FBCC considers role, goals and performance of City Attorney

Submitted by Suanne Z. Thamm
Reporter – News Analyst
February 25, 2016 1:43 p.m.

The Fernandina Beach City Commission (FBCC) met in workshop session for an hour on February 24, 2016 to discuss the job of City Attorney as defined by City Charter and current contract as well as performance expectations for the year. Commissioner Tim Poynter had requested the workshop following Vice Mayor Robin Lentz’ expression of lack of confidence in Bach at the previous FBCC meeting.

City Attorney Tammi Bach walked commissioners through a slide presentation that featured an overview of the city attorney’s appointment and duties under the City Charter. She amplified with examples her duties to provide legal counsel and advice; litigation and representation; administration, operation and support for other Charter Officers. She went on to list her short term and long term goals:

And finally she provided 5 slides containing a detailed list of ongoing issues, projects and legal advice she has provided during the week of February 15-24, 2016. Following Bach’s 20-minute presentation, she invited questions, comments and commission expectations.

Poynter was the first commissioner to speak. He asked that Bach provide commissioners with weekly updates on ongoing issues every Friday. He concurred with goals that Bach had identified. He indicated that he was comfortable using those goals as performance measures.

He also requested that when Bach has dealings with commissioners about questions or city problems, that she copy all the commissioners with her responses. He said that such an approach would help keep commissioners informed. He said, “If I ask you to do five things, I have no idea whether Johnny or Robin have also asked you to do five things. This way, I will have a better idea of your workload and also understand why it might take you a while to respond to me. This would go a long way to removing the underlying tension when some commissioner might think that other commissioners’ concerns are getting more of your attention.”

Commissioner Len Kreger agreed with Poynter on the need to improve communication. He also expressed a desire to expand the City Attorney job description. He expressed some confusion over the City Attorney’s “chain of command.” He recognized that she is an FBCC employee but that she supports the City Manager and the City Clerk as well. City Manager Dale Martin explained that while he and the City Attorney were outside of each other’s chain of command, they work together on a regular basis to conduct city business and resolve problems.

Bach responded to Kreger, “All of you are my clients, individually and collectively. The City Manager is also my client, although I don’t work for him. Who else do I work for? All the departments and the employees of the departments. The city board members are also my clients. So that is for me to try to balance.” She went on to support Poynter’s suggestion that all commissioners be copied on her decisions and answers to commission questions.

Kreger asked City Manager Dale Martin how he would handle a conflict with the City Attorney. Martin said that he and the City Attorney would have to sit down and work out their differences. “I have no doubt it would be professional,” he said, adding that they would try to present a unified approach to handling a problem to the FBCC.

Bach said that she has now spent 9 years as City Attorney in Fernandina Beach. “I am here to support and advise you,” she said. “I don’t make decisions. In addition to being an attorney, I am a counselor at law. The City Manager does not have to take my advice. It’s his decision to make.”

At this point in the discussion, Vice Mayor Robin Lentz said that was exactly her problem. She asked, as example, if the City Manager wanted to terminate the Human Resources Director whether the City Attorney did not have a responsibility to notify the commissioners if the City Manager was taking action that could result in liability for the city. “Wouldn’t you pick up the phone and call us?” Lentz asked, “and say ‘Hey, I’ve advised the City Manager not to move forward and it’s my legal opinion that this would result in putting the city in jeopardy.’ How would you handle that situation?”

Bach replied that if that were the case, she would tell the City Manager that they needed to speak to city commissioners together. “If you’re implying that those were the facts when Mrs. Marley was terminated, that is not how it happened.” Bach said. “Do you want to go back and rehash what happened with Mrs. Marley? Is that what you want to do? Because I’m fine doing that to the extent that it does not violate attorney client privilege. … I can’t undo what we did. I am not perfect. I can tell you how we got to that decision and how Mr. [Joe] Gerrity [former city manager] made that decision. I did not make that decision. But I was part of the legal team. Did I think there was a possibility and did I advise that there was going to be a resulting lawsuit? Yes. But you do not run your city or your business based on who is going to sue you.”

Bach and Lentz engaged in a back-and-forth over specifics of Marley’s having been placed on administrative leave prior to being terminated and Marley’s communicating with the media that she had been fired before the action had been taken. Gerrity then made the decision, in Bach’s opinion, that the differences between himself and Marley were irreconcilable and decided to fire Marley.

“Just because somebody makes a decision to sue the city does not mean that all your Charter Officers have made horrible decisions. I think the settlement turned out to be the best solution for the city and its insurance company. I cannot reveal what we talked about at mediation, what the numbers were, but the city came out very well in that,” Bach said.

Lentz pressed on, asking why, when Marley was placed on administrative leave, there was no documentation to support that move. Bach reminded commissioners that administrative leave is not a disciplinary action. “Nobody gets a paper here when they are placed on administrative leave,” Bach replied. Bach said that Marley was placed on administrative leave for two weeks, but two days into that leave, Marley opted to go to the media telling them that she had been fired. Bach explained that Marley had been placed on administrative leave because the acting Fire Chief had raised concerns about Marley’s role in internal Fire Department problems.

Lentz continued to pursue specific events surrounding Marley’s firing and the lawsuit. Other commissioners appeared uncomfortable and refrained from entering the dialog between Lentz and Bach. Lentz maintained that Marley was made to look guilty without a complete investigation by Bach. When Bach indicated at one time that she didn’t remember, Lentz shot back, “I guess there was a lot of amnesia during [your] deposition.”

Finally Lentz concluded her questioning and comments and moved on to affirm her support for the goals identified and supported by the other commissioners. She asked how Bach’s performance evaluation would be conducted. Commissioners seemed content to do so once annually in a public forum while meeting privately with the attorney over any specific problems.

“’How am I going to know if she is doing her job?’” Poynter asked, in response to Lentz’ concern. “I’m going to refer to that list [of goals] and see what’s been done. There’s a lot of stuff on that list that the City Attorney put together. We can all look at that list and measure what’s been done from the reports we’ll get every Friday. I’m trying to move this thing forward in a positive direction. I have a better understanding of the various types of things Tammi does and the various roles. We are all going to receive her reports, so we are all going to be on the same page.”

Commissioner Kreger agreed with annual evaluation tied to rollover of the attorney’s contract at the annual reorganization meeting. Lentz asked if all commissioners would agree to use the common evaluation form. Both Mayor Johnny Miller and Commissioner Poynter expressed their discomfort in producing individual written evaluations for Charter Officers. Miller said that he believed that concerns should be handled privately. Poynter expressed concern that since evaluations are public records, specific words or statements might be taken out of context to create discord among commissioners or between commissioners and charter officers.

Miller said that public performance appraisals are very uncomfortable. Lentz agreed. “The problem with [private appraisals] though,” Lentz said, “is how do I know that someone else is having the same problem I am? If we don’t come together to discuss it, it’s not going to get any better. This part about the job sucks. It is awkward and awful. But at the end of the day I have to say, I don’t have a lot of control over certain things that happen in the city, but I have control over these Charter Officers, who have a lot of control. And I’m always trying to look out for the city’s best interests.”

“Wait, wait, wait,” Poynter interjected. “Let’s back up a little bit here. If I have a problem with [the City Attorney] and she doesn’t fix it, that’s a different case. If I have a particular problem, you don’t need to know about it. The other four commissioners might not have the same problem with her. So I am not going to sit here and make a bigger deal out of something because it’s my personal issue. I am one-fifth of this commission, and I have one-fifth of the ability to control these charter officers. So we all have to be mindful of that. We all don’t get everything we want when we want it. When I have a problem with a Charter Officer I want to go to that person and try to work it out civilly so it doesn’t become more than it is. That’s the way I do business.”

Kreger said he agreed that you should praise in public and counsel in private. He expressed confidence that any performance issues would have been resolved during the rating period. Because of sunshine laws, however, he said that he believes the citizens are entitled to hear an annual vote of confidence in Charter Officers.

Mayor Miller recognized Attorney Bach. “I do not believe for one second that there were not mistakes made in the handling of Robin Marley,” she said, “and I was part of that team that made mistakes. We are not perfect. Going back hindsight is always 20-20. There are several things that could have been done differently. Unfortunately, it became part of the election, the political process, the emotion of our citizens trying to drive that. But it turned out that [Marley] is returning to work, she is going to be retiring on her timetable. It did not cost the city an inordinate amount of money—‘millions of dollars,’ as people were hearing on the street. I think it turned out fine. But if the City Manager makes a decision under Section 10 of the City Charter, that is his right and it is not my duty to call commissioners to tell them that is wrong. That would be behaving like a tattletale. There is a better way to deal with that.”

Bach suggested that a better approach would be for the City Manager and the City Attorney to meet with commissioners individually to explain any problem that could lead to a lawsuit.

Bach went on to restate the mission statement of the city and recap her involvement and activities with professional and non-profit organizations locally and around the state. She added that she had recently purchased a house in the city because she is dedicated to this city and doing the best job she can. “I really appreciate the opportunity we’ve had here to discuss things, and I won’t disappoint you,” she said.

Commissioner Roy Smith, who had remained silent during the meeting, at this point said, “The main thing I want from the City Attorney and the City Manager is no surprises. I want to know about issues when they pop up so that I don’t hear about them from people on the street first. That’s embarrassing for all of us. Just let us know.”

Lentz then brought up the topic of opening the Alachua Street rail crossing, asking who was in charge of that issue. Poynter turned to City Manager Dale Martin and said, “The buck stops with you on that one.” Bach began recapping her involvement with the issue. She said that because of the stops and starts on this project with changes on the commission, the issue and its status became muddied. Lentz continued to press Bach on why action had not been taken in the past year on this matter.

Former Mayor Commissioner Ron Sapp, who was in the audience, raised a point of order at this time, stating that a discussion of Alachua Street was not in order because it had not been noticed on the meeting agenda. Mayor Miller agreed.

Lentz brought up public records law training, questioning why the City Clerk was responsible for this. Bach said that she did work with the City Clerk on providing this training, but that she was willing to take over that training, upon request of the FBCC.

Kreger summarized the meeting, expressing satisfaction that many outstanding issues with respect to the role of the City Attorney had been cleared up. Bach said that she would ask the individual commissioners to meet with her on a regular basis to receive updates, review her goals and ask any questions.

In closing the meeting Mayor Miller thanked Bach for her detailed presentation, adding that he was “awestruck” by everything that she does. He said, “I appreciate that any time one of us has to call you, you are always available and seem to have done a lot of research. Some of us were here and got to see how you handled the annexation case, which was very impressive, and the wetlands area case on 14^th Street. I’ve got the utmost confidence in your office, and I look forward to a positive future.”

Editor’s Note: Suanne Z. Thamm is a native of Chautauqua County, NY, who moved to Fernandina Beach from Alexandria,VA, in 1994. As a long time city resident and city watcher, she provides interesting insight into the many issues that impact our city. We are grateful for Suanne’s many contributions to the Fernandina Observer.