Submitted by Suanne Z. Thamm
Reporter – News Analyst
February 17, 2016 1:34 p.m.
Toward the end of the February 16, 2016 Regular Meeting of the Fernandina Beach City Commission (FBCC), commissioners devoted about 20 minutes to discussing concerns raised by Vice Mayor Robin Lentz about the City Attorney Tammi Bach’s performance. Lentz indicated that she had lost confidence in Bach, but other commissioners did not agree. While allowing for differences of opinion and expectations, other commissioners preferred to initiate a collegial effort to bring clarity to the role of the City Attorney, which would include a better understanding of her role under the City Charter and her existing contract as well as her relationship to other Charter Officers.
A workshop has been scheduled for February 24, 2016 from 1-3 p.m. at City Hall for this purpose. Because no action was taken on this item, there was no public input on the topic.
In opening the discussion, Vice Mayor Lentz said, “In light of the recent settlement of the Robin Marley case …, I have been evaluating and pondering our direction with our current city attorney. At this point I have lost confidence in her legal opinion, and I have lost confidence in her ability to obtain good legal counsel.” Lentz went on to cite increases in the city’s Employment Practices and Public Officials insurance rates from $22K in 2008 to $72K currently. Lentz drew an analogy to auto insurance, where she said that as she understood it, rates go up based upon claims filed. Lentz said, “I just want to open the floor up to see how the rest of you [commissioners] feel about this. I’ve definitely been struggling with this because I like her very much personally. But I’m at a point where I feel we need to move in a different direction.”
After a brief pause, Commissioner Len Kreger spoke. “I understand what you’re saying,” he said to Lentz. “I can’t speak to the insurance rates without doing some more research. But at this point, after 2.5 months as a commissioner, I don’t particularly have an issue.” With respect to the discussions about the Marley case, Kreger said, “I think the settlement was made on the basis of what was best for the city, not so much on what the legal issues were.” He reminded Lentz that she had positively rated the City Attorney’s performance in October 2015, and that her current position seemed a “fast turnaround.”
“I’m a little concerned that you totally lost confidence so quick,” he said to Lentz, “without giving the City Attorney an opportunity to [address your concerns]. One of my biggest concerns in the Marley case was the lack of documentation on the part of the city regarding her performance. I kind of see that same thing here [with respect to the City Attorney’s performance]. I think issues need to be documented, put in writing, with respect to what you want the City Attorney to do, and give her a fair chance to do it. Don’t set your mind in stone yet.” Kreger cited his 50+ years of management experience as the foundation for his advice.
“In the interest of the city, and with a new city manager, I think the continuity of [someone with historic and background knowledge] is important. After I’ve been here some time I will actually write performance evaluations for all the Charter Officers along with my expectations. At this point,” Kreger said to Lentz, “I don’t think you are giving [Tammi Bach] a chance.”
Mayor Johnny Miller next recognized Commissioner Tim Poynter.
“One of my issues with what’s happened over the last few years with the city and not documenting things—like with the Marley case—is that I looked at that settlement as in the best interest of the city,” Poynter said. “I think that both sides probably had some sharing of some issues; there’s always two sides to every story.”
Poynter said that he agreed with Kreger that two commissioners had just joined the City Commission. Poynter went on to say that he had served on the FBCC twice with Attorney Bach, adding that while he has not always been pleased, he has always discussed his issues with her, and that things improved.
“But the one thing that I will take some responsibility for,” he was quick to point out, “is that as a commissioner I am not 100 percent sure what the city attorney is tasked to do. I truly believe that from the time I was a commissioner the first time to now, that job has morphed into additional responsibilities in one area or another. I would like to see a workshop where everyone can get on the same page. I would ask the city attorney to write down where she feels she needs to be and the time she needs to spend and what she is actually doing. Where do we get the best bang for the buck of the city. I’d like to ask the city manager, who has experience working with city attorneys, to write down his expectations and what he would like to see for the best bang of city bucks for the community. Let the commissioners discuss all these points and then write down a succinct job description and expectations against which the city attorney will be evaluated.”
Poynter added, “One thing I have noticed is that when the city gets sued, the city’s insurance company never lets the city attorney represent the city. They say, ‘Find the expert in a particular field,’ and then we go out and use them. If it’s the role of our city [attorney] to look at state statutes, look at our ordinances, make sure that we are doing things correctly, that the boards are being staffed properly … if that is the job of the city attorney, I have no problems with that. I would like to have very clear, concise responsibilities moving forward. It will be helpful for this commission but even more important, helpful for the community to understand the role of the city attorney.”
Lentz asked to respond. She asked why she and former mayor Ed Boner were the only two commissioners to complete written evaluations of the Charter Officers. Lentz cited goals that she had set with the City Attorney to use as benchmarks in future evaluations. Lentz said that one option is to evaluate the City Attorney by wins and losses of suits filed against the city. She went on to explain that two of the most controversial recent suits—McGill Aviation and the impact fee suit—had been “dumped in [Bach’s] lap,” but that the Marley suit “was hers as a baby.”
“If you read those depositions [taken for the Marley case], as I did,” Lentz asserted, “37 times [Bach] said, ‘I don’t recall,’ ‘I vaguely recall,’ or ‘I don’t remember.’ It was very frustrating that she was this expert person and thought that we had a strong case to move forward or consult her law school person, who was our outside legal counsel. I was just disappointed that those were the answers.” She turned to her fellow commissioners and said, “I feel that if you had read those depositions, you would be as upset as I am.” Lentz continued to cite other goals that she believed the city attorney had not met. She said, “Yes, I have been working on my documentation. I didn’t even want to go to her tonight with questions, because I don’t feel confident in [her responses]. That’s where I am with things.”
Kreger agreed with Poynter about the need to sit down and talk things out.
City Attorney Tammi Bach asked to clarify certain remarks that had been made, and began with the legal insurance rate rise. She said that the city is part of an insurance group and that rates are set for all group members, not based upon the litigation of a particular city. She said that in 2011 the city’s insurance consultants advised that the two forms of legal insurance would be combined and that rates would rise 100 percent across the state. She told Lentz, “As I understand it, and in working in that field, it is not like auto insurance. Insurance trusts work differently.”
Bach said that the Marley case had not affected the current rate, because the city had locked into a 2-year insurance rate before the case had been filed. She added that the impact fee case settlement was not covered by insurance. The only cost that was covered by insurance was a negotiated fee of $40K for defense costs.
Bach said to Lentz, “I’m not sure what you meant by ‘your law school friend’ [in reference to the lead counsel in the Marley suit]. David Miller and I both went to law school at Stetson University, but I did not know him at Stetson University. So I don’t think that’s a fair comment.”
“Why did we use him?” Lentz asked.
Bach replied, “We used David Miller because our insurance company—Preferred Governmental Trust—has a list of attorneys that my office has said we would like to work with.” The insurance company chose to go with the firm of Bryant, Miller and Olive, headquartered in Tallahassee. However, its labor counsel—David Miller—was located in Miami. “That was not anything where I said, ‘I want David Miller on this case,’” Bach explained. “I had no choice in the case. I don’t get to choose which firm the insurance company hires from our pre-approved list of firms.”
Lentz pressed on. “But he was consulted before the lawsuit was even filed,” she said.
“That’s correct,” Bach said. “Every October I submit a list of legal firms that I would like to use if I have to make a phone call for legal advice. His rate–$175 per phone call—was the cheapest rate of any of the employment law firms we have used in the past. I was looking for the best rate. It had nothing to do with Mr. Miller and I going to law school, I assure you.”
Commissioner Roy Smith cited Lentz’ concerns over Bach’s deposition in the Marley case and her failure to recall details. “As I recall,” he said, “[City Manager] Joe Gerrity had a major loss of memory when he was deposed. It’s sort of hard to fight a case when your city manager who took the action doesn’t remember what he did. And other people had no memory—‘I don’t know,’ ‘I don’t know.’ I mean, your hands are tied when that happens. How could Joe not know? He’s the one who [took the action].”
“It’s not about [Gerrity],” Lentz countered. “[Bach] was asked specific questions about her involvement. Just read it over, word for word.”
Poynter addressed Lentz’ concerns about the lack of written performance evaluations from other commissioners. He explained that he does not like to do written evaluations that become part of the public record. “When I do an evaluation, sometimes they are very firm, not very nice, very to the point. When I put that down in writing, then the newspapers grab that and create a situation that becomes untenable for working with that person because they want to make more of it than there is. I’m just a very direct person. And I have no problem with you bringing this up—that’s great. You’re a commissioner and you have every right to bring this up. We all have attitudes on what we are talking about and what we’ve experienced. I have had some very candid conversations with the city attorney before, during and certainly right now. I don’t know because I certainly wasn’t involved in any of those discussions in the Marley case what was said and who said what to whom.
“What I do know now moving forward is that I believe we have a very good, professional city manager who is going to be working very hard to task people in his administration going forward. People will be held accountable on lots of different things. I want to afford the same opportunity to our city attorney—that we have a more pointed conversation on where things need to be that we can all agree on and that we then task her to do the job. I do believe, as I previously stated, that over time her job has morphed into more than it was intended to be. There is only so much time in the day to do certain things. And I want to get the best bang for the city’s buck from everybody. Let’s not continue to task her to do things that are not in her job description and that take her away from doing things that are. I don’t think [her] salary is out of line for the community. When the city had a part time city attorney, the rates went through the roof. This is just another distraction.”
He turned to Lentz and said, “But I applaud you for doing this because it needed to be said.”
Mayor Johnny Miller said that he also agreed with Poynter. He added that both he and Kreger had spent considerable time in military positions where regular evaluations were critical to advancement. “But,” he added, “[in the military] you have a very clear understanding of what you are supposed to do. If you are not doing something, you are given an opportunity to address that. There are a lot of plates spinning around on sticks in the city attorney’s office.” He cited misconceptions that may have arisen from past instances when the city attorney jumped into commission discussions to clarify matters. Such desire to help may have given some the impression that she “owned the issue” when she was just assisting.
While Miller acknowledged that he had a citizen request to speak, he said that because there was no vote proposed to take action, he would not entertain public input.
During remarks at the end of the meeting, Commissioner Poynter said that he just wanted to thank his peers “for being a great commission.” “I appreciate everybody’s insight,” he said, “for what they bring to the table, and it’s not always easy to do that. But I appreciate the way everybody responds to that. It is an honor to be serving on this commission.” Other commissioners agreed.
When reached for comment today, City Attorney Bach said, “I appreciate and share Commissioner Poynter’s words. I am proud to serve with this commission and look forward to working with all the commissioners, including Vice Mayor Lentz.”
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.
I posted this earlier in response to a similar article in NC Florida Independent. I think it also needs to be said here. I know what she does. In a past life I also had to deal with politics, money, and competing interests as a Navy attorney. Experience is hard earned, and objective advice is hard to come by when pressured from above.
Respectfully to Robin (whom I really appreciate for the really fresh air and expertise she has brought to the City Commission), an attorney’s professional responsibility is to his client – in this case The City of Fernandina Beach through the voice of it’s collective City Commission.
Part of this responsibility is assessing available facts and legal risks in the context of experience, and making hard judgments and recommendations – even at the cost of irritating some. Occasionally, in these days of big money, an increasingly politicized judiciary at each of several trial and appellate levels above, and the expense and prospects of eternal litigation over even minor, highly polarizing issues, hindsight might suggest do it differently. But it is just that, hindsight. And, these days we all seem to treat the realities of difficult problem solving as if it were magic that can to be conjured up by anyone, no matter what the qualification.
I appreciate Tammy Bach’s expert, wise, and independent, counsel over time – and hope that others do as well.
Thanks for the complete report on the discussion. The workshop should go a long way to clarifying roles and responsibilities that will benefit the City Attorney, the Commissioners and City Manager.
It was nice to hear Attorney Bach have answers to the questions asked by Commissioner Lentz. Ms Bach’s position is a difficult one and the workshop will hopefully help with breaking down her “job description”. My impression is that she does so much more that her original “list” may have outlined. No one is perfect, we all make mistakes, I hope this will take care of any inquiries as to Ms Bach’s work.
I think it is a great idea to clarify what Tammy’s Job responsibilities are. Robin brought up something that was on her mind and as a Commissioner she has every right, as well as having a responsibility to do so. The clarification of the job description of this office may actually take some work away from Tammy. I am not a lawyer so any opinion from me would be useless with regard to her legal responsibility.
I will say this much, a few years ago when I became involved with the Rail Crossings downtown, I made a call to the City to ask who was spearheading the action on the part of the City with respect to working with Florida First Coast Rail Road to get the needed repairs done. I was told it was Tammy. My first thought was: why in the world would our City Attorney have anything what so ever to do with the physical repair of the deteriorating rail crossings? It turned out that she was involved. Over the next year or so Tammy was an invaluable source of information to me. It was through her I was able to make many of the needed connections with Florida First Coast and then set up a meeting between them and the City which led to the rebuilding of both crossings. Was that type of extra effort on Tammy’s part in her job description? I really don’t think so. I do know that she was more than helpful with the sole purpose of doing all she could to solve a long running problem within the City. I personally feel she went out of her way to help in this effort.
I also feel that we are at a time of harmony within the City Government and that our focus should be on the goals set by our Commission with regard to what work is needed in our City.
Job descriptions as well as Goals for all City officers should be clarified where needed. Meetings should be set up with each individual to discuss their specific job description. Mutually agreed upon goals should be set. Each year those goals should be reviewed, revisited and adjusted as needed. If someone’s job performance does not meet the agreed upon goals, then further review and action can always be called for.