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 .