County Attorney's Response to the Clerk's Non-Payment of a BCC Approved Expenditure.

This item should have been paid three months ago....Why wasn't it?

I wrote extensively last week about what I felt was an unnecessary, unprofessional withholding of payment by the clerk's office of a duly approved and voted-upon item by the BCC.  The County Attorney has now sent the below response to the Clerk and her attorney to address this failure to make the payment.  Hopefully, payment will be made without ANY further delay, as it should have all along....From the email:

"First, let me express how extremely disappointed I am that you did not extend the courtesy at the earliest opportunity to advise of your concerns with this expenditure relating to Mr. Selover’s attorney’s fees and administrative fine.  As you know, the Board voted to authorize this expenditure at its October 6, 2022 meeting. Since then, more than three months have passed, and until now, you have not contacted me regarding this matter.

 Pursuant to Fla. Stat. §125.17, the Clerk shall make payments as directed by the Board of County Commissioners.  The Board is the elected legislative body that determines what expenses serve a public purpose and, unless illegal, those payments shall be timely made.  Under home rule authority, it is not necessary to demonstrate specific statutory authorization to make payment; instead, upon legislative authorization, payment shall be made unless illegal.  While you have provided statutory authority for payment of public officer and employee attorney’s fees, that authority is clearly not preemptive or exhaustive as illustrated by the common law theories regarding those expenses.

 There is no authority of which I am aware finding the payment of attorney’s fees or a fine illegal or inappropriate.  To the contrary, there is a strong public policy in favor of financially supporting public sector employees who become engaged in legal jeopardy arising out of their public sector employment.  To not defend such employees would discourage public employment as such employees are often asked to perform duties that are subject to legal challenges for various reasons.

 Mr. Selover’s attorney’s fees and the fine at issue were associated with an administrative action, rather than a criminal proceeding, that was directly related to his employment with the County.  The settlement agreement made no finding of grossly negligent conduct, bad faith, malicious purpose, or willful and wanton disregard of human safety.  Moreover, the settlement was entered into for the purpose of effecting an expeditious resolution rather than incurring the costs of a lengthy proceeding. 

To require a public employee or former employee to undergo an evidentiary hearing to avoid a fine instead of entering into a settlement agreement as a condition for authorizing payment is contrary to the public policy and would, undoubtedly, result in unnecessary expense.  It is also relevant to note, on occasion, the County must pay fines or penalties assessed against the County, whether arising out of the actions of its employees or otherwise.  Thus, assuming proper legislative action, it stands to reason that public funds may be used to pay fines assessed against a public employee when those fines arose out of his public employment.

 Additionally, although you have not communicated any concerns, it is my understanding the Clerk has not yet processed payment of Kate Kenney’s attorney’s fees, which the Board voted to authorize on  October 20, 2022.  I assume the issue of expenditures for fees or other expenses incurred by Public Safety employees was the subject of Ms. Childers discussion with the JLAC auditors after our meeting on Friday afternoon.  If so, I point out that only the elected legislative body can make a legislative determination as to what serves a public purpose.  That said, if the auditors provided specific advice on this issue then it should be shared between our agencies in the unified effort to perform and accomplish the public’s business. 

 Thus, I respectfully request the payment authorized by the Board on October 6 be processed as expeditiously as possible."

 

The Court Wants to Hear from the Clerk.......Within 20 Days

Attorneys for the Escambia Board of County Commissioners filed an amended cofmplaint with Circuit Court Judge William Stone on Monday of last week and yesterday afternoon the Judge responded.

This all stems from the Clerk's unilateral termination of a bona fide contract between the BCC and ICMA regarding a 401(a) retirement plan.

Apparently, with this order, Judge Stone  wants to now hear from the Clerk, and her side of this matter.

And it looks like he wants an answer relatively quickly as to why he should not grant the request for mandamus that the BCC's  attorneys have petitioned the court to order.

20 days and then hopefully we can get this nastiness behind us.

Read part 1 of the Judge's order here

Read part 2 of the Judge's order here

What Happened In Escambia County with Albritton v Gandy?

Commissioners that attempt to influence staffing decisions via unlawfully directing staff can face SIGNIFICANT punishments

Grady Albritton was a county commissioner in Escambia County when I was in High School.  I remember reading about him in the early 1980s as a youth growing up in Escambia County.

I remember he was a real character, really outspoken and strident.

Lots of folks don't remember how his career came to an end, though---but it had a lot to do with improperly utilizing his position as a County Commissioner do direct staff and make the staff his proxy in employment and employee discipline matters.

But employment decisions are outside the scope of a County Commissioner's duties and responsibilities.  This is an axiom of local governance that many citizens do not realize---but that every elected Board Member ought to know:  Commissioners legislate, but administrators operate and execute.

With Albritton, the lines became blurry and folks started resigning.

So upon re-reading that case and seeing as it seems eerily, uncannily similar to some things happening right now in the county--I felt like pulling it off the shelf, dusting it off, and publishing it. This might enlighten some folks about what our jobs are as commissioners, and what are jobs are not.

And this is a good thing.

Because "those that do not know their history are destined to repeat it"--as philosopher George Santayana aptly noted.

So I would encourage readers to take a look at the first District Court of Appeals case Albritton v Gandy.  The commissioner lost the case and was hit with hundreds of thousands of dollars in fines and penalties------a lot of money in today's dollars but a HUGE amount 30+ years ago.

Then I'd recommend interested persons read the Florida Division of Ethics file on the same matter.  This one is very interesting--- as it finds that a commissioner directing staff and intimidating staff to make employment decisions on behalf of said commissioner puts such a commissioner in violation of 112.313 (6) Florida Statutes.  From that order:

"The Respondent "used or attempted to use his official position" as a County Commissioner for Escambia County by using and attempting to use his influence over County employees to have Louise Gandy terminated from her employment at University Hospital and no longer used as a part-time relief EMT for the County.

4.  The Respondent was acting to secure a special benefit for himself through exacting retribution against Louis Gandy for her failure to support him during the 1983 runoff election for the Board of County Commissioners and for supporting his political opponent.  In a prior complaint, In re Clyde J. (Buddy) Wise, 6 FALR 6366 (1984), the Commission found that a county commissioner had violated Section 112.313(6), Florida Statutes, by using his influence over county employees to have adverse personnel action taken against the complainants, who were county EMT's who had supported the commissioner's opponent in an election.  In that order, the Commission stated:

  The use of one's office for retribution in this fashion constitutes a 'special benefit' for oneself, as the natural result of such an act is to increase a public official's power and influence through intimidating the political actions of employees who otherwise might support an opposing candidate.

Similarly, here, the Respondent's actions constituted and were intended to result in a "special benefit" for himself."