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MEMORANDUM FRoM THE (OFFICE OF COUNTY ATTORNEY VIA EMAIL ONLY March 15, 2019 To: Board of County Commissioners From: — ichard Wm. Wesch County Attorney Re: Resolution Renaming Estero Parkway Bridge, ‘The County Attorney's Office was requested to review the previous action by the Board regarding the adoption ofthe ceremonial Resolution renaming the Estero Parkway Bridge. It has been asserted that the adoption of the ceremonial Resolution was in Violation of the Lee County Administrative Code, the Sunshine Law (§ 286.011, Fla, Stat), and the Public's right to a reasonable opportunity to be heard on a matter decided by the Board (§ 286.0114, Fla. Stat). It has also been asserted that the Board's adoption ofthe ‘ceremonial Resolution was, as a result, null and void. Each matter will be taken in turn First, the adoption of the Ceremonial Resolution was not a violation of the Florida ‘Sunshine Law (§ 286.011, Fla. Stat). The Sunshine Law requires: 1. Board meetings are open to the public; 2. Reasonable notice of the meeting is given; and, 3. Minutes of the meetings must be taken and promptly recorded. ‘The Sunshine Law does not mandate that the County provide notice of each item to be discussed via a published agenda. Instead, the publication of the agenda is sufficient. Furthermore, if the Board meeting itseif is properly noticed, there is no Fequirement in the Sunshine Law that the Board give notice of potential deviations from 4 previously announced agenda. The December 4, 2018 BoCC meeting was properly noticed in accordance with Florida law. See Law & Info. Services, Inc. v. City of Riviera Beach, 670 So. 24 1014, 1016 (Fla, 4th DCA 1096)(citing Hough v. Stombridyo, 278 So. 2d 288 (Fla. 3rd DCA 1973); and Yarbrough v. Young, 462 So. 24 515 (Fla. 1st DCA 1985)(holding that a meeting notice was mandatory but an agenda was not)). ‘The motion authorizing the ceremonial Resolution renaming the Estero Parkway Bridge was approved on December 4, 2018. The December 4 Board meeting and Board agenda was publicly advertised. The published agenda includes a section tiled "Recap." The Recap is posted 24 hours prior to the meeting and County Staff updates the website as new items are added. Board of County Commissioners Maren 15,2019 Poge 2 RE: Resolution Renaming Estero Parkway Bridge On December 3, 2018, Commissioner Pendergrass’ Assistant sent an email lv County Staff advising of the addtional Commissioner Item for discussion of the Estero, Parkway Bridge. While publication of the Commissioner item is not required, reasonable Notice of the Board's meeting was provided along with a published Agenda including the Recap section. The Recap item was updated by Staff the day before and published on the County's website, Minutes were taken at the meeting. After the motion was seconded, the Chair afforded members of the public the opportunity to speak on the ‘motion. The Board's action was consistent with the Sunshine Law and applicable case law regarding notice of agenda items. The Board's action is not null and void. ‘Secondly, the Board's adoption of the ceremonial Resolution did not violate § 286.0114, Fla. Stat. Section 286.0114(2), Fla. Stat, provides “members of the public shall be given a reasonable opportunity {0 be heard on a proposition before a board or ‘commission....” The requirement to provide an opportunity to be heard is subject to the Board's rules and policies. More importantly, the requirement to provide an opportunity to be heard does not apply to “an offcial act involving no more than a ministerial act, including, but not limited to, approval of minutes and ceremonial proclamations." ‘Administrative Code 1-3, Rule 1.17 provides requirements similar to those required under § 286.0114, Fla. Stat ‘The Board's adoption of a ceremonial Resolution renaming the Estero Parkway Bridge was a ceremonial act and nothing more, As a ceremonial proclamation, public Participation was not required pursuant to § 286.0114, Fla, Stat or AC'-3, Rule 1.17 Notwithstanding, the Chair afforded members of the public with an opportunity to provide comment on the Board’s action prior to voting on the Motion. Furthermore, ‘even if members of the public were not provided an opportunity to be heard and the item was not a ceremonial proclamation, § 286,0114(8) specifically states that ‘an action taken ‘by a board or commission which is found to be in violation of this [§ 286.0114(2) is not void as @ result ofthat violation.” The Board's action was consistent with § 286.0114, Fla SiaL, and ACI-3, Rule 1.17, The Board's action isnot null and void. Finally thas been asserted that the Board's actions violated two provisions of the Lee County Administrative Code 1-3 (‘AC1-3"), specifically §§ 1.07(J) and (J) relating to Commissioner Items. The Board's adoption of the ceremonial Resolution renaming the Estero Parkway Bridge did not violate the Administrative Code and is consistent with 1 On November ©, 2012 he previous name ofthe Este Parcay Braye was aso designeted via ceremonial ection, Board of County Commissioners Maren 15, 2018 Page RE: Resoluton Renaming Estero Parkway Bridge the Board's past practices concerning Commissioner Items. To fully understand the issue. a brief history on suihsection (J) is necessary. ‘On August 17, 2010, amendments to AC1-3 were presented to the Board. The Proposed amendments included the addition of section 1.07(J). After discussing the proposed revisions with the County Commissioners prior to the August 17, 2010 Board ‘meeting, County Attomey Owen recommended further revisions to the draft Amendments via the Board's Recap sheet. During discussions with the Board, the County Attomey ‘entified that the proposed Recap revisions reflected recommendations received by the County Attorney during Board briefings. As a result of those discussions and upon ‘adoption (Resolution No, 10-08-33), AC1-3, section 1.047(J), was incorporated into the. ‘Administrative Code to read: Rule 1.07 __Authonty of Commissioners May, at @ regular meeting, request to discuss @ “Commissioner Item” seeking ‘majority Commission approval for consideration of the matter ata later meeting as a regular agenda item. A “Commissioner item” may include any prospective matter Of public business. A “Commissioner item” may not include: ) addressing prior affirmative votes of the Commissioner, i) matters involving contracts upon which reliance is had, funds have been expended and the position of Parties have changed, or performance been done that cannot be practically undone, i) is financially imprudent, or iv) requires approval of the Board at the same meeting when the Commissioner item is raised for an expenditure of funds. When practicable, any written information relating to @ matter being brought forward by a ‘Commissioner as @ Commissioner item should be provided fo all of the other Commission Members, the County Manager and the County Attomey as soon as possible prior o the Board meeting when the Commissioner Item will be brought up to the Board at a Regulation Meeting. During the August 17, 2010 Board discussion on subsection J, the County Attorney ‘advised the Board that the proposed revision to the final sentence was "loosened up' to provide flexibility ? In 2013, the State adopted public participation requirements under § 286.0114 Fla, Stat. (discussed above). In order to prepare for implementation of § 286.0114, Fla * Porto revion trough the Recap, the last sentence of he dra subst J provided ‘Commissioner ms shout! ‘9 submited to the Chaiman o later tan tho ose business on he Fl pir fo he Tuesday mai whe Pe tom so bo dacvesod