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HomeMy WebLinkAbout1992-04-09 - City Commission Special Meeting MinutesApril 9, 1992 RECORD OF COUNCIL ACTIONS/DISCUSSIONS NOTICE OF SPECIAL MEETING CITY COUNCIL OF TAMARAC, FLORIDA There will be a Special Meeting of the City Council on IA- Thursday, April 9, 1992 at 1:30 p.m. in Conference Room #1 of City Hall, 7525 NW 88 Avenue, Tamarac, Florida. The Council will take action on the following items: 1. PRESENTATION by Bond Counsel Gerry Heffernan regarding bond refinancing proposal. FINAL ACTION : In accordance with the recommendation of the Bond Counsel and the evaluation of the City Attorney of that theory, a public hearing will be held on this. 2. MOTION TO APPROVE legal bills for Johnson, Anselmo, Murdoch, Burke & George for legal representation regarding Glasser vs. City of Tamarac in the amount of $7,597.38 and AUTHORIZATION to transfer $7,598.00 from Contingency Account #001- 72-588-975 to City Attorney Legal Services Account #001-106-514-312. FINAL ACTION : APPROVED. C/M Katz requested paperwork on lawsuit pertaining to Norman Abramowitz from City Attorney Kraft. 3. MOTION TO APPROVE legal bills for Akerman, Senterfitt & Eidson for egal representation for Norman Abramowitz regarding Glasser vs. City of Tamarac in the amount of $5,275.33 and AUTHORIZATION to transfer $5,276.00 from Contingency Account #001-872-588-975 to City Attorney Legal Services Account #001-106-514-312. FINAL ACTION : ' APPROVED. C/M Katz requested paperwork on lawsuit from City .Attorney Kraft. 4. MOTION TO APPROVE legal bills for Akerman, Senterfitt & Eidson for legal representation for H. Larry Bender regarding Glasser vs. City of Tamarac in the amount of $5,280.34 and AUTHORIZATION to transfer $5,281.00 from Contingency Account # Q1-872-588-975 to City Attorney Legal Services Account #001-106-514-312. FINAL ACTION : APPROVED. C/M Katz requested paperwork on lawsuit from City Attorney Kraft. 5. PRESENTATION by Community Development Director Kelly Carpenter regarding Tree Trust Prpgram. FINAL ACTION : Presentation was given by Kelly Carpenter. Expression of Interest wasgiven by Council. 6. PRESENTATION by BenchAds, Inc. regarding Bus Bench proposal. FINAL ACTION : Presentation was given by Mitch Caesar and Eric Nadel. Expression of Interest was given by Council. 7. PRESENTATION by Assistant City Manager Dina McDermott regarding Entranceway Beautification. FINAL ACTION : Presentation was given by Dina McDermott. Expression of Interest was given by City Council. 8. PUBLIC PARTICIPATION - Any member of the public may speak to any issue which is on t is meeting notice. Speakers will be limited to three minutes during this item and at public hearings. There will be a thirty (30) minute aggregate time limit for this item, and speakers are encouraged to sign up in advance with the City Clerk prior to their participation. The City Council may consider and act upon such other business as may come before it. All meetings are open to the public. Carol A. Evans City Clerk CAE /pm Pursuant to Section 286.0105, Florida Statutes If a person decides to appeal any decision mode by the tilt Council with respect to any matter considered at such nwWOV or hearing, he will need a record o. the proceedings and for such purpose, he may need to ensure that a verbatim record includes the testimony and evidence upon which the appeal is to be based w CITY OF TAMARAC SPECIAL CITY COUNCIL MEETING THURSDAY, APRIL 9, 1992 Tape 1 CALL TO ORDER Mayor Bender called the Special City Council meeting order at 1:30 P.M. in Conference Room #1, City Hall. PRESENT : Mayor H. L. Bender Vice Mayor Henry Schumann Councilman Norman Abramowitz Councilman Irving Katz Councilman Joseph Schreiber ALSO PRESENT : John P. Kelly, City Manager Dina McDermott, Assistant City Manager Mitchell S. Kraft, City Attorney Kelly Carpenter, Director of Community Development Mary Blasi, Finance Director Patricia Marcurio, Office Manager, City Clerk's Office Phyllis Polikoff, Secretary to Mayor Bender said the purpose of the Special Meeting was to take action on the following items: 1. PRESENTATION by Bond Counsel Gerry Heffernan regarding bond refinancing proposal. SYNOPSIS OF ACTION In accordance with the recommendation of the Bond Counsel and the evaluation of the City Attorney of that theory, a public hearing will be held on this. Mary Blasi introduced Gerry Heffernan., Bond Counsel, who represented the City with regard to four bonds which the City wanted to refinance. Mr. Heffernan said he read the Charter and advised there was a provision which authorized the issuance of municipal bonds. He stated the City could not issue bonds for refunding an acquisition or constructing a capital improvement until a referendum on the project or the bonds were approved by the citizens. He said the four bonds in question were issued in compliance with the Charter and the water and sewer bonds were combined and were issued to refund bonds which were issued in 1980 for purpose of acquiring the wastewater system east of State Road 7. Mr. Heffernan said refinancing the four bonds would retire an outstanding debt and would raise money to construct a new project. He advised that the City would be able to refund an outstanding debt which would reduce the cost to the City and this would reduce the overall debt service which would be passed on to the residents of the City. Mr. Heffernan said refinancing the bonds did not involve a capital project or an acquisition and it did not apply to the reason why the bonds should be refinanced. He said he did not know if the Courts would interpret this '4he same way. Mr. Heffernan said refinancing the bonds would save the City money. He stated: 1) The City could proceed to have the bonds refinanced and possibly be challenged by a resident who felt the Charter was not adhered to. 2) The City could go to the Circuit Court and get a declaratory judgement on the Charter provision. 3) The City could put a referendum before the residents. 4) The City could have a public hearing before bonds were issued. He said the market was slipping and. a further delay could result in a City Council Special Meeting 4/9/92/PP Page 2 reduction of savings. Mayor Bender asked City Attorney Kraft how he interpreted the Charter provision and City Attorney Kraft responded that he agreed refinancing the bonds would not involve a capital project or an acquisition. He said refinancing would save money for the City and a referendum would not be required although the Courts could determine this differently. C/M Abramowitz said the language in the provision was ambiguous and suggested it should be addressed in the upcoming Charter review. He also agreed this issue was not an acquisitor or a construction project and suggested that a public hearing should be held so everyone could express their opinion. C/M Abramowitz said the language should be defined with the indication 4 that the bonds were being refinanced for the express purpose of reducing the debt service. C/M Schreiber asked how much money could be saved by refinancing and Ms. Blasi responded she received estimates up to $2,000,000 over the life of the bond. Mayor Bender said he was concerned about the time frame because interest rates were rising and the Council had to make a decision based upon what was presently available. He said the key words were acquisition and construction purposes and they did not apply. He said his interpretation was that the City was not refinancing to extend or shorten the length of the bond but to reduce the debt. C/M Schreiber said the risk of a possible lawsuit was minimal compared to what the City would save and his opinion was to proceed to refinance. City Manager Kelly asked what the public hearing would do and Mr. Heffernan responded the City would be in a better position if a resident challenged the decision made by the Council. Mr. Kelly asked how soon a public hearing could be held and Mr. Heffernan said a public hearing for the bond resolution could be held when the next regular meeting was held. Mayor Bender stated a decision had to be made today. He stated the City could save a great deal of money with very little risk and there was a possibility the City could get money which ordinarily would come from raising taxes. * C/M Abramowitz MOVED that in accordance with the recommendation by Bond Counsel and affirmation by the City Attorney, the City shall hold a public hearing as soon as possible in order for the public to express their opinions, SECONDED by C/M Schreiber. VOTE : ALL VOTED AYE Mayor Bender requested Mr. Kelly schedule the public hearing at the earliest possible date and Mr. Heffernan stated he would draft the bond resolution. 2. MOTION TO APPROVE legal bills for Johnson, Anselmo, Murdoch, Burke & George for legal representation regarding Glasser vs. City of Tamarac in the amount of $7,597.38 and AUTHORIZATION to transfer $7,598.00 from Contingency Account #001-87-588-975 to City Attorney Legal Services Account #001-106-514-312. SYNOPSIS OF ACTION APPROVED. C M Katz requested paperwork on lawsuit pertaining to Norman Abramowitz from City Attorney Kraft. * C/M Abramowitz MOVED APPROVAL, SECONDED by V/M Schumann. Mr. Kelly said the bill was presented by the law firm which was authorized by Council and it was an interim bill. He said the City would not know it was a final bill until the lawsuit was resolved. City Council Special Meeting 4/9/92/PP Page 3 C/M Schreiber said he objected to approving the payment of this bill because in his opinion, the bill was excessive and he questioned it. He said the bill had to be paid but asked for back-up to be provided in order to justify the amount. C/M Abramowitz said C/M Schreiber had asked why the City Attorney could not become involved and represent the City. He answered that it would be a conflict of interest. C/M Abramowitz said he was unqualified to state the bill was correct or incorrect and C/M Schreiber said he was familiar with legal bills. C/M Schreiber said he denied ever saying anything about the City Attorney representing the City but he did question why the law firm conferred with Attorney Carsky if the City was not involved. C/M Katz said he questioned City Attorney Kraft about something on the bill and indicated he would like to get copies of what was sent. He said City Attorney Kraft advised these were Supreme Court decisions. C/M Katz suggested this bill be TABLED until it was reviewed and substantiated'with documents sent to City Attorney Kraft. City Attorney Kraft said he was in receipt of some cases from the law firm and C/M Katz indicated the possibility of the cases eliminating some questions. He asked if another special meeting could be scheduled. Mayor Bender asked if the bill was reasonable and City Attorney Kraft said it was. C/M Abramowitz said the members of Council and City Attorney Kraft received correspondence from the attorneys who would represent the City. He said the attorneys were appointed by the City and City Attorney Kraft was advised that he should not become involved with this case. City Attorney Kraft said he agreed. City Attorney Kraft said he would send copies of everything he received to the members of Council and Mayor Bender stated he would not be able to determine if the bill was excessive after he reviewed everything. VOTE V/M Schumann A), E C/M Schreiber 14AY C/M Katz AYE C/M Abramowitz AYE Mayor Bender AYE 3. MOTION TO APPROVE legal bills for Akerman, Senterfitt & Eidson for legal representation for Norman Abramowitz regarding Glasser vs. City of Tamarac in the amount of $5,275.33 and AUTHORIZATION to transfer $5,276.00 from Contingency Account #001-872-5 8- 75 to City Attorney Legal Services Account #001-106-514-312. SYNOPSIS OF ACTION :. APPROVED. C/M Katz requested paperwork on lawsuit from City Attorney Kraft. * C/M Abramowitz MOVED APPROVAL, SECONDED by V/M Schumann. V/M Schumann said Item 4 should also be reviewed at this time because the bill was a duplication. He stated the same 2.60 hours was identified for Norman Abramowitz and H. Larry Bender and he questioned whether the attorney worked a total of 5.2 hour's and the hours were split or the attorney worked 2.60 hours. Mr. Kelly said this was not a duplication of services. He said the attorney stated he had worked 5.2 hours and the bill was split in half between the represented clients. Mayor Bender asked why there were two bills and Mr. Kelly responded that the City Council authorized the attorney to represent two individuals but not as a package. He said if Council authorized blanket coverage for two �J� City Council Special Meeting 4/9/92/PP Page 4 individuals, there would have been one bill. C/M Schreiber reiterated his objection to approve payment of this bill. He said the City was not obligated to pay Mr. Abramowitz's bill because Mr. Abramowitz was not named as a defendant. He said City Attorney Kraft issued correspondence which indicated that in order for a public official to be entitled to representation at the public's expense, the litigation had to arise out of the public official's duties. C/M Schreiber said Florida Statute, Section 112.3143, provided that no municipal officer could vote in his official capacity on anything which would inure through his personal gain. He added if Mr. Abramowitz voted, he would benefit because the bill he was responsible for would be paid. C/M Schreiber said he was also concerned about why two bills were presented. Mayor Bender stated there was correspondence and a legal opinion from former City Attorney Ruf regarding the issue of whether Mr. Abramowitz was implicated in the lawsuit. He said Mr. Abramowitz's name was mentioned along with his own and whatever happened to one would happen to both. He said there also was correspondence regarding the voting issue. City Attorney Kraft advised C/M Schreiber was out of context regarding his legal opinion of February 25. He said there was a question about justification to pay the individual legal fees and on February 12, 1992, Council took legislative action and authorized the hiring of a separate attorney to handle the defense of Dr. Bender and Mr. Abramowitz. He said according to the Florida Constitution, Article 8, Section 2(b), the legislature of the City had the right to determine what was in the public's best interest, unless the vote was overturned by legislative action or a Court decision. Mayor Bender asked if Council members could vote without having a conflict of interest regarding legal fees and City Attorney Kraft said, yes. C/M Abramowitz said he disagreed with C/M Schreiber about not being implicated because his name was indicated on Page 9 of the lawsuit. He said outside attorneys were hired because they were highly qualified and an expert in this type of lawsuit. Tape 2 C/M Schreiber asked what would happen if a Court determined the City was wrong in its decision and City Attorney Kraft responded the legislative action of the City was not in the Court but the Glasser vs. the City lawsuit on another matter was. He said only the legislative action of the City could be challenged. C/M Schreiber asked if the legislative action of the City could be challenged in Court or by the Attorney General and City Attorney Kraft stated the Attorney General could only render an opinion and he had no authority. Mayor Bender asked if he saw anything questionable or unreasonable on the bills and City Attorney Kraft said, no. C/M Abramowitz reiterated that the attorney representing Dr. Bender and himself took the total bill and split it in half and City Attorney Kraft said it was the same litigation. C/M Katz asked City Attorney Kraft to interpret his February 25 opinion and City Attorney Kraft read a portion of this document and said he would make it part of the record. (See attachments). 0 VOTE C/M Abramowitz AYE C/M Katz AYE C/M Schreiber NAY V/M Schumann P.,YE Mayor Bender DYE 4. MOTION TO APPROVE legal bills for Akerman, Senterfitt & Eidson for legal representation for H. Lamy Bender regarding Glasser vs. City City Council Special Meeting 4/9/92/PP Page 5 of Tamarac in the amount of $5,280.34 and AUTHORIZATION to transfer to City Attorney Legal Services Account #001-106-51 - . SYNOPSIS OF ACTION : APPROVED. C M Katz requested paperwork on lawsuit from City Attorney Kraft. * C/M Abramowitz MOVED APPROVAL, SECONDED by V/M Schumann. C/M Schreiber reiterated his comments regarding Items 2 and 3 and he objected to approving the payment of this bill. VOTE C/M Abramowitz AYE C/M Katz AYE C/M Schreiber NAY V/M Schumann AYE Mayor Bender AYE 5. PRESENTATION by Community Development Director Kelly Carpenter regarding Tree Trust Program. SYNOPSIS OF ACTION : Presentation was given by Kelly Carpenter. Expression of Interest was given by Council. Kelly Carpenter said in 1990, the City applied to the Broward County's Building and Zoning Tree Trust Program for $2,800, which was used for plants and trees at City Hall. She said the funds were available every other year and came from tree removal permits. Ms. Carpenter said the City was eligible this year and Broward County had projects over and under $10,000. Ms. Carpenter indicated the Community Development Department and the Public Services Department decided the following could be accomplished: 1) landscaping the median on Nob Hill Road 2) landscape Northwest 70th Street from Pine Island Road to University Drive 3) set up a nursery and tree farm on Land Section 7 wherein seedlings, saplings, trees and other tree! and plant paraphernalia, other than equipment, would be purchased. Ms. Carpenter stated she informally recommended the City nursery and tree farm to Mr. Kelly and for him to submit the application to Broward County's Tree Trust Program. She said, at this time, she could not provide costs. Ms. Carpenter said under the same Program, neighborhoods could also apply for funding if their application was supported by the City. She said Boulevards of Tamarac have requested an application for funding which was presently being evaluated and she could make a recommendation to Mr. Kelly as to whether or not the City should support their application. Mr. Kelly said Ellen Tomas, resident of the Boulevards of Tamarac, spoke before the Council and complained because the City had not supported her application last year but it was unavailable last year. Mr. Kelly said before he made a recommendation to the Council, he requested a letter and minutes from the association meeting that wanted and supported the request for funding. He indicated that he made this request of Ms. Tomas. C/M Abramowitz asked why the City would not support an application and Mr. Kelly said maintenance, irrigation, type of vegetation and the canopy assocated with the trees were a few reasons. C/M Abramowitz asked if stipulations could be a part of the criteria and Ms. Carpenter said she was evaluating this. C/M Katz asked whether Ms. Tomas' request would lessen the funds the City would receive and Ms. Carpenter said Ms. Tomas' application would be a separate request. City Council Special Meeting 4/9/92/PP Page 6 * C/M Abramowitz MOVED that based on the recommendation of the Community Development and a forthcoming recommendation from City Manager Kelly, the City EXPRESSED their INTEREST in supporting a tree nursery and tree farm. Mr. Kelly said the MOTION was moot because the City did not have an actual proposal and Council would be able to MOVE when the project was formally proposed. He said the discussion was just to alert Council and they did not need to do anything now. Mayor Bender indicated that Council showed an EXPRESSION OF INTEREST. 6. PRESENTATION by Bench Ads, Inc. regarding Bus Bench proposal. SYNOPSIS OF ACTION : Presentation was given by Mitch Caesar and Eras Nadel. Expression of Interest was given by Council. Mitchell Caesar, Attorney representing Mr. Nadel, said he had questions regarding the agreement pertaining to advertising at bus shelters proposed by the City. He introduced Eric Nadel from Bench Ads, Inc. Mr. Nadel said the business started 10 years ago in Sunrise, Florida, and operated in Broward and Dade Counties. He stated the benches were owned and maintained by Bench Ads, Inc., and the City would receive a portion of the revenue derived from the advertising. He said his benches would be placed at bus stops and locations where there were no shelters. Mr. Kelly asked Mr. Nadel several questions about the benches and the bus shelters and if he was aware that Broward County planned to eliminate a bus route. Mr. Nadel responded he had just seen the new proposal a short time before. Mr. Nadel indicated benches with advertising would be placed at bus stops and benches without advertising would be placed in residential areas. He said he was unsure about the number of bus stops because Broward County Transit would not discuss this information with a private enterprise. Mr. Caesar said a study was done of the number of appropriate bus stops and their locations and what would be requested to eliminate any competition with the current vender. He said benches and shelters would be placed in areas where there were no other benches or shelters. C/M Abramowitz asked if BenchAd was legally prohibited from putting in benches or shelters at locations other than bus stops and Mr. Nadel said, no. Dina McDermott said the initial proposal did not fit the City's format and City Attorney Kraft drafted another format which had not been discussed or negotiated. She said this was presented to Bench Ad, Inc. this morning. She said both proposals were attached and Mr. Nadel said he was satisfied with the City's format. Mr. Kelly advised Mr. Nadel that the City was in disagreement with the current vendor who was obligated to expand and provide bus shelters where presently there were bus stops. Mr. Nadel said his company was prepared to remove benches and place them elsewhere. Ms. McDermott asked if there was a problem if a bench without advertising was placed near a shelter in a very busy location and Mr. Nadel responded this would be at the City's discretion. He said one panel at a shelter returned $300 per month and a bench could return up to $50 per month. Mr. Caesar stated if the proposal was approved today, Mr. Nadel would be happy to discuss the locations. C/M Abramowitz said a service could be provided to the residents and funds could be given to the City. Mayor Bender asked for a concensus from Council to approve this item and then suggested the proposal be negotiated with the Staff. He said it could then be presented in its final form. Mr. Caesar said he agreed. City Council Special Meeting 4/9/92/PP Page 7 V/M Schumann questioned Paragraph 2 on Page 4 which pertained to advertising which the City found objectionable and the time frame in which it would be removed. He requested that advertising should be shown to the City before it was put on display at the shelter. C/M Katz asked if the benches would be put on concrete bases and Mr. Nadel responded, no. C/M Katz said he disagreed and suggested that Mr. Nadel should look at Paragraph 9 on Page 6. V/M Schumann asked if this presentation had anything to do with the presentation made by the JayCees and Mr. Caesar said, no. Mr. Kelly said he was concerned about advertising pollution and Mayor Bender suggested someone involved with Sign Ordinances should be present when the proposal is discussed. 7. PRESENTATION by Assistant City Manager Dina McDermott regarding Entranceway Beautification. SYNOPSIS OF ACTION : Presentation was given by Dina McDermott. Expression of Interest was given by Council. Ms. McDermott stated Council had expressed a desire to beautify entranceway signs at specific locations coming into and leaving City limits. She distributed a proposal with suggestions and costs and she asked for Council's direction. C/M Abramowitz said he was happy that something was being done to beautify the entranceways into and out of the City. Mayor Bender said he agreed the location was very important. C/M Abramowitz suggested the signs should be made of molded, recycled plastic, if possible. C/M Schreiber asked for several venders to provide information and costs and Ms. McDermott said if Council approved, she would get many bids. V/M Schumann asked if anyone from the City manufactured signs made from recycled plastic and Ms. McDermott responded that she did not know. Mr. Kelly said the City would have to go outside the City to find a company who recycled plastics and one sign with its cost will be acquired for the Council to study. Mr. Kelly said Tamarac had more entranceways than any other City in Broward County and Council would have to determine which entranceway had priority and Ms. McDermott said she would prepare a list of all the entranceways. Ms. McDermott said the Florida Department of Transportation had specific standards and some thoroughfares, such as University Drive, had to meet these standards. Mayor Bender said he had no problem with this criteria and Ms. McDermott should concentrate primarily on the main north/south and east/west entranceways and the other entranceways afterwards. S. PUBLIC PARTICIPATION - Any member of the public may speak to any issue which is on this meeting notice. Speakers will be limited to thee minutes during this item and at public meetings. There will be a thirty (30) minute aggregate time limit for this item, and speakers are encouraged to sign up in advance with the City Clerk prior to their participation. Florence Bochenek, resident, asked what the criteria was for the request for landscaping with regard to the Tree Trust Program and Mr. Kelly responded that Broward County had the applications. Isaac "Zeke" Feldman, resident, stated his concerns about the legal bills and the lawsuit brought by Diane Glasser against the City. David Krantz, resident, stated he was very pleased that the City would be improving the signs for the City's entranceways. City Council Special Meeting 4/9/92/PP Page 8 Melanie Reynolds, resident, stated her concerns about the lawsuit brought by Diane Glasser against the City and she asked to see the same paperwork requested by C/M Katz. C/M Abramowitz distributed information (see attachments) and suggested the possibility of pursuing fireworks as a revenue producer for the City. He said the cost of each permit was $250 and many cities in Broward County were involved in the program. C/M Katz asked what the risk exposures were and C/M Abramowitz indicated the documents were self-explanatory and would answer questions. C/M Abramowitz asked for the status of the towing contract, which also would generate revenue, and Mr. Kelly responded it was in the process of being mailed. He asked for the status of the natural gas program and Ms. McDermott said $28,000 had been generated to -date. Ms. McDermott advised there would be a. Town Hall Meeting on Monday, April 13 at 1:00 P.M. in Council Chambers for the purpose of Multi -Family Recycling. Mayor Bender advised that the City was considering the construction of a golf driving range behind the Public Services Compound on Nob Hill Road and this would also be a money generator. Mayor Bender said he wanted to agen.dize discussion regarding the cable companies and Continental Cablevision for a Workshop. Mr. Kelly indicated Mike Couzzo, Director of Public Services, thought a golf driving range would be good for the City and suggested that Council should express their interest before further time was spent looking into it. C/M Schreiber suggested private individuals and not the City should do this. C/M Abramowitz said a driving range was an excellent money generator and it did not cost too much to open. Mr. Kelly asked Council to indicate if they were interested in having the Staff further research this suggestion. 1-1 City Council Special Meeting 4/9/92/PP Page 9 EXPRESSION OF INTEREST Mayor Bender AYE C/M Schreiber AXE V/M Schumann AYE C/M Abramowitz AYE C/M Katz AYE Mayor Bender ADJOURNED the MEETING at 3:05 P.M. H. BENDER X-YOR CAROL A. E ANS CITY CLERK I� CITY OF TAMARAC APPROVED AT MEETING OF 3 �- TO: FROM: 516c A4L C/J YCdc�uC/� LJ CITY OF TAMARAC CITY ATTORNEY INTER -OFFICE MEMORANDUM -NO. 921005 COUNCILWOMAN DIANE GLASSER MITCHELL S. KRAFT, CITY ATTORNEY FEBRUARY 21, 1992 REQUEST FOR LEGAL OPINIONS DATE: FEBRUARY 25, 1992 ------------------------------------------------------ You have put forth several questions which I have endeavored to respond to in an expeditious fashion. Question #1 - Did the Council at the last meeting authorize the hiring of a separate attorney for Mr. Bender and Mr. Abramowitz in addition to the Attorney who was hired to represent the City? If not, is the City responsible for these legal fees? Pursuant to the minutes for the Council Meeting taking place on February 12, 1992 the following three motions where made and passed by the Tamarac City Council. 1. Agenda Item # 17-Moti„a,.,lo agpLQva confirmation of the engagement of the law firm of Johnson, Anselmo, Murdoch, Burke and George as attorneys for the City in the litigation of Glasser vs. the City of Tamarac, H. Larry Bender and Jane Carroll, Supervisor of Elections, Case No. 92-02143. 2. Agenda Item # 18 - MD1QD to=RrrQvg that The City of Tamarac provide H. Larry Bender with a legal defense, due to being named as a personal defendant in the litigation of Glasser vs. The City of 1 'rl�gy 11 Tamarac, H. Larry Bender and Jane Carroll, Supervisor of Elections, Case No. 92-03143. 3. Agenda # 19 - Mo;ion to Approve that the City of Tamarac provide Norman Abramowitz with a legal defense if he is made a defendant or if he must intervene to protect his rights for election, in the litigation of Glasser vs. the City of Tamarac, H. L. Bender and Jane Carroll, Supervisor of Elections, Case No., 92-•03143. The first motion indicates that the law firm of Johnson, Anselmo, Murdoch, Burke and George was confirmed to represent The City of Tamarac. The Council via the second two (2) motions authorized the hiring of a separate attorney for Dr. Bender and Mr. Abramowitz. Question #2 - On what basis, if these individuals' legal fees when t present official duties, the public their present official office? Are legal fees to defend their right to a paid for by the City? any, can the City justify paying re lawsuit doesn't relate to their performance of their duties or they not attempting to obtain future office, which shouldn't be The Florida Supreme Court has held that: "Florida courts have long recognized that public officials are entitled to legal representation at public expense to defend themselves against litigation arising from the performance of their official duties while serving a public office..." The purpose of this common law rule is to avoid the chilling affect that a denial of representation might have on public officials in performing their duties properly and diligently... This entitlement to attorney's fees arises independently of statute, ordinance, or charter... for p&ic officials to be entitled to re r sentation at j2ublic ex ense the litigatign must 1 ri for -inn h thgir official duties and 2 serve a public purpose. " Emphasis added) Thornber v. Qity of Ft —Walton Beach 568 So. 2d 914 (Fla. 1990). There is also a statutory remedy providing for payment of attorney fees to public officers, employees or agents. Fla. Stat. Sec. 111.107 (1991) provides that "Any agency of the State, or any County, or Municipality, or Political Subdivision of the State, is authorized to provide an attorney to defend any civil action arising from a complaint for damages or injury suffered as a result of any act of omission of action of any of its officers, employees, or agents for an 2 act or omission arising out of and in the scope of his employment or function, unless in the case of a tort action the officer, employee or agent acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety or property. Fla. Stat. Sec 111.07 further states that if any agency of the state or any county, municipality, or political subdivision the State is authorized pursuant to this section to provide an attorney to defend a civil action arising from a complaint for damages or injuries suffered as a result of any act or omission of any of its officers, employees, or agents and fails to provide such attorney, such agency, county, municipality, or political subdivision shall reimburse any such defendant who prevails in the action for court costs and reasonable attorneys fees. The City Council of The City of Tamarac on February 12, 1992 after being advised by its Counsel as to the applicable law took legislative action and authorized the hiring of a separate attorney for Dr. Bender and Mr. Abramowitz. Pursuant to Article VIII, Section 2(b) of the Florida State Constitution, municipalities are authorized ;to "exercise any power for municipal purpose except as otherwise provided by law". Fla. Stat. Sec. 166,021 (1991) provides that municipalities may exercise any power for municipal purposes, except when expressly prohibited by law. Generally, courts will not enjoin the exercise of discretionary powers, conferred on municipalities unless the act complained of is illegal, fraudulent, or clearly oppressive. Town of Pillrn Bggh v. Palm Beach Countv. 332 So 2d 355 (Fla. 4th DCA, 1976). It has been further held that there are no Florida cases or legislative acts that either specifically or by necessary implication prohibit the expenditure of public funds for any lawful purpose found by a unit of local government to be in the public interest, provided that local government otherwise has the power or authority to act in the matter under consideration. Furthermore the Court has held that questioned expenditures must be tested on a case by case basis, the inquiry is one for the judicial branch, and the issue to be resolved is whether the particular expenditure offends the Constitution of the State of Florida, laws of the State of Florida, or K d-l'a fundamental concepts of justice and fair play. Palmf 2-Wh C v Hudspeth 540 So 2d 147 (Fla. 4th DCA 1989). It appears that on February 12, 1992 the City Council in its legislative capacity exercised its discretionary power and determined that it was in the public Abramowitz and Dr. gender a legal defense interest to provide Mr. Hence, until such time as the expenditure is challenged in court and there is a judicial determination or the Council takes legislative action reversing its earlier action the City has obligated itself to pay for the defense of Dr. Bender and Mr. Abramowitz. tion # - Can members of Council vote without having a conflict of interest for their own legal fees? Fla. Stat. Sec 112.3143 (1991); provides that no county, municipal, or other local public officer shall vote in his official capacity upon any measure which would inure to his special private gain. Fla. Stat. Sec 112.313 (5) (1991) provides that no public officer shall be prohibited from voting on a matter affecting his salary, expenses, or other compensation as a public officer, as provided by law. When it is determined that a public officer is entitled representation at the to public expense in a lawsuit arising from performance of official duties while serving a public purpose, the public officer is not prohibited by Fla. Stat. Sec 112.3143 from voting on issues concerning the reimbursement of legal fees. S e e mi in�E�hiQ Advises Qninion 88-46, July 29, 1988. QRff11ion---#-4 �_ If two council members are litigating an issue and council obligates itself to pay only one sides legal fees, is the other council person being denied due process and equal protection under the law? As indicated in my response to Question #2, City Council has the right to determine what is a proper expenditure of public funds in the public interest. It is sides possible for the legal fees is in City the Council to determine that paying nlnot public interest. For such adecissi nto ' 4 �i survive constitutional scrutiny it must be shown that the distinction does not rest upon any reasonable basis but is arbitrary (See e.g. Shelton v. Rggder 121 So 2d 145 (Fla. 1960); A ainst Tax Rev. v. County of Leon 583 So. 2d 1373 (Fla. 1991). Question #5 - In 1984 the Citizens of Tamarac voted for a two (2) year two (2) terms limitation on any councilman's right (including the Mayor) to serve on council. They never voted on any exceptions to term limitations, which the City is currently defending. A. Should the City be expending legal fees for outside counsel to defend the exceptions to term limitations when the public never voted for these exceptions and when the Tamarac citizens specifically voted unequivocally for limited terms. B. Are you obligated to disclose these new facts to the Council to decide if Council wants to continue to defend this lawsuit at great public expense? On February 12, 1992 the City confirmed. the retention of E. Bruce Johnson to defend the City on the litigation which this question is related to. I have referred this questions to Mr. Johnson who has directed me that because of the relation of this question to pending litigation it would be improper for me to respond. You or your attorney may bring any relevant facts to the attention of Mr. Johnson so that he may evaluate these facts and make his recommendation to City Council. Question # 6 - Mr. Abramowitz and Mr. Bender obviously could not find a South Florida attorney with whom they felt comfortable to represent them. They hired an attorney from Orlando to litigate the case. A. Is the City responsible for all the additional fees and costs as a result of hiring an out-of-town attorney? B. What are the limitations on the fees that the City would be responsible for with respect to offering a defense to the City as well as the two individuals who have hired the Orlando attorney? Is this obligation unlimited to the extent of the City's treasury? Should the Council impose a limitation on the City's expenditure if they deem it necessary to continue defending this lawsuit? 5 The City in its action of February 12, 1992 did not impose a limitation on the fees that the City will be responsible for with respect to both the City's representation and Dr. Bender and Mr. Abramowitz's representation. The attorneys who are representing the City pursuant to the February 12, 1992 motions are governed by the Attorney's Rules of Professional Conduct. In particular, Rule 4-1.5 which speaks to fees for legal services. Rule 4-1.5 ',provides that "an attorney shall not enter into an agreement for, charge or collect an illegal, prohibited or clearly excessive fee." If it 'is the decision of the Council that it has been charged an unreasona le fee and the matter is not able to be resolved between the City aid the attorneys, that matter can be taken up through the proper means at a later time. Q-umti n #7 - Why couldn't t�e City Attorney's office defend this suit? If there was a conflict ofinterest, please explain it? Pursuant to City Attorney Memo #92-001 RKT (attached hereto), the prior City Attorney received an opinion from Cynthia Booth, Esq., an attorney with the Florida Bar indicating that it would be an impermissible violation to the Rules of Professional Conduct (Rule 4-13(a) and (b)) for the City Attorney's Office to defend the lawsuit (Glasser v Tamarac et. al.) The City Attorney is employed by and serves at the pleasure of the City Council and Mayor. He is charged with the responsibility of representing both the City and its officers, pursuant to Article 11 of the City of Tamarac Charter. In a situation where one member of the Council is suing other members of the Council and the City the conflict is inherent and the proper course of action is to retain independent special counsel to represent the City in the particular litigation, Queation # D - Why couldn't the City's special counsel also represent the individual defendants so as to avoid a duplication of fees and costs? If there was a conflict, please explain it. Because your question speaks to the merits of the litigation, I have referred it to Mr. Bruce Johnson for his response. (See attached.) I have responded to your questions based on my understanding of the facts and law. As you suggested in your February 21, 1992 request W �9 -�M 5x,#-3 these questions are difficult but I have attempted to answer them as best as I could given the limited amount of time available for research. MSK/bjl cc: Mayor and City Council Members John P. Kelly, City Manager 7 40/'� " fi-rerr� 0-3 CITY OF TAMARAC INTER -OFFICE MEMORANDUM C/A #92-001 R KT TO: MAYOR AND COUNCIL FROM: ALAN F. RUF, CITY ATTORNEY ltn` RE: DIANE GLASSER VS. CITY OF TAMARAC BENDER AND JANE CARROLL H• LARRY DATE: FEI3RUARY 11. 1992 I have received an opinion from Cynthia Booth ~ ^ r r _ _ _ _ _ _ _ _ � ` � ' w � Association, that it would be an impermissible violation of the Rule Esq., an attorney with the Florida Dar Conduct (Rule 4-1.7(a) and b the above referenced suit. This s based upon the duties of s of Professional copy attached) for the City Attorneys Office to defend Article 11 of tite Citys Charter. the Ci responsibility of representing In essence, the Cityty Attorney set forth in the City ancf its c>.ffieers.Attorney is charged with the Since this suit will most. probably develop Anselma, Murdock, Burke most and George to represent the City. quickly, I have asked the firm h Johnson, our insurance defense matters, and therefore they are familiar with Charter and Code. Y This is the firm that handles which is reasonable. have agreed to represent the Cityhour personnel, our at a fee of $125.po per hour, If You have any objection to the action which I have taken on b contact me immediately. behalf of the City, please L.� Rule 1--l.fi RULES REGULATING THE FLORIDA BAR 5irnilarly, a lawyer has a duty under rule 4-3.3(a)(4) not to use false evidence. This duty is essentially a special instance of the duty prescribed in rule 4--1,2(d) to avoid assisting a client in criminal or fraudulent conduct. Second, the lawyer may have been innocently involved in past conduct by the client that was criminal or fraudulent. In such a situation the lawyer has not violated rule 4-1.'?(dl, because to "c:uunsel or assist" criminal or fraudu- lent conduct requires knowing that the conduct is of that character. Thir(i, the,, lawyer may learn that a client intends pro- spcctr:e conduct that, is criminal. As stated in pstragrraph (t,)e1), the, lawyer shall revoal information in order to prrr�e,lit such consequences. It is admittedly difficult for a lawyer to ' now" when the crin'tinal intent will actually be carried out, for the client may have a change of mind. 1'aral;raph (b)(2) contemplates past acts on the' part of a client `which may result in present or future consequences that may be avoided by disclosure of otherwise confiden- tial communications. Rule 1.6(b)(2) would now require: the att,�rne,v to disclose information necessary to prevent thf; future death or substantial bodily harm to another, even thoutrh the act of the client has been completed. The la x.vor':;--rc.iso of discretion requires considera- tion of ,ae•h factors as the nature of the lawyer's relation- �;hip with the client and with those who might be injured by the client, the lawyer'S own involvement in Litt, transac- tion and factors that may extenuate the conduct in (lues- tion. Where practical the lawyer should seek to persuade tin_ chent to take .,uit.tbk, action. In any case, a disclosure adverse W thr client's interest should be no greater than the lawyer rf.`:i'>onably believes uecussary to the. purpose. Withdrawal If the lawyet's services will be used by the: client in materially furthering ;t course of criminal or fraudulent conduct. the lawyer must withdraw, as stated in rule 4-1.16(a)(1). After withdrawal the lawyer is required to refrain from making di:;closure of the client's confidences, except as otherwise providc-d in rule 4--1.(;. Neither this rule not' rule 4-1.8(b) nor rule 4 - 1.16(d) prevents the lawyer from giving notice of the fact of withdrawal, anti the lawyer may also withdraw or disaffirin any opinion, documt,ttt, affirmation, or the like. Where the: client is an organization, the lawyer may be in doubt whether conternplated conduct will actually be carrie(l out by the organization. Where necessary to guider conduct in connection with the rule, the lawyer may makr inqu(r-y within the organization as indicated in rule •I--1.n(l)l. Dispute concerning lawyer's conduct Wlwre a lural claim or disciplinary charge alleges conn- plicity of the lawyer in a client's conduct or other nniscon- duct of the lawyer involving; representation of the client, the• lawyer may respond to the extent the lawyer reason- ably believes necessary to establish a defense. The same is trot, with respect to a clairn involving the conduct or representation of a former client. The lawyer's right to respond arises when an assertion of such complicity has been nude. Paragraph (c) does not require the lawyer to await tho rornniencement, of all action or proceeding that charpms moil complicity, so that the defense may be estaab- lished by responding directly to a third party who has made such an assertion. The right to defend, of course, applies where a proceeding has been commenced. Where practicable and not prejudicial to the lawyer's ability to establish the defense, the lawyer should advise the client of the third party's assertion and request that the client respond appropriately. In any event, disclosure should be no greater than the lawyer reasonably believes is neces- sary to vindicate innocence, the disclosure should be made in a manner which limits access to the information to the tribunal or other persons having a need to know it, and appropriate protective, orders or other arrangements should be sought by the lawyer to the fullest extent practicable. If the lawyer is charged with wrongdoing in which the client's conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge. Such a charge can arise in a civil, criminal or professional disciplinary proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person; for example; a person claiming to have been defrauded by the lawyer and client acting together. A lawyer entitled to a fee is permitted by paragraph (c) to prove the services rendered in an action to collect it. This aspect of the rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary. As stated above, the lawyer must make every effort practicable to avoid unnecessary disclosure of infor- mation relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of disclosure. Msclosures ptherwise required or authorized The attorney -client privilege is differently defined in various jurisdictions. If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, rule 4--1.13(a) requites the lawyer to invoke the privilege when it is applicable. The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give infor- mation about the client. The Rules of Professional Conduct in various circum- stances permit or require a lawyer to disclose information relating to the representation. See rules 4-2.2, 4-2,3, 4-3,3, and 4-4.1. In addition to these provisions, a lawyer may be obligated or permitted by other provisions of law to give information about a client. Whether another provi- sion of law supersedes rule 4-1,6 is a matter of interpreta- tion beyond the scope of these rules, but a presumption sholll(I exist against such a supersession. Former client The duty of confidentiality continues after the client• lawyer relationship has terminated. 678 RULE 4-1.7 CONFLICT OF INTEREST; GENERAL RULE (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to tine interests of another client, unless: L I H1'1 E° OF PROFESSIONAL CONDUCT Rule 4-1.7 :- rF'a:onabiv believes the represen- ::'i !d cr>tdv affect the lawyer's respon- t 11.::1 :tionsnip with th,, other client; ( ..... r!lU`after consultation. bf .l ;::. ! nut reprf,;ent a cli(rnt if the Illit'nt.:;C'tll('t;,,lullail judg- t:tati„t: of Ihat i-li(•r1t nlav be to r , t•I ;t third I,t n on ur• h%, the law- the represen- ,_.. ( n r nis afta r coristdtatil)n. I, i k` ilt r r nu.ltinu of multiple clients in a t .:,:', u1111t1r[aken, the consltltatiorr :,hall ,f the inil)Lc rr,on:; of the com- r'..,',r, r, i tl ad\[tuta„t« and risks d I .,.., d to an„t I I'r 1-ox er as parent, I :l,utt e 5i1:r11 nut rl. !uesenC a client a:un Il[rectt\• a&,urse to a pt.,rsor) who a 1 . t r :.. renrest ntt:.i by till: other law- -,- t 11t i,v tilt: client after consulta- . (•nmment. L r);::d ulrnw!ii 1,hI, law'ver's relation - An imi.,, rmts,;t,lc 'nnflict of interest ulay w.:.1 i • +'•I iti w;(icrtak(:n, in which event he declined. If such a conflict t'!. ik ill has iwun ind,�rta1:en, the law- -AP ,IL 111:1 tt.c rim, 1)1",rtie) l t at ion. See ru r a„r•• :t::uun' ; rslit-nt ir, involved and thlee anFes after represen- ,.,'p,t. , .....I •tll 1:1'A1 'r rt1:1; r,lr,!inut' tl) rCht•('St'llt any Y., crr,i:lled 1,, 1;1l" ; 1.J. .•et• also rule t, t:l. r .r , liclit ia\ccer ref;,tiu1 sill{) exi:;ts r t,a.... •!ahli5hlnl, i:• cmitinulliv, see c0111- ;r).t 1„v;dty to a client prohibits r.,, i. r ;,r.. ,•nt;ttt)rn llir,•cttl\ ad\urse to that client. itlIcri'SIs wit l:Un1 Oil: affeetud cl)etlt's r:1: i, l:(r ex})re ,:;r that. gener-a rii l:i:u iic tn::y Mt art (Ls adrocate against r n rrul in ,on1c other :natter. seen t i, l r l' 1 th1 thr ,Itfn r hand. ,innllt;uuvnly 1 . .. ... .. u:.r.,l:,t(•,1 nu1;t.,r; of ,•hrnis \\hose il •r•al!) :ill\, rse, :;t;l h as competing ecu- !l e- :lot t•cquire cut:;ent of the respec- l':,ra.:rairii tat al plies onk, when the repre- li, lit \vuuld he lni rtly adverse to the r ti'e of loyalty of the other lli('nt might. he cnn)pro- L-y,,',t:• tit I.. al:o iinl)air(d whorl a lawyer r•.... ,:ul:,,nd, nr ,:ur`' out all appropriate I' ,'., r!n•n! I:rr:ul:;t• ,If the lawyIli ':, ut, I t 'I'll, ronfhrt in eff(art forecloses alternatives that would otherwise be available to the client. Paragraph (b) addresses such situations. A possible conflict does not itself preclude the representa- tion. The critical questions are the likelihood that a con- flict will eventuate and, if it does, whether it will material- ly interfere with the lawyer's independent professional judgirlent in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Consideration should be {riven to whether the client wishes to accommodate the other interest involved. Consultation and consent A client, may consent to representation notwithstanding a conflict. However, a.; indicated in paragraph (a)(1) with respect to representation directly adverse to a client and paragraph (b)(1) with respect to material limitations on r(1l)reselu,ation of a client, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer in- volved cannot properly ask for such agreement or provide representation on the basis of the client's consent. When more than one client is involved, the question of conflict n)ust he resolved as to each client. Moreover, there may be circun(nt.urces where it is impossible to nt:lke the disclo- sure nccess;uy to obtain consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to eonseut Lo the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly a:;k the latter to conellt. Lawyer's interests The lawyer's own interests should not be permitted to have adverse effect on representation of a client. For example, a lawyer's need for income should not lead the lawyer to undertake matters that cannot be handled com- petently and at a reasonable fee. See rules 4--1.1 and 4-1.5. If tire probity of a lawyer's own conduct in a transaction is in 6erious question, it may be difficult or impossible for the lawyer to give a client rietached advice. A lawyer may not allow related business interests to affect. representation, for example, by referring clients to art enterprise in which the lawyer has an undisclosed interest. Conflicts in litigation Parag,niph (a) prohibits, representation of opposing par- ties in litigation- Simultaneous representation of parties whose interests in litigation may conflict, such as co•plain- tiffs ur co defcudauts, is governed by paragraphs (b) and (c). An impermissible conflict, may exist by reason of substantial discrepancy in the parties' testimony, incom- patibility in positions in relation to an opposing party or the fact that, dwee are substantially different pu:;sil)iliiies of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. 'file potential for conflict of interest in representing multiple defttndant.s in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co defen- dant. On the other hand, common representation of per- sons hawing similar inte.r"u; is proper if the risk of advet•scr effect, is Inlnimal and Lhe regltirernauts of para- graph (11) are met. Compare rule '1 2.2 involving intermed- iatiou b('twcen clients. Ordinarily, a lawyer may not act ..is advocate against a client tilt• lawvor represents ill some other !natter, even if 679 L] itule •l-1.7 RULES REGULATING THE FLORIDA I1AR the, other matter is wholly unrelated. However, there are cireurnstances in which a lawyer may act as advocate against a client. For example, a lawyer representing an enterprise. with diverse operationi may accept employment as an advocate against the enterprise in an unrelated matter if doing so will not adversely affect the lawyer's rt-latioiiship with the enterprise or conduct of the suit and if Loth clients consent upon consultation. By the same uken, lroverriiwt:a lawyer:; in some circumstances may r present g(Af rnnu:rit employecs in proceedings in which a govk,rnnient agency is the opposing party. The propriety of concurrent representation can depend on the nature of the litigation. For example, a suit charging fraud entails coindict to a degree not involved in a suit for a declaratory ;udgment concerning statutory interpretation. A lawyer may represent parties having antagonistic positions on a legal question that has arisen in different Cases, unless representation of either client would be ad- versely affected. 'Thus, it is ordinarily not improper to assert such positions in cases pending in different trial c.oi:rts, but it may be improper to do so in cases pending at the same time in an appellate court. interest of person payinM for a lawyer's service A lawyer may be paid from a source other than the client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of lovalt`- to the client. See rule 4--1.8(f). For exaniple, w'rien an insurer and its insured have conflicting interests in a matter arising from a liability insurance ai ; cement and the insurer is required to provide special counsel for the insured, the arrangement should assure the :special counsel's professional independence. So also, when a corporation and its directors or employees are involved in a controversy in which they have conflicting interests, the corporation may provide funds for separate legal representation of the directors of employees, if the clients consent after consultation and the arrangenlent ensures the lawyer's professional independence. Other conflict situations conflicts of interest in contexts other than litigation sometimes may be difficult to assess. Relevant factors in determininr whether there is potential for adverse effect include the duration and intimacy of the: lawyer's relation- ship with the client or clients involved, the functions being performed by the lawyer, the likelihood that actual conflict will arise and the likely prejudice to the client from the conflict if it does arise. 'flit, question is often one of prozicnity and degree. For example, a lawyer may not represent multiple par- ties to a negotiation whose interests are fundamentally antagonistic to each other, but cotnmorl representation is permissible where the clients are generally aligned in interest even though there is some difference of interest among then[. Conflict questions may also arise in estate planning; and est;rtt administration. A lawyer may be called upon to prepare wills for several family 1nt7)[hers, such as husband and wife an l depemliutg upon the rirrumtitaaue :, a enn- fliet of ester t may :u-the. In OSLtte adios[ tt [lion the ide:nity of the A lIwnt may be unclear [.outer the law of irn<. burn: Lctio t::. In Horida, the• persona} te.:pre;sentat.ive ili.mt rath r titan the eat ih ur the beuefiri;ities. The lawyer should make clear the relationship to the parties involved. A lawyer for a corporation or other organization who is also a member of its board of directors should determine whether the responsibilities of the two rules may conflict, The lawyer may be called on to advise the corporation in matters involving actions of the directors. Consideration should be liven to the frequency with which such situa- tions may arise, the potential intensity of the conflict, the effect of the lawyer's resignation from the board and the possibility of the corporation's obtaining legal advice from another lawyer in such situations. If there is material risk that the dual role will compromise the lawyer's indepen- dence of professional judgment, tile, lawyer should not serve as a director. Conflict charged by an opposing party Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the represen- tation. In litigation, a court may raise the question when there is reason to infer that the lawyer has neglected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple de- fendants. Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment. See scope. Family relationships between lawyers Rule 4-1.7(d) applies to related lawyers who are in different firms. Related lawyers in the same firm are also governed by rules 4•-1.9 and 4-1.10, The disqualification stated in rule 4-1.7(d) is personal and is not imputed to members of firms with whom the lawyers are. associated. RULE 4-1.8 CONFLICT OF INTEREST; PROHIBITED TRANSACTIONS (a) A lawyer shall not enter into a business trans- action with a client or knowingly acquire an owner- ship, possessory, security, or other pecuniary inter- est adverse to a client, except a lien granted by law to secure a lawyer's fee or expenses, unless: (1) The transaction and terms on which the law- yer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be a reasonably understood by the client; �33 (2) The client is given a reasonable opportunity to i seek the advice of independent counsel in tyre trans r. action; and (3) The client consents in writing thereto- (b) A lawyer shall not use information relating to t t representation of a client to the disadvantage of th "; client unless the client consents after consultatioa. except as permitted or required by rule 44A -V. (c) A lawyer shall not prepare an instrumOO' giving the lawyer or a person related to the lawYa' as parent, child, sibling„ or spouse any subst3n ^' 680 Jilli i E 11 r '.3 TAMARAC CHARTER eve-, upon demand by the city clerk, the council s .a!l hold a pul,lic.. llt ,aririg prior to suspension or ARTICLE TIU- CII'Y A'ITOi KEY Sec. 11,01. 1()ffic-e created; appointment; FoxycrF? and duties.] here shall be an c;iiioe of city attorney The council Shall appoint a city attorney and s',;ch assistant, city attorneys, as may be neces- sary, who shill serve at the pleasure of, and at f,uch compensation as shall he determined by, the c:..:%cil. They shall legally represent the mi-mici- its' a :: rlcit ti partrnents, ofricials arl(l em. and boards i,; all matters relating to offl- :; to t�iat end they shall perforrlt am s,., h l;rc;f,:s ionti.l dIutil..3 relating to legal repre- t rll,ly Le rccj1iir(7d by this Charter or t -' the council. The said attorneys shall be. duly .,d to f-r�tcti('e law in the State of Florida. 1 l.e terms aiA conditions of th, service of the city's l�.tornt s sl( 111 he in ttte hest intelests of the City of Te.nla"ac. IOr.i. No. 90 27, § 1, 7.11-90) 1= di:,�r's note 711,e provisions of Ord. No. 90-27 were (ap- proved "-y the el:-ctur LI.c un Sept. 4, 1990. ARTICLE X`1I. MJSCI"1,,LANE, 0118 PROVISIONS See. 12.01. 11ervonnel procedures. (a) All employees shall be appointed or pro - solely on the be:sis of their qualifications rand fitness. (b) The mannII ,-er skull ensure that all employees rc-Li ive a personnel manxial. Sec. 12.02. ILAirement or pension plan. The cou"ll shall, when it proposes ?,o adopt a retirernent 01 Vwr,sion plan for city employees, pub. h h In one 1.1) Ur snort dearly ntr•wspapers of ge,lertxl C IClilitilUi, jr, thc! t'ity a g;'lleral sulnl'nary of tilt'. ;;?ail tantl t4iw^c-thel. with rtj: Unulytais of costa and sure teuci;;�.::l�l y c:l!lse�luellr.� ;y; and a notice: .r; t1,G tilt u ul placc.t tvhe�-e= copies of the �..: . 3 16 plan are available for inspection by the public, and the time and place, not less than two (2) weeks after such publication, for a public hearing on the plan. The council shall establish and maintain a re- tirement plan for city employees. This is in rec- ognition of the need to provide for a retirement program for the benefit of city employees. The investments and administration of the plan shall conform with the city charter provisions r& garding investment of city funds, city ordinances, all requirements of federal and state laws and applicable ruler and regulations thereunder, and will preserve wid maintain the interest of t.lie par- ticipants. (lies. No. C1311-86.7, § 1, 1-17.86) Editor'a dote —The previsions of CBR-86.7 were approved at an election held Mar. 11, 1986, Codes reference --ketirernt:nt plan for city employees, 4 16.12G et seq. , See. 12.03. Removal from office. Any person holding an elective position with the city or an appointive noncompensated posi- tion or an appointive compensated position that does not fall under the hiring and firing powers of the council and the city manager shall be re- moved from office upon a finding by the courts, after due process by trial and appeal, that said person has intentionally or repeatedly violratcd some substantial provision of the Charter which provides safeguards for the rights of the people as opposed to minor procedural provisions. At said trial, the accused has the right to be informed of the charges against him, to employ an attorney at city expense, to subpoena witnesses wid to be heard and confronted by his accusers. Sec. 12.04, Conflict Of interest. The council, in conformity with existing law, shall, by ordinance, establiL�h regulations to pro- hibit conflict of inl:crest. State low raforenura- Coda of ethics, F.S. 5 112.311 et seq. Sec. 12.05. Prov'Ri(rrta of state law applicable to city plarill.ing and xaraixtg. The Florida Statutes relating to planning and zoning are considered applicable to the (:it.y, and the procedures therein, set forth shall be utilized by tiaid city. Except that the coun it shall oat rlct a 0 L AN/OF F It'F. '; J()Hj-as' NANS:ELMO7 N'1U1(1)(.)C1j, b(JKK(: & �"YEOR(;E p, p,tof'i AL ASiAC1ATION February 24, 1992 VIA TEl.£QOPIFR Mitchell Kraft, Esq. City Attorney City of Tamarac 7525 N.W. 8£3th Avenue Tamarac, FT, 33321 P. 10-1.1 St!r"rC 4 0 Q 781) EAST PVt-NAIkQ E1< k_t. A`-i POFt'Y LALIp-,¢VMJ, ; Fi OhWA MdLIL.ING A0QVALwS: PUST 0�1'.Ck 63i V.''': 2v FORT LAUDLRDALE, FI.AmnA:o-IJ3-00?0 TFtCC.01,.kRr('7'..h;•197 TFLEPkiwP F: 0( ,1 J", J 61d:) t'nb) DIAL 2000 ,: CA (7) GO Re: Diane Glasser vs. City of Tamarac, 11. Larry Bender, and Jane Carroll, as Supervisor of Elections Brrward Circuit Court Case No. 92-0:3143 (:14) Our 1,'ile 92-052 EBJ Dear Mr. Kraft: As we d iscusc�ed in our telephone confereric:e of February 21, 1992, it i-s my opinion that one attorney cannot defend the City Of 'Tamarac and Larry Bender in the suit: filed by Diann I believe there is a clear conflict of interest between the positions of nefendants, Be.n(lor and Llic City of Tamarac;. I have been r('taincd to defend the City of. Tamarac anQ my fiduciary obligation is to the City itself. If I were to defend r``r. Binder, ac; well as the City, I would also owe tl•Ie. s amo duty t o t",r. gender as I would to this City of Tamar..ac. A QOnflic, waul'l occur if 1,14r. Bendox., dirocted that 1 take a position which I brlievc wc;al d not be jr, t:hn host int.ore st of the City of `'Llmarav- f n :Icld it ion, 1 report to the city Council of the City of Tamarac and not to just or'c ccluncil me•.mber. If Mr. Bender were 'my client, T w�1�1d have to fo,11c:'w his instructions which nay conflict with po:irion of thti City. of 'Tamarac. It .aT-1 �attLar-taey represent od both Defondanti;, t:heru Would also bow a J>r k�Jr�m kith confidentiality. Mr. Bender is ent:itlod to an Ll 11 ['I Fth -uIt r Y 21, 1992[ iJf _2_ ati3ttwliies�•-•CI 1�.'r1t . tr]C] P lvile e with rc�pr.c�ser,t.cd his ocaunr,o? . If Mr. Bendel" We're Tanarae, t1j.,e ti�auldrben3at.torney ale;s� rogresCrlting the t:it:y of cliGcic;r r conflict: since that attorney Would al4,r. , atratQUY arsd thought:;; to the Ts1i ��C;�1d certairIly cause a F,r.ok,lem and could }•e�. City it=;nlf. f tto* nes/- c:l.lcpt privilce ,, �ultr in a breach �_ between Mr. Bender and his attorney. F'ar the QbOVe-descrik)ect yeas �- th�` CitY of Tamarac one, one attorney cannot defend c. �?nr1 Mt Bender. For the same reasons, one attannFy c:annnt rc�pr'(-'S ant the City aril Mr. aci,�itior;, Me2:;,3rs. 13endet� ar�d Ahramawitz are iMvc. Abramowitz. rn c n n i nc3 i vir7.tl.al bdsi,s and hive not been s in this ; actior, C'5 aCitiet; wit", the City Of 'Tamarac. tied in t.,hcir Official I t is mY tsnderrtanding that Alan Rug rind the City ac lectel inc3E ��-� i ..n<lent: cUutisel for the [pity of 'I'am,�rac and Mr. Ci3c��,der bLsed u�:cn thca apparent conflict. If there were reasons �,t�kic�r Bonder What I have (JO Cribed ahove�, you will have to d:�;; eas -ti ' R12f dirE: r. c:t1y• u t..�i,, t�;iti'� Mr. Yours Very truly, � 1 l�(s( .Ct.C.. ,�a.•7c � � son For, the Fiah }�rs��,> '''�i t.wxn '"ttlunor:ii,3t'1tKE '. l.. PHILIP M. RUBIN 5150 W. COPANS ROAD SUITE 1145 MARGATE, FLORIDA 33063 February 24, 1992 F I R E W 0 R K S MR. NORMAN ABRAMOWITZ 7525 N.W. 88TH. Avenue Tamarac, F1. 33321-2401 Mr. Mayor, I am writing to you in regard to the sale of safe fireworks in the City of Tamarac, as Mr. Moffatt and I discussed with you in our last meeting. The saying I have which you seemed very interested in being "EVERYTHING SPINS,SPARKLES,AND SPRAYS","NOTHING BOOMS,BANGS, OR FLIES" just explains my dedication to the Safety issue involved. By having sparkler items readily available to your local residents for their family picnics, and get togethers help to curb the "black market" sale of dangerous illegal fireworks in our community. I will have a non-profit organization running any and all operations in your city. non-profit or anization names where they Unlike other companies using non-p g have paid non-profit organizations-_asmall fee to use their name,we have a non-profit organization of your choice if available, physically operating in your area as a fund raiser for their organization which I discussed with you. Any recommendations of your choice for organizations interested celebra5 in this project would be appreciated for future contacts of safety pp tions. Please find enclosed letter to meyfromthe Florida see preventing dated June 8, 1990 , thanking me for m helpin Tallahassee preventing SB 2850 from passing. Sincerely, 1 k/ PHILIP M. RUBIN p.5. I am presently working with the cities of Pembroke Pines, Ft. Lauderdale, Lauderhill,pompano, and Unincorporated Broward County. 13640 S.E. 31st Court • Sunnmerfield, FL 32691 9 904-347-2004 sIdent 8. Smith imilman, Jacksonville it Vice President ;. Mellon nmissioner, Panama City •Ond VICe President lye Gibbs Martin rmissioner, Plant City June 8, 1990 Philip Rubin, vice P and H Fireworks, 2880 NE 7th Avenue Pompano Beach, FL Dear Philip: a� v President Incr. x 33064 Florlda Loague of Chios, ,nc. 201 West Pa* Avc nue Post Office Sox 1757 Tallahassee, FL 32302.1757 Telephone (904) 222-c 684 Suncom 278-1031 I would like to take this opportunity to thank you on behalf of the League and the Fire Chiefs Association for your efforts in successfully preventing SB 2850, dealing with distributors and exporters of fireworks, from passing i.-i the last hours of the session. Your diligence in making sure that as many legislators as possible were aware of the dangerous implication•.i of, the bill was vital to stopping it. We look forward to workinc with you on a good bill next year which is supported by all par`..' -es - Please let us knout if ,ae may be of assistance in the future. Sincerely, Carol Marchner Florida League of Cit. y'a Florida Fire Chiefs *.r.ociation Art arpe: Barry D. Sohnit»r, Commissloner, Metro Dada County a Gerald F. Thcmpaon. Gamil',Ssrane/, Broward County. aorbaro Shean Todd, Commissloner� Plnetlas County a Conprraalenil Dislrlcu: Ruben F. Barnard, Commissioner, Panama r,.y a Dorothy Inman, Mayor, Tallanassoe a Glenn Edwards ComrNssloner, Atlantic Boach a George E. Musson, Mayor, Now Smyrna Beach a John H. Lam Mayyor, Apopks a William Copeland, Councilmsn. Arehw, a Log buncen, Coundt enslrman, Tampa, a Holland G. Mangum. Mayoc Saminale a William C. M-t:iwether Mayor Pro Tom. Plant City a Wllllam A. Evers, Mayor, Bradonton a Lorrryy L. Schultz, Councilman, Rockledpe a Clarence Anthony. Mayor, South Bay a .r.eorao Smith, Councilman, Arcadia a 0,111. "Son" Geiprr, Msyort Corsi Springs o Tracy Stafford, Mayor, Willon Marm, : a John Y. Berilno, Cornmisslonw, Dark a Shelly Oassner, COunCllponen, North Mtam1 a Dr, Louis Mean, Vice Mayor, Bay Harbor Islands a Roy S. shiver, f: �r micsioner. Florida City a 10 Larpear Clrlex: E. Denton Lee, Councllperson, Jacksomft s J. L. Mummer, Jr.r Vice Mayor, Miaml a' Sandy W. Freedman, Moyai, amps a Robed Ulrich. Mayor. St. Potorssur0 a Alexander Paneias, Councilman, Hlalosh a Jim Heuplor Commissioner, Fort Lauderdale F Nap Ford, Comm st io•ier, Prlando a lean Glut anti, Maya, Hollywood is, Sidney WelabuM, Vice Maya, Miami Bosch a RI iss J; Garyay, Mayor, Cloarw*ter a NO PrN►derirs; dlo.i: a E. Hood, Gommissloner, Orlando a poulaL. Modllremz. Mayor. H�,a� a FCCA/A: Howarr O. Tlpmon, - '1 Manopar, Daytona Reach a TN shassce Orrin: Ryl a uxttl C. Sittig, Fxomlya Dir"or ♦ Je .