that memo concerning the Brevard County Charter.  He said as he was preparing that memo there was some discussion as to what the policy actually was in Brevard County.  He said they discovered some technical glitches in the copy of the charter that he was operating from, and he made a call to the county attorney, and he relayed the information that they saw in the memo to them concerning how their salary works.  He said basically the memo said that it was set at the state rate as provided in 1996 plus adjustments done by ordinance equal to the consumer price index or the amount granted to county employees, whichever was less.  He said that was not an accurate reflection of what the charter said.  He said that was an accurate reflection of what board policy was, but the charter provided that the county commission may make adjustments to the county commissioners salaries by ordinance up to, but not exceeding what the rate would be for non-charter counties of similar size.  He said it was a starting point based at the 1996 state salary amount, and the county commission could increase that, but not beyond what the state salary schedule would have provided for Brevard County. 

He said the other charter polices were listed.  He said he would note that most were either in counties where there was an elected executive form of government, such as Dade, Duval, Orange, or in Volusia where Mr. Watts noted earlier there was a very strong county manager form of government, and there was a difference there.  He said their options were numerous ranging from making no change to going back to the state schedule, to patterning their policies in a similar fashion to what some other counties have done, to either allow the county commission to set the salary by ordinance, or peg it to the amount set for school board members, which was very similar to what was had then, or to go back to the state amount, but make adjustments given the number of county commissioners that they at the present time were considering.  He said one thought would be if the state schedule would result in X number of dollars spent by the county on commissioners salaries, and if they went to seven commissioners, but wanted to keep the total dollar amount at the state amount that would have been paid for five commissioners they could take the state schedule and multiply that times by 5/7, which would be roughly 70% of salary. 

He said he would be happy to answer any questions.

The Chairman said one approach the Commission could take on that issue would be to divide it into two parts, either to keep it exactly the way it was, with no change, or to elect to make some sort of change to either lower it, or to increase it, or to come up with some other change in the language presently existing in the charter. 

The Chairman asked if the Commission had questions for Mr. Spitzer on that issue?

Commissioner Lindsey asked when a commissioner was elected and assumed office, didn’t they take on the role, the stature, and the standing as a county employee?

Mr. Spitzer said he believed they were county officers.

Commissioner Lindsey said he was particularly interested in health insurance, and he asked if they participated in that at the same level as an employee?

Mr. Spitzer said yes.

Commissioner Lindsey asked since they were full time or part time the job didn’t change, and they were not limited by vacation or sick leave, but it was whatever the job took?

Mr. Spitzer said yes.

Commissioner Lindsey asked at the county commission level for the state retirement plan if the term to be vested was eight years?

Mr. Spitzer said he was not sure, but it was eight years for elected officers.  He said there was recently passed a significant change to the whole retirement system, which for rank and file employees was six years.  He said he did not know if that applied to elected officers as well. 

Commissioner Lindsey asked six years as rank and file?

Mr. Spitzer said yes, whereas it use to be ten years for rank and file, and that had been reduced down to six years, but he didn’t know if that applied to elected officers.

The Chairman said the multiplier for an elected official was higher than the multiplier in terms of final retirement pay than for a county employee. 

The Chairman asked for a regular employee if it was two points per year?

Mr. Spitzer said 1.6 for regular employees. 

The Chairman asked what the points were for an elected official?

Mr. Spitzer said he thought that it was around two percent. 

Commissioner Lindsey said back to his comment earlier in the evening regarding they did not have the discretion to exclude county commissioners from participating in the state retirement program, even though there was a provision that school board members, and he thought commissioners could voluntarily opt themselves out.  He said if there was a provision to voluntarily opt out, and the Charter were to impose it, who would have standing to challenge that if they forced the candidate to volunteer effectively?

Mr. Watts said he thought the question had several different aspects.  He said one of them was the actuarial soundness of the state retirement system.  He said the system for all of the classes including the elected officials class was supposed to be built on some sort of actuarial calculations as to age and mortality and so forth, and if someone were excluded from the state tables, he didn’t know whether the state could come in and say, well you have upset the actuarial apple cart or not.  He said the only standing a citizen would have to challenge it would be on the basis of some violation of the Constitution.  He said it would be hard to get there, and he was not saying that a creative lawyer couldn’t get there with a constitutional argument, but it had to be a constitutional argument.

Commissioner Lindsey said he would like to give him the answer, and he would like him to write the question.  He said if part of the distrust of government was the perception real or imagined, that once an elected official becomes elected, he begins to serve in his own best interests as opposed to the interests of the public, and that was fed by the fact that there were benefits that accrued in being a long term elected official, i.e., the pension benefits, eight year vesting, two times versus 1.6 times, and he felt they were working for the pension benefits.  He said add to that the fact that it was not uncommon for someone to serve six, eight, or ten years in one elected capacity, and go to another elected capacity and then compound those years of service.  He said if there was a way to take that out of the formula, so that rather than being employees of the county, they were simply delegates of the people.  He said as a board director as opposed to an employee, and if they could create a mechanism that treated them like directors instead of employees, and that was to pay them a gross salary, and if they wanted a pension plan then let them go see Met Life, and if they wanted a health insurance policy then go see Prudential, and not to treat them as county employees so that the day that they were elected they don’t go down to Personnel and sign up and start getting a regular salary and a regular payroll check like every other employee and beginning to think like an employee as opposed to thinking like a director.  He thought the answer was we want them to be treated and act like independent thinking non-employees, and so how do they get from where they were to that scenario?

Chairman Costello said he would like to ask a clarifying question, and he was referring to Mr. Watt’s memorandum of September 18, 2001 on the subject of the Polk County Charter Review Commission, and he read the conclusion of that memo to the Commission stating that excluding a county commissioner from participation in the county retirement system via Charter language would be improper, and he asked if that applied to the answer to Commissioner Lindsey’s question?

Commissioner Lindsey said before Mr. Watts answered that question, two months ago he told them they couldn’t do anything about the school superintendent, but to do it and then let some challenge it. 

Mr. Watts said he said it was a constitutional experiment. 

Commissioner Lindsey said that might be an experiment as well. 

Mr. Watts said it might be. 

The Chairman said, as he understood it, Commissioner Lindsey would like to change the Charter language, and what he was speaking to was his conviction that the charter language should be changed in some way? 

Commissioner Lindsey answered yes. 

The Chairman said that he would like for the other commissioners to give their thoughts on that issue.

The Chairman asked Commissioner Allen for his thoughts on that issue.

Commissioner Allen asked if the choices were either some change or no change?

The Chairman said yes, and if they wanted to change it how would they change it, and that was not for a vote, but was for discussion purposes. 

Commissioner Allen said for discussion purposes he thought that it should be changed to a higher level than it was at the present time.

The Chairman asked Commissioner Strang for his comments.

Commissioner Strang said he thought they should remain silent for all of the same reasons as he mentioned in his harangue on term limits, and perhaps for some other reasons as well, but he thought it had been too soon since the resounding of the referendum of last year.  

The Chairman asked Commissioner Moore Bailey for her comments.

Commissioner Moore Bailey said there were a couple of things that she was looking at.  She said as revisions they could adopt the state salary system, the same as the school board members, or they could adjust the recommendation based upon the number of commissioners that they talked about increasing to seven, and their salary therefore would have a $17,000 increase, which would come up to $50,677 and it would still be $20,000 less than $71,276.  She said it was a very difficult situation in terms of how she felt about that, and she did know that the work was very taxing, and they were full time all the time, but whether they did a full time job all the time was a question only they could answer.  She said she would have to agree with Commissioner Strang that perhaps on that issue she would remain silent. 

The Chairman said he did want to point out that if their salary was tied to the School Board’s salary that would represent a decrease below their current salary $34,639. 

Commissioner Moore Bailey said she wasn’t saying to do that. 

The Chairman said he knew that she wasn’t, and he was just pointing that out to the others. 

Commissioner Moore Bailey said that she was only saying that was a suggestion that they were given. 

The Chairman asked Commissioner Masters for his comments.

Commissioner Masters asked Commissioner Lindsey to clarify his earlier suggestion regarding getting the commissioners to an independent status?

Commissioner Lindsey said for the commissioners to be treated not as employees, but as an independent board of directors, for lack of better analogy, not as an employee with all of the other benefits that go with that for retirement and disability and health insurance, and all of the other trappings of the office. 

Commissioner Masters asked if he wanted to go down that path where would it leave him in the voting process?

The Chairman said he would want to change the language. 

Commissioner Masters said his choice then would be to change the language.

The Chairman asked Commissioner Nunnallee for her comments. 

Commissioner Nunnallee said she would like to change the language. 

The Chairman asked Commissioner Stoer for her comments.

Commissioner Stoer said she would like to change the language. 

The Chairman asked Commissioner McLaughlin for his comments.

Commissioner McLaughlin said to change the language.

The Chairman asked Commissioner Price for her comments.

Commissioner Price said to change the language.

The Chairman asked Commissioner Hunt for her comments.

Commissioner Hunt said she would like to change the language. 

The Chairman said he would like to see a combination of things happen.  He said first of all, he did not believe that the Charter language should be the same as the statutory limits.  He said he thought that the statutory limits were too high.  He said he would like to see some sort of combination, and the salary level is set in the Charter, and he believed that it was set a little too low, but he thought that the Charter should set the level of salary, and the other thing the Charter should do is to give the electorate an opportunity to pass on the judgment of the commissioners who vote to increase their pay.  He said he thought that in one of the charters that he read that it requires the commission to act on any increase in their pay by October 1^st prior to the general election, which would be every two years, and then the voters could make their judgment with respect to the individuals who were up for election during that general election as to whether or not that judgment was a sound judgment, so the commissioners would by ordinance increase their pay, and the voters would be able to react fairly quickly to that exercise of judgment, and number three there would be a limitation on how much the pay could increase.  He said he thought the limitations that currently existed in the Charter was a fairly good one, which was basically either the CPI increase or the average county employee increase whichever was less.  He said he had not decided whether it should be unanimous or not, but it probably should be.  He said he guessed that came down to he would like to see the language changed.  Maybe a little bit less than some and maybe a little bit more than others. 

The Chairman asked Commissioner Strang if he had an additional comment?

Commissioner Strang said it had to do with the question as to whether county commissioners were county employees or whether they were directors.  He said some of them might remember an event that occurred several months earlier when one of the county commissioners said that everybody should be tested for drugs, which included all county employees and he said he would start with himself, but another county commissioner refused to undergo drug testing because he said he was not a county employee.  Commissioner Strang said he didn’t know how that commissioner classified himself, but it was a very interesting discussion. 

Commissioner McLaughlin said for purposes of discussion he didn’t elaborate on earlier, he thought  the Commission should change to some percentage of the state rate of pay, and that it should be done because they had numerous individuals and organizations, including the City Commission of Lakeland, the Chamber of Commerce and other elected officials and business leaders who had came in and said they were not paying their people what was fair and due.  He said at the same time, he didn’t think they should insult the voters, and go back to them and say what they did two years ago was wrong, and they didn’t know enough, and now they were changing it.  He said instead what he thought they should do is to give the voters another option, because they only had that particular option in front of them.  He said, who was to say, if they had other salaries whether it was $20,000 or $40,000 they might have chosen something different, and he thought that some particular percent of what the state pays would be appropriate, and for purposes of discussion he would throw out that they should pay them 30% less or 70% of the state salary.  He said in doing those calculations roughly because they had currently proposed to add two commissioners, it would roughly equal the amount of pay for five full commissioners. 

The Chairman said the state divides the counties up into five groups based upon population, and he thought Polk County was in group four, and group four’s salary effective October 1^st would be $71,276, so 70% of that would be $49,892, so the charter language from Commissioner McLaughlin’s standpoint would say 70% of whatever the statute was. 

Commissioner McLaughlin said he would actually make the point more clear to the voters by stating 30% less than the state, so that it would be clear that it was less, but the language could be worked out.  He said he thought it was clear that the voters had listened, and they think the county commissioners are being paid too much, and he said he thought $71,000 arguably was a lot to pay particularly if the commission was going to be expanded to two more commissioners, but at the same time, he thought the elector might want another option, and he thought that was a fair option. 

The Chairman asked with respect to keeping it the same or changing it, was there anyone that would like to put forth a motion with respect to one of those two choices?

Commissioner McLaughlin moved to change the current charter language with reference to salary.

Commissioner Masters said he would second that motion. 

The Chairman asked if there was discussion on changing the language of Article 2.5 of the Charter.  He reminded the Commission that the motion was on changing the Provision 2.5 in some way.  He asked if there was further discussion on that issue?  There was none.  He asked Ms. Swearengin to call the roll and to record the votes.  The results were 10/1 with the ayes being in the majority.  The motion carried. 

The Chairman said the Commission was obviously opting for some sort of change, and at that point they needed to discuss the nature of that change. 

Commissioner Masters said he would be interested in supporting a motion that Commissioner McLaughlin was suggesting, if he understood it correctly.  He asked for clarification purposes if a motion was needed to discuss that issue or could they discuss it?

The Chairman said no, they could discuss it.

Commissioner Masters asked Commissioner McLaughlin if what he was saying was the state rate was $71,000, and they were assuming five commissioners and that number would equal X, and then it would be divided by seven, and that would be what we would be paying them?

Commissioner McLaughlin said, the way he arrived at that figure, was he took $71,276 multiplied it by five, and he arrived at $356,380, and divided it by seven, which equaled $50,911.  He said if one took 70 percent of $71,276 the figure would be $49,893. 

The Chairman asked Commissioner McLaughlin under his scheme of things what the charter language would roughly say?

Commissioner McLaughlin said the Charter language would roughly say that the salary of the county commissioners would be set to 30% less than the state rate. 

Commissioner Masters asked if Commissioner McLaughlin was making his statement in the form of a motion?

Commissioner Moore Bailey asked if they could discuss that issue for a moment?

Commissioner McLaughlin said he would be happy to make a motion with regards to that statement, but it appeared there was some discussion. 

Commissioner Masters asked what would happen in Commissioner McLaughlin’s motion if seven didn’t pass and it was five?   

 Commissioner McLaughlin said it would still be 30% less.

Commissioner McLaughlin asked Mr. Watts if that issue could be tied into one particular ballot option, and the county commissioners would be increased from five to seven, and etc.?

Mr. Watts said that section of the charter could be rewritten to read differently, and what they would need to do is have a ballot summary that described the changes clearly.  He said they were not limited by the single subject rule in the amendments that they proposed. He said citizens were when they proposed amendments by petition, but they were presumed to know what the pluses and minuses and compromises were in addressing several subjects in a single amendment. 

The Chairman told Commissioner McLaughlin when he calculated his figures he took 30% of $71,276 and arrived at $21,382.80, and when he subtracted that amount from $71,276, he came up with $49,894 or there about, and he asked if that was what he got as well?

Commissioner McLaughlin said yes, give or take a few dollars, but roughly they were talking about $50,000  ($49,890). 

The Chairman asked if the Charter language would be in terms of percentages?

Commissioner McLaughlin said that was correct.

Commissioner Moore Bailey said her calculation was basi