Submitted by Suanne Thamm
Reporter-News Analyst

(Third in a series of articles on local government)

In Civics 101, you read that Fernandina Beach city government is basically divided into two functions:  setting policy and running the government. The City Commission, whom I sometimes affectionately refer to as the Fab 5, serve as our elected local legislators who enact policy in the form of ordinances and resolutions setting the parameters for the types of services the government will implement through the appointed executive, or city manager.

Candidates for City Commission run from “groups,” not for “seats.” The term “group” is an artificial construct with no geographic boundaries. This term sometimes causes confusion to people who move here from areas where their city council members represent specific districts or wards of a city. In Fernandina Beach all commissioners are elected by the entire city electorate to serve as at-large representatives of all the people.  Citizens who have a policy issue cannot just talk with “their” commissioner; rather, they must deal with all the commissioners, either individually or at a public meeting.

By Charter all elections are non-partisan. Commissioners serve 3-year terms, despite at least two recent unsuccessful referendum attempts to change the term to 4 years to coincide with County and state elections. Because there are 5 commissioners, the 3-year term guarantees an election every year.  Group 1 (currently, Commissioner Arlene Filkoff) runs alone; while Groups 2 (Commissioner Charlie Corbett) and 3 (Commissioner Sarah Pelican) run in tandem, as do Groups 4 (Commissioner Jeffrey Bunch) and 5 (Commissioner Tim Poynter). This November’s election will contest Groups 4 and 5, where both incumbents are eligible for re-election.

The Mayor is elected annually from among the sitting commissioners. The mayor presides during city commission meetings, serves as official head of the city for legal purposes (signing ordinances, declaring martial law or state of emergency) and ceremonial purposes.  But the Mayor has no “administrative or judicial functions of a mayor under the general laws of the state.”

Some years ago, the idea of a straw ballot was introduced to allow the electorate to express its opinion on the best commissioner to carry out the role of mayor. At the annual reorganization meeting which follows each election, the newly installed city commission formalizes the straw ballot result by electing the mayor and a vice mayor.  There is no difference in salary between the mayor and the other commissioners. The last city commission voluntarily lowered commissioner  salaries to $800 per month for the budget year October 1, 2011-September 30, 2012.  October 1, 2012 will see those salaries revert to $1,000 per month, the official salary, absent other action. Although not provided for in the Charter, commissioners are afforded the opportunity to purchase health insurance via the City’s plan. The $12,000 annual salary for Fernandina Beach City Commissioners pales in comparison with the current salary for a Nassau County Commissioner ($42,564) or a Nassau County School Board Member ($28,877). The higher salaries are derived by state formulas and are based upon population.

The Commissioners hire three Charter Officers:  the City Manager, who serves as the city’s Chief Executive Officer and is responsible for running the city government apparatus according to policy established by the City Commission; the City Attorney who “act[s] as the legal advisor to and attorney and counselor for the municipality and all of its officers in matters relating to their official duties” (Charter language); and the City Clerk, who has 13 duties specifically enumerated relating to public records, elections, audit and support services to the City Commission. Each of these positions will be examined in more detail in future articles.

The City Commission, acting on behalf of the electorate, has legitimate power and authority to spend money – sometimes LOTS of money – on behalf of the city to meet present and future needs. The only time a voter referendum is required is if the city decides to borrow money to fund the project and opts to repay the debt with ad valorem taxes. According to City Attorney Tammi Bach, “When the City pledges its taxing power (ad valorem taxes) to pay for a capital project or capital projects, it is called a general obligation bond and requires a referendum approving the bond.  A general obligation bond also requires that a Court validate the borrowing. With revenue bonds, where [other] revenue sources (i.e., electric franchise fees) are used as the pledge for repayment, a referendum is not required nor is a Court validation lawsuit.” The City Charter specifically states in Section 10B:

“No referendum or freeholder election shall be necessary as a requirement or condition precedent to the issuance of such revenue bonds or certificates authorized under this section.”

The City Commission, despite contrary public sentiment expressed during the November election campaign, is acting within the bounds of the law and the City Charter if it chooses to move ahead with expensive projects without a voter referendum PROVIDED that it does not decide to borrow money via a general obligation bond.   Many projects have been funded over the years without a referendum, examples of which include the new police station on Lime Street and beach renourishment.

The role of the city commission sounds fairly straightforward and what you might expect from most local government councils.  But there is one part of the Charter that has been a problem for individual commissioners and the commission as a whole: Section 10, Powers generally; dealing with administrative service through Charter Officers required;  violations deemed misdemeanor, penalty.  And the most problematic parts of that section are located in subsection (a) and(c):

(a) The Mayor and Commissioners shall not, in any manner, dictate the appointment or removal of any city officers or employees whom the Charter Officer or any of his/her subordinates are empowered to appoint, evaluate and supervise.

(c) The Mayor and Commissioners shall deal with administrative service through the respective Charter Officer. The Mayor and Commissioners shall not directly interfere with or direct the conduct of any employee in the discharge of prescribed duties. However, with the express permission of the respective Charter Officer, the Mayor and Commissioners may communicate directly with an employee.

The intent of this section is to emphasize the separation of powers that exists between the Commission and the Charter Officers.  The Commission by law has a legislative role, while the City Manager serves as the chief executive.  The City Attorney and the City Clerk to a degree play lesser executive roles.

Over the years, some commissioners have disregarded these limitations, going directly to city staff and either issuing orders or countermanding orders given by the City Manager.  There are some who cite this section as the direct reason for the steady turnover in city managers. Some commissioners historically either do not understand their jobs or are not content with doing their jobs; they also want to run the city.

This situation became so divisive in the city that in 1998 then-mayor Aaron Bean brought in Dr. Lance DeHaven-Smith, a professor and associate director of the Florida Institute of Government at Florida State University to investigate the problem and report findings.  About his task, Smith wrote:

“The present analysis was undertaken at the request of the Mayor. Research was conducted to answer the following questions: (1) Does the rather frequent turnover in top administrative personnel stem from organizational or political factors, or is it due instead just to a streak of bad hiring decisions? (2) If the turnover reflects deeper problems, what are these problems? And (3) how, if at all should the situation be addressed?”

I am confident that if you were to read the entire report, available as a public record from the City of Fernandina Beach, most of you would find deHaven-Smith’s analysis and conclusions equally applicable today. He concluded:

“It will take hard work for Fernandina Beach to end its political turmoil and dysfunctional decision-making. Feelings between the city commissioners are bitter.  The office of the city manager has become terribly weakened by the frequent turnover it has experienced.  A recent change in the charter to have the city clerk report to the commission rather than to the manager has further weakened the manager’s office and predisposed the administrative system to internal conflict at the top. The commission has shown a tendency to shop for legal opinions it likes rather than to accept the advice of experts. City staff have become accustomed to bypassing the city manager and getting him overruled by the commission. Even the editors of the local newspaper are focusing on the city manager rather than helping their readers see the entire picture.”

DeHaven-Smith went on to make two very specific recommendations:

“First, the city commission should hold a televised meeting about the council-manager form of government. The emphasis should not be on the legal technicalities of the Fernandina Beach City Charter but instead on the general need to keep politics out of the administrative apparatus. If commissioners are frequently asking lawyers to tell them where politics ends and administration begins, then they have not come to understand and appreciate the intent of the council-manager form. The commissioners, more than anyone else, need to guard vigilantly the administrative independence of the manager.  They must commit whole heartedly to communicating with the manager, to rebuffing end runs by staff, and to taking their requests and concerns to the manager rather than to those lower in the organization. The commission meeting on the council-manager form of government should be led or facilitated by an expert on city politics and governance, and should be aimed at producing decisions about how to improve the community’s civic culture both inside and outside the city government. The meeting should be televised so that city residents can learn that they should not lobby city commissioners for special treatment.
Second, a community-wide, participatory process should be initiated to frame and resolve the real issues dividing the city, the issues that have been improperly displaced into the administrative system.  Until these issues are dealt with, the council-manager form of government is unlikely to operate as intended.  The participatory process should be more practical and action-oriented than what is referred to as “visioning,” although some of the techniques of visioning might be included.  Active citizens from all of the many segments of the city’s population should be brought into the discussion.  The participatory process should be directed by an expert from outside the area, and should be planned and overseen by a steering committee reflecting the community’s diversity.  The steering committee should be appointed by the city manager or some other person who is politically neutral rather than by the city commission, which will be inclined to appoint allies and political insiders.”

And finally, deHaven-Smith concluded that other actions should be considered, including revising the charter to:

•” Have the city clerk assigned to the office of the city manager rather than reporting to the   city commission
•  Prohibit city commissioners from ever returning to office after they have served two terms; and
•  Make it a misdemeanor for staff to go around the city manager and contact city    commissioners unless it is to report an illegal action by the manager.”

And so, you ask, whatever happened to the so-called Lance deHaven-Smith report, more formally entitled “Growth Management and Decision-Making Issues
in Fernandina Beach, Florida”?  Not much, other than being memorialized in the city’s digital archives.  You might even say that the report was dead on arrival.  Sitting Commissioner Ron Sapp roundly criticized Mayor Bean for making a unilateral decision to bring in deHaven-Smith without even discussing it with the city commission. Sapp questioned the reason for the study, the methodology, and the selection of people for interviews. None of the other commissioners felt strongly enough to support Bean or demand a more thorough review of the report and recommendations. So nothing happened.

In going back to Section 10 of the City Charter, you will find that there is cautionary language for the city commissioners in subsection (d):

Any violation of the provisions of this section by any member of the City Commission shall, upon first offense be grounds for sanction by the Commission, and any second or subsequent offense or violation within a commissioner’s term shall constitute a misdemeanor and, upon conviction thereof before any court of competent jurisdiction the violator shall be fined in an amount not exceeding two hundred dollars ($200.00), or be imprisoned for a period not exceeding six (6) months, or both, at the discretion of the court, and shall be subject to removal from office.

Sounds good; but for this to kick in, the city manager must accuse his bosses of violating the Charter. That would not seem like a good career move. So until the electorate at large and the city commissioners in particular understand their role both in the commission-manager form of government and under the City Charter, our city commissioners will keep interfering in the city manager’s job. And then, when they have completely hamstrung the city manager with their individual orders or pet peeves or whatever, the city manager will leave voluntarily or involuntarily in recognition that it is impossible to do his or her job under these circumstances.

So what does the city manager do anyway? Watch for the next installment, Civics 103.

June 1, 2012

4:00 p.m.

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