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02-09-76 FEBRUARY 9, 1976 A regular meeting of the City Council of the City of Delray Beach, Florida, was held in the Council Chambers at 7:30 P.M., Monday, February 9, 1976, with Mayor James H. Scheifley presiding, and City Manager J. Eldon Mariott, City Attorney Roger Saberson, and Council members Andrew M. Gent, Grace S. Krivos, David E. Randolph and Aaron I. Sanson, IV, present. 1. The opening prayer was delivered by Mrs. Rolene Gent. 2. The Pledge of Allegiance to the Flag of the United States of America was given. 3. The minutes of the regular meeting of January 26, 1976, were unanimously approved on motion by Mrs. Krivos and seconded by Mr. Gent. Mr. Sanson requested two corrections be made. On page 5, first para- graph, item (2) should have the following two words inserted: "and he feels not all of the issues being questioned are not of a criminal basis". On page 6, third paragraph, 6 lines from the bottom, Mr. Sanson requested the following words be inserted: "...be referred to the Civil Service Board and to the City Manager for their study and recommendation...". 4.a. Mr. Gent stated he would bring an item up under Item 8.a. on the agenda concerning Capital Improvements. 4.b. Mr. Gent reported he had not received any minutes from the City Manager's office for the last three workshops, January 5th, 19th and February 2nd. The City Manager replied they had not been prepared, but should be out this week. 4oC. Mrs. Krivos stated Bills for Approval did not appear on the agenda; she moved to add Bills for Approval to the agenda. Mr. Gent seconded the motion which passed unanimously. 4.d. Mrs. Krivos stated she felt the majority of the people present were concerned with Item 9.d. She requested that this item be brought up to the beginning of the agenda. Council expressed no objection. 4.e. Mrs. Krivo~ stated she had been asked to read a letter in response to Mr. Bud Merritt's letter - reference the good guys. "Is Mr. Merritt aware the City of Delray Beach is no longer a small city of approximately 10,000 residents as when he states that Major Billings took charge of the City when the great flu plague struck, and that he was the only one available to work. Also, is he aware that the City of Delray Beach is approximately three times as large in land area. Gone are the days of the brown boots, when the white ~police officer badgered and harrassed the southern black. We are a fairly larg~ city and we are a united city. both bla~k~ ~n~ ~hltes. It's about time the city wakes up to the fact that there are problems in the Police Department as well as in the City and it's about time these problems are met,~ face to face, and a fair and just solution arrived at. Thank God for Mrs. Krivos, Mr. Randolph and Mr. Gent for having brains, not just guts, to realize this and to stand up and be counted. The forefathers of this great nation of ours were also called radicals. These radicals, Mr. Mariott, made it possible for you to say what you have said without fear of reprisal which is all these officers ask. If a man is to be considered a radical because he is willing to stand for his human rights, then these officers are all radicals, which is what you call them. I personally hope someday you need these same radicals in a time of need, because I know, regardless of what you call them, they will respond to your plea for help as they do to all calls, regardless of race, creed, color or financial status. Mr. Merritt best wake up to the fact that over 70% of our officers of the City of Delray Beach have at least one year of college education toward their law enforcement· degree and many of the radicals are former police officers'?~ ' from other departments who not only save this city money,- but have offered their experience as well. I feel it i time the City of Delray quits being the largest trainihg ground of police officers in the State of Florida. Let us try to keep a few good men for a change instead of losing' them to other departments because of a few old timers. The fact that a police officer of today is no longer like his brothers of yesteryear; it requires much training, education and knowledge to be a police officer in today's society. It is no longer a requirement to be Irish or an ex-truck driver to be a professional police officer. There is an offer to Mr. Mariott to pull his head out of the ostrich position. Ride in a patrol car and try his old method.in a modern situation and see how long he would last. Here's hoping he tries." Signed: Preston Wright 40 year resident of Delray Beach 4.fo Mrs. Krivos asked if the City Attorney would advise Council on the Clemens' case. The City Attorney stated he would although he did not have all the information he needed. Mr. Sanson asked this be done at the same time the other item is discussed per Mrs. Krivos' re- quest. 4.g. Mr. Sanson asked that an item be discussed at a future work- shop concerning the obligation of the Board of Adjustment to notify surrounding neighbors of items to be discussed by them. Mr. Sanson stated he felt notification should be given to surrounding property holders so they would be aware of the hearings. 4.h. Mr. Sanson asked the City Attorney if it is possible for the Board of Adjustment to overrule a Community Appearance Board decision. The City Attorney replied it is possible for the Board of Adjustment to grant a variance as to any ordinance in the City except to the extent that a specific ordinance prohibits them from doing so. He stated they could overrule the Community Appearance Board. Mr. Sanson asked~this item be discussed at a workshop meeting. 4.i. Mr. Sanson questioned what was happening to the Streets and. Sidewalks Bond money. He requested that this be discussed by Council and plans made to utilize this money. The City Manager stated it was planned to open bids at the next regular meeting involving a portion of. that money and the balance of the money would be discussed at a workshop meeting within the next month. M~. Sanson referred to a letter from Mr. Bill Albaugh requesting de-annexat±~n from thc ~;~L¥. Mr. Al'baugh states he has solid legal grounds on which to take thi= ~%£on. ~h~ City'Attorney replied the City has responded to this matter twice and Mr. Albaug~ ~s De~. ~ld h9 does not have legal grounds on which to de-annex, and if he fee±s he does, then he should follow whatever remedy he ~nks-~a~ropriate. 4.k. Mayor Scheifley read a Proclamation proclaiming ~he day of ~ebruary ~5, 1976, as Susan B. A~thony Day in the City of Delray Beach. 4.1. Mayor Scheifley read a Proclamation proclaiming the day of Tuesday, Marc~ 2, 1976, as the first nonpartisan election for the City · of Delray Beack. Mr. Sanson asked for comment on the absentee ballots for~this election. The City Clerk stated anyone unable to be in the City to vote ~n March 2nd could come into the City Clerk's office to obtain an absentee ~allot. 4.m. Mayor Scheifley read a Proclamation proclaiming the day of February 20, 1976, as Barry Hill Day. Mayor Scheifley announced there would be a celebration on Friday, February 20, 1976, at 5:00 P.M. at Teen Town. Mayor Scheifley will write Coach Don Shula to ask him to attend this celebration along with any Dolphin members who can attend. Mrs. Hill accepted the Pro- clamation for her son. 5.a. Mrs. William Pfundston, 80 N.E. 4th Avenue, Delray Beach, spoke concerning a building being built south of her property. She stated she was not notified of the hearing by the Board of Adjustment concerning this building. She spoke with the Chairman of the Board of Adjustment who stated, according to Mrs. Pfundston, there was no violation. She stated the Building Inspector and the City Attorney were against the building, but the Board overruled them. Mayor Scheifley said the Board of Adjustment is set up in the Charter as the Court of Appeal in the City and they only rule on hardship cases. Council cannot over- cule their decisions, but could appoint a new Board of Adjustment. ~e suggested the situation described by Mrs. Pfundston be scheduled for ~ workshop. 5.b. Mr. Frank Ellis, 553 Jaeger Drive, Delray Beach, spoke con- cerning an article in the February 6th issue Of the Sun Sentinel. He stated the article said the Sewage Treatment Board had granted Russell & Axon $7,800,000 to proceed with the plant. Mayor Scheifley pointed out this subject does not apply to the City Council as a group, but rather concerns the South Central Regional Wastewater Treatment and Disposal Board. Mr. Ellis complained of the methods used in installation of sewerage connection. 5.c. Mr. Leon Weekes, 2012 N.W. 2nd Avenue, Delray Beach, made a statement concerning the Police Department. He stated as follows: "Council has authorized an investigation and evaluation~ of the Police Department, a move which I support. Unti~ these reports come back, I don't think anyone should be fired, anyone should be retired, or anyone should be rehired. When the reports do come back, it is incumbent upon this Council to take whatever action is indicated. To take action prior to that time is precipitous and defeats the purpose of, particularly, an unbiased inves- tigation of the various circumstances and occurrences which have brought the City of Delray Beach and its ~ Police Department to the sad state of affairs in which it finds itself tonight. Thank you." 5.d. Mr. Sam Smith, 925-D South Drive Terrace, High Point, spoke concerning the second and final reading of Ordinance No. 2-76. Mr. Smith spoke as President of the Board of Directors of Section 3 of High Point. He said he did not know at this time whether or not the streets of High Point conform to the new standards which would be proposed. Mayor Scheifley stated a request is going to be made from the Council to delete this item from the agenda. Other questions have been raised and the item will be considered~for postponement. 6.a. The City Manager stated Mr. Ken Ellingsworth resigned f~om the Delray Beach Housing Authority last Friday. The Housing Authority met that afternoon in regular session and accepted his resignation. The Chairman of the Authority requested Council to fill this vacancy as soon as possible. Mayor Scheifley stated he had approached Mr. Mike Considine who has experience in this field and Mr. Considine has indicated his willingness to serve. Mr. Sanson outlined Mr. Considine's background in this area. Mr. Randolph stated he had no. objection to Mr. Considine, but did have ~bjections to the method in which the matter is being presented. He said this matter should have been presented to Council prior to this meeting so Councilmembers could have someone for considera- tion. Mr. Sanson moved to appoint Mr. Michael Considine to the position of a member of the Housing Authority. The City Attorney reminded Mr. Sanson that under the Housing Authority Statute the Mayor makes the appointment with the confirmation of the Council. Mayor Scheifley informally polled Council members for their opinion. The City Attorney stated the Mayor would have to file a certificate of the appointment with the City Clerk. The City Clerk stated she would prepare the cer- tificate. Mayor Scheifley appointed Mr. Michael Considine to the Housing --3-- 2-9-76. ahority f6r~{he~un~xpire~ %er~-of Mr. Ken Ellingsworth, said term to' p~re July 14, 1978. Mr. Sanson moved that Council confirm the recom- ~ndation of the Mayor to appoint Mr. Michael Considine to fill the ~nexpired term of Mr. Ken Ellingsworth to the Delray Beach Housing ~uthority, seconded by Mrs. Krivos. The motion passed unanimously. (9.d.) Mayor Scheifley stated this item would be considered at this time at the request of Council. The City Attorney stated Council had also requested the Clemens' matter be discussed and he suggested this be done first. The City Attorney stated approximately 30 days ago Council was address by Mr. Jerry Oxner who represents George Clemens conveying to City Council a settlement offer which Mr. Clemens thought to be acceptable. The City Attorney recommended that Council not accept the offer; he has discussed this case with the attorney handling the case for the City. Motions have been filed in~'Federal Court to dismiss the City as a defendant in the case and at this time, it looks as though the City may. be dismissed as a defendant in the case altogether. The - deposition from Mr. Clemens has been set for February 18th. The City Attorney stated, viewing this case in terms of the probability of success on behalf of Mr. Clemens against the City and also the City's exposure to liability at this time, he advised against settling the case. Mr. Sanson asked why some papers were filed last week by Mr. Alley if Mr. Blue is handling the case. The City Attorney stated Mr. Blue is repre- senting the City and the papers should have been filed by Mr. Blue. The City Attorney stated he would check into the matter. Mr. Oxner, representing Mr. Clemens, stated he had copies of the motions and memorandums in support of the motions fiied by the Alley firm on behalf of the City and other defendants in this case. He offered to let the City copy the documents Mr. Oxner had granted Mr Blue an extension of time to file these documents, but said he had not g~anted the extension to the Alley firm. The City Attorney stated Mr. Blue had told him he had left the Alley firm, and Mr. Blue was retained by the City; he had no explanation as to why the motions were filed by John Alley. Mr. Sanson stated he felt actions of a permanent nature concern- lng the deciding of guilt or innocence of anyone should be deferred until facts are received in a conclusive, legal, binding manner which will come from the investigation. He said everyone should remember this country and the system of democracy include three basic principles: 1 - ~reedom; 2 - equality; and 3 - justice. Mr. Sanson stated justice means every man is entitled to be innocent until proven guilty; that applies to the men who have been fired as well as those who are now being accused of causing the problems. Mr. Sanson stated it makes no sense to him for Council to create a situation where possibly, although he did not believe it would be the case, the men, specifically Major Billings and Captain Kilgore, will be found to be totally innocent. But he felt they have the right to present their facts and evidence before Council or anyone judges them guilty. The City Attorney is using every expeditious means %o have the 'investigation completed. The investigation is to be Conducted by Council's decision with the utmost in impartiality and to be as thorough as possible. He said he felt the men asking for settlement of their case could wait for perhaps 60 days until the investigation is complete. At that time, Council should consider the facts and act accordingly. ~r.. Sanson said if the City Manager is not prepared at this time to change his decision or the Police Chief is not prepared to c~ange his decision in supporting the firing of these men, and they are proven wrong through the investigation, that they should therefore accept the responsibility of that decision and Council should take whatever action is appropriate towards them also. Mr. Sanson said at this point he is not prepared to offer settlement to Mr. Clemens, Mr. Zolnay, Mr. Papy or Mr. Nanna. Mr. Sanson moved that Council not act on any of these matters until such time as tke full facts of the..investigation are brought to Council and that the City Manager be requested to put a complete halt to any forms of suspensions or firings or demotions. Mayor Scheifley asked Mr. Sanson to separate hiJ motions. Mr. Sanson moved that Council not act on any settlement offers until such time as the investigation has been completed and facts~presented with Council acting accordingly. Mr. Sanson amended the motion to refer, specifically to Clemens' case with Council not acting on the settlement offer until such time as the results --4-- 2-9-76. of the invaS~iga~ion are back to~ Council. The motion died for lack of ~r~econd. Mr. Randolph stated he did not feel that an investigation of · he sort that Council is after is going to stand a chance of proving what needs to be proven in this City. The same people who have been ¢~sing the problem are going to still be there when the investigators arrive, and as a result of that investigation, he said he was sure they Were going to be there. He said he mentioned once before he does not believe the International Association of Chiefs of Police is the firm to conduct this investigation. He stated his reasons for this are: 1 - the Chief of Police has stated publicly, to the best of Mr. Randolph's knowledge, that he is a member of that organization; and 2 - that the Chief of Police knows many members of that organization. Mr. Randolph asked how fair an investigation could be expected under these circum- stances. He stated a lot of money would be spent on the investigation. He said if this is allowed to continue at this time, it will continue in the future. He cautioned Council to think b~fore they act because if ~ouncil allows a situation of this gravity to slip from them, it will ~lways remain the way it is. He stated he wanted to hear the results of what Council had asked the City Manager to do prior to voting on any item concerning this matter. Mr. Oxner reminded Council that the offer would expire concerning Mr. Clemens' case prior to another regular Council meeting. After that time, the dollar figure'will go up on the offer. The City Manager spoke on several items concerning the Police Department. He stated with regard to the Police evaluation and investi- gation, Council requested the City Attorney to obtain proposals for in- vestigation of the Police Department. At the same meeting, Council requested the City Manager to obtain proposals for an operational manage- ment evaluation of the Police Department. The City Attorney has talked with a number of individuals and firms with regard to the investigation. ,The City Manager said he had talked with a number of individuals and firms ~with regard to the evaluation. The evaluation proposals are due ~o'be received in his office within 30 days from the last regular Council meeting. He stated he expected to receive a proposal from the International Asso- ciation of Chiefs of Police along with others. At the last meeting, the City Manager stated he committed himself, at the request of Council, to consider the possible retirement of Major Billings and Captain Kilgore. The City Manager stated no deadline had been provided him to give response to Council with regard to former patrolman Richard Zolnay. Councilmembers stated they would like to hear the reports at this meeting. The~City Manager said he would reply to both matters. However, he first wanted to discuss a matter that has occurred recently, i.e., the posting of photographs of police personnel in the lobby and the reassignment of some employees in the detective division of the Police Department. He said he first became aware of this situation in the way of a complaint from Patrolman Richard Virgadamo and Detective Jack Moore with regard to the posting of photographs of police personnel in the lobby of the Police Station. The officers asked the City Manager to override the instructions of the Police Chief that the photographs be posted. The City Manager advised them to first go through the grievance procedures in the Police Department, if they were not satisfied, they could return to the City Manager's office to file a grievance under the City's personnel policy, Section 114. On February 6th, Detectives Charlie Williams and Bob Schiller came to the office of the City Manager complaining about the same matter, plus an added complaint that they had been reassigned from the Detective Division to the Patrol Division. They hand-delivered a letter from an attorney, Mr. J. Justin Findley, in which he said he had been retained by members of the Delray Beach Police Benevolent Association with regard to the photographs. The City Manager told them he would take their grievance under consideration and he wDuld contact them. The City Manager drafted a memorandum on Saturday and had a conference with the Chief of Police today. He re~d the memorandum as.~follows: "To Chief of Police - dated February 9, 1976. It is instructed that 1 - photographs of all active police personnel below the rank of Chief now posted in the lobby of the Police Station be removed; and 2 - that your February 6, 1976 memorandum dealing with the reassignment of certain personnel be rescinded, and that personnel already reassigned, if any, as a result of your February 6th memorandum be reassigned --5-- 2-9-76. ~ ~r.-~ ~ ~3~3~a~Written report thereon submitted to me Au ...... ~ ~o their former duties. The two above actions are to cT~'~lr~ ~by 5:00 P.M. today. ~- Duration - the duration of the above order is for a ~'~'~"~ ' ~J period of 30 days from this date. ~? PUrPose - this 30 day period will give time for an inves- .... tigation and consideration of the legal, financial and .... administrative aspect of these two matters and will allow ~' ~ ~' time for the processing of any employee grievances filed ....... in connection therewith. It is not the intent of this ' ~ ~memorandum to pass judgment on the merit of the two matters ~ · being dealt with. It is the intent of this memorandum to maintain the status quo that existed prior to the advent of these two items for a period of 30 days in order that they may be dealt with in an orderly, logical and legal fashion a~' provided by law and policy to the end that the rank and file police employees' interest, as well as the interest of the police administration, is adequately taken into consideration." The City Manager stated he received a written response later .in the afternoon from the Chief of Police as follows: "To J. Eldon Mariott, City Manager - dated February 9, 1976. In accordnace with your instructions from the memo dated February 9, 1976, the departmental picture has been removed from the wall and placed in my office with pictures facing the wall. Also the two young officers have been instructed to report to their respective shifts tomorrow, and the three detectives will be so advised." The City Manager stated nothing has come to his attentibn'~since the last discussion on Richard Zolnay to give him any reason at all to reinstate Richard Zolnay to the Police Department; in fact, several things to the contrary have come to his attention. He stated he felt if it was the right action to take then, then it can be no less right now. He said many employees in a probationary status have been terminated in 1974 and 1975 and to reinstate Mr..Zolnay could create a bad situation. In 1974, 32 probationary employees were terminated; in 1975, 27 were terminated. In the Police Department, total employee terminated~in 1974, including probationary and non-probationary, were only four. In 1975, five employees were terminated in the Police Department. Of the four terminated in 1974, the Clemens, Papy and Zolnay terminations are discussed, but the fourth person, Ruth Iseda, was terminated and is never discussed. He further stated he knew of no legal basis whatsoever to do anything further in the case of Richard Zolnay. He said there is a possibility that something could be uncovered in an investigation or evaluation that could change this matter. He said the Police Chief has told Council that he does not want Mr. Zolnay back as has Major Billings, Captain Kilgore and Lt. Brooks. He said there is no way a City Manager could know every employee and whether or not they should be kept as a city employee; the administrative personnel must be relied upon to make such determinations. The City Manager. stated Council, at the last regular meeting, requested him to ask for the immediate retirement of Major Billings and C~ptain Kilgore from the Police Department of the City. He stated he has met with Major Billings and Captain Kilgore. He ask them to retire and received a negative answer from both. Neither of the men are eligible for normal retirement; Major Billings is five years away from normal retirement, but is eligible for early retirement. Captain Kilgore is not eligible for retirement at all. He stated that by asking the men, he had discharged his obligation to Council. However, he felt he should ~go further in view of the situation, so he asked the Police Chief if he knew of any reasons for separation of either of these men or both of them from the Police Department. The Police Chief answered that he did not. The City Manager said he knew of no legal, lawful reason for the separa- tion of these men from the Department. He then decided to ask the City's Civil Service Board, which is composed of individuals elected' by City employees, and appointed by City Council, to consider initiating an 2-9-76. an iDvestigation of Major Billings and Captain Kilgore. House Bill 1041 sets up the Civil Service System and the City's Civil Service Code of Rules and Regulations allow for this type of investigation. He stated he could not order them to conduct such an investigation, but planned to ask them to do so under whatever procedure they might devise to make it as impartial and as thorough as possible. He also said he planned to ask them to seek legal counsel so the information they receive has the best chanca of being valid. He stated he wished to do everything possible to settle this problem and to use every legal and equitable means to provide answers to the matter. Mr. Gent stated there are five men on the Board and one of the men is Captain Kilgore. He asked how they could judge the matter. The City Manager stated he was aware of this; it would be understood that Captain Kilgore could not be a part of this action. The mechanics are set up in the Civil Service Act to take care of new members on the Board. Mr. Sanson stated he felt this was a good idea assuming it would nct interfere with any other action taken by Council. He suggested that the County Police Benevolent Association be allowed to select a person to take the place of Captain Kilgore in the investiga- ting committee of the Civil Service Board. The City Manager stated he would not agree to such a suggestion; he said the State law is very specific about the manner in which people take a seat on the Civil Service Board. He said he would not go beyond the law on appointing a member to serve on the Board. Mrs. Krivos moved that J. Eldon Mariott be fired as the City Manager of Delray Beach, Florida, seconded by Mr. Gent. Mr. Randolph asked the City Manager if there were any circumstances under which he would consider the reinstatement of Richard Zolnay to the Delray Beach Police Department after hearing the presentation several weeks ago. The City Manager replied he has attempted to state as clearly as he could the reason Mr. Zolnay was fired. He said he was aware that Mr. Zolnay and his attorney partially refuted a number of the charges against hi~, 'but not all of them. He said he has received additional information since that meeting that strengthens his belief that the right decision was made at that time, although he could not be sure. The City Manager stated he was sure of one thing - that the City Manager was in no position to deter- mine whether or not probationary employees should be dismissed. Such determination must rest with the department head. If things were done that were unlawful or illegal in this connection or in connection with anyone else that is uncovered by the investigation or evaluation, then that could change decisions. He said the four ranking police officers have told him they do not favor reinstatement of Mr. Zolnay. He stated it it would be a gross violation of semi-separation of legislative and administrative powers; there are many good and sound reasons why he should not reverse this decision at this time. Lt. Lorenzo Brooks of the Delray Beach Police Department stated the City Manager contacted him today and asked him if he would favor the reinstatement of Richard Zolnay. Lt. Brooks told him that if the charges were true that were brought before the Council, he would not favor reinstatement of Officer Zolnay or any other police officer who was guilty of such charges. Lt. Brooks told him if the charges were not true, then he or any other police officer fired during this time should not have been fired in the first place. He said he did not say he was in agreement with it, but would be in agree- ment with it if the charges were true. Mayor Scheifley asked Lt. Brooks if he felt a decision should be made tonight by those in authority con- cerning the Zolnay case or did he feel a decision should await the investigation to determine the true facts. Lt. Brooks said he had not been involved in this in the past and did not want to comment on it. He ' said he did not want to become involved in this matter; he simply worked for the City and wanted to continue to work for the City, if possible. The City Manager said what Lt. Brooks had r~lated was true, although the conversation they had was abbreviated. He said he had then asked Lt. Brooks for a yes or no answer to the question'~- would he favor rein- statement of Richard Zolnay. Lt. Brooks then did respond that he did not favor reinstatement of Mr. Zolnay, according to the City Manager. The City Manager called the Police Chief to determine Lt. Brooks' answer to his question. Police Chief Murray O. Cochran said he remembered distinctly the conversation; he said he already talked with Lt. Brooks concerning th~ matter. Chief Cochran had asked Lt. Brooks to talk with three other members of the department who had stated they did not want to get involved, but had some facts they felt should be known. They -7- 2-9-76. oned the honesty of Mr. Zolnay, and questioned whether or not he' thief. One of the men stated he had signed the petition that he ~ot want Mr. Zolnay back. The man refused to answer Chief Cochran's ,tion as to why he signed the petition, stating it would involve ther officer.- Chief Cochran asked Lt. Brooks to talk with these men. ef Coch~an~ ~'-~ ....... ~ .... L~"Broo~s~'~d s~)~et~ 0~.¥Ci~y'Manager's~office at ho would'not~'f~°r'~r~ihs%&te~e~%':~6f:Ri~h~'~d-Zolnay- Captain D. C. £chael of the Delray Beach Police Department spoke on his background ~nd stated he was now the Captain of the Detective Division. He stated politics and law enforcement-do not:mix~· He said the Police Department ~,ns come a long way .since-he first came-to Delray and in the last six c~r eight m.:'.nths politics-has' entered the-City government to the extent that he fc<~ls he has to pamper upper echelon personnel to keep his job. He said t)~.? Department is regressihg 30 years-because of the small group of persons both Within and without the department who are seeking power. He said ~';~'~ did not want to have to keep his job by buttering up any of the Counc:~lmen. Mr. LeRoy Merritt, 18 N.W. 18th Street, Delray Beach, stated to Preston Wright that he had spent more time in a police uniform riding in a police car than all four of the fired patrolmen put together, ard stated he was more than qualified to speak on this matter. Mr. Merritt turned over to the City Clerk a petition which he read as follows: "We, the undersigned, are in full support of the City Administration's stand on not reinstating or rehiring former City employees who were fi~ed for non-performance and further suggest that members of Delray Beach City Council refrain from involvement in departmental and/or administrative affairs, in particular, the suggested forced retirement of Major Gene Billings and Captain Charles Kilgore." The petition contained 683 signatures obtained in ten days. Mr. Merritt said Council was elected by the public to administrate and set policy for the largest business in the City of Delray Beach. He said he knew of no businessman who would fire his top personnel on un- founded comments of a few persons who could not pass a probationary period. He stated City Council should allow the Police Chief and City Manager to run their departments. He suggested Council wait until the investigation is over to make any decisions. Mr. John E. Beebe, Jr., 927 Eve Street, Delray Beach, said the citizens of Delray Beach are receiving unfair treatment at the hands of some members of the Council who are trying to make the Police Department and the City Administration into a political football. He said the City has good government and good administration, including a good Police Chief and a good department. He stated Council would wreck the organiza- tion and discipline of the Police Department if it is torn apart and the authority is destroyed of those who are charged with that responsibility. He supported the City Manager and the Police Chief. Mrs. Krivos asked if Mr. Beebe is the Campaign Manager for Mayor Scheifley. He replied he was. Mr. Carroll Johnson, S.W. 3rd Avenue, Delray Beach, said he did not realize Council was a jury or a court of law. He stated Council is debating firing a man without an investigation. He said he would simply watch to determine if Counci~ is a judge and jury and would take the law into their own hands. Mr. Albert Wilber, 315 3rd Street, West Palm Beach, representing Mr. Zolnay, asked what the motion was on the floor. Mayor Scheifley explained the motion was to fire the City Manager. Mr. Wilber asked %,~hen he could address himself to the situation of Mr. Zolnay. Mr. Sanson ~uggested Council discuss the mo~ion on the floor and discuss Mr. Zolnay as a separate item. Mr. Wilber asked that the letter he sent to ~h~ City Manager be read into the record, stating it was pertinent to the discussion. "To - J. Eldon Mariott - dated February 5, !976. Dear Mr. Mariott: As you are aware this office represents Mr. Richard E. Zolnay. It was brought to this writer's a~tention that a local newspaper on January 27 carried a story on ° the Council meeting of the night before. In this story you were'quoted as saying you had no reason to overturn the firing unless new information came forth. Subsequent newspaper articles indicated the same thought. Based upon the City Council's action of January 26 specifically instructing you to consider the reinstatement of Mr. Zolnay, 2-9-76. I can only assume that you were misquoted in these-news- paper articles. As you will recall Mr. Zolnay appeared voluntarily before the City Council on January 19 and ~ ..... refuted all charges contained_in a printed handout previously made available to the public. Each and~ every charge set forth in the printed handout was shown to be specious and false, primarily by testimony of employees and witnesses called by the City, as well as by sworn Affidavits and testimony from parties presented on Mr. Zolnay's behalf. All present were aware that these charges were disposed of in a manner designed to minimize further embarrassment to the City of Delray Beach. Much has been made of the term 'probationary' as it relates to Mr. Zolnay's employment. I feel certain that the City Attorney will advise you that the use of pro- bationary cannot be applied to a bonded, paid, law enforcement officer of a municipal corporation, if said officer is placed in a position to carry firearms, repre- sent the City, and make other than citizen's arrests. In addition Mr. Zolnay possessed a Police Standard's Certi- ficate from the State of Florida, as required by law, and which is not available to a probationary policeman. If the term 'probationary' is used ia a broader sense as applied to all city employees, no reason whatsoever need or can be given for the discharge in this category. It is my opinion that by issuing to the press information relating to reasons for the alleged termination of Mr. Zolnay, the shield of probationary employee in any sense has been waived. It appears that perhaps your office and the Council has misconstrued my client's position as regards his claim against the City of Delray Beach and/or individuals. Mr. Zolnay's cause of action arises not from his alleged dis- charge per se, but rather from the prior and subsequent actions of the City of Delray Beach, its agents, servants and employees within and outside their scope of authority, up till and including the present. I trust you will receive this letter in the spirit with which it is written; that is, to assist you in making the decision as to Mr. Zolnay's reinstatement. Mr. Zolnay's good faith during the past one and a half years is evidenced by his voluntarily appearing before the City Council, ~hus, providing an opportunity for the City to factually determine and correct the existing conditions as regards this problem, and finally by refraining from instituting litigation until such opportunity has been utilized. Although the City has been on notice by evaluation reports and the alleged termin- ation as well as subsequent official actions, Mr. Zolnay is bound by the statute of limitations which will sound prior to any in-depth investigation of the police department by an independent source as directed by the City Council. Thus, he was encouraged at the meeting of January 26 when you indicated that you would have an answer for the City Council regarding his reinstatement at the February 9 Council meeting. I thank you for your cooperation and trust that you share Mr. Zolnay's interests in the good of the police department and the citizens of Delray Beach." sd/ Albert R. Wilber, Jr. The City Manager stated he encircled one paragraph in the letter as follows: "I feel certain that the City Attorney will advise you that the use of probationary cannot be applied to a bonded, paid, law enforce- ment officer of a municipal corporation if Raid officer is placed in a position to carry firearms, represent the City and make other than citizen's arrests." The City Manager stated if this ~..s true, it is contrary to the City's past policy and practice of the other police de- partments. The City Attorney stated he disagreed with Mr. Wilber. The term "probationary" as the City has been using it does r2fer to the broader definition of a probationary employee, as to whether or not they can be discharged ~or cause or not. In that sense, the term "probationary" can definitely be used. Mayor Scheifley stated the question is whether or not a probationary period is a commonly accepted and good personnel practice. -9- 2-9-76. -. -!., , ~'! . · ,.. :~, ~ : :5. -~:o~ Mr~ Ck Piiti~, 237 Seacr~ Lane','Delray Beach, Stated he Ds one of the Councilmen who hired Mr, Mariott as the City Manager ~nd he:was appearing to defend him. lie said he saw no reason for Council. to ~fire a City Manager on the basis of firing a policeman. He felt it was unobjective and should not be considered. Mr. Pitts ques- ~$oned Mrs._.Krivos as to her reasons for wishing to fire the City Manager. Mrs. Krivos stated she had several reasons. She said a year and a half ago problems began with the police department. She cited the murder of a policeman, a policeman presently in the hospital, and she stated the City Manager has not made any effort to straighten out the problems in the department. She said two of the policemen who were fired in 1974 were fired when the City Manager appointed himself as the administrator. 'She stated he signed the firings as Chief of Police. She said she was not denying that the City Manager has done many good - things for the City. But she said he has fooled many of the people of the City, saying he was the most pOwer hungry individual she has ever known. She said she had to prove through the Code of Ordinances that the Planning Director should attend Council meetings, which the City Manager had refused to allow. She said he had gotten the money from the government for the $2,000,000 bond issue; however, he stated that the money that would be gotten back from the state and federal funds would be used to reimburse the taxpayers and to reduce the millage and bonded indebtedness. This has not been done. Mrs. Krivos said the money re- ceived from the federal government is on deposit in banks; half of the money received from the state of Florida was used to buy the two beach properties, Gwynn-Kucera property and the Lohrman property, which are just sitting there having been taken off the tax rolls. She stated this was Council action that she voted against. She said he has used these items to his advantage. She further stated .she brought to Council's attention in 1971 that the morale of the City employees was at rock bottom and if something wasn't done, that she feared unionization of the employees. This has come to pass in most of the departments.~ Mr. Pitts stated all of these reasons should be considered by Council rather than just the firing of one patrolman. Mr. M. V. Kelly, 800 .Greensward Court, Delray Beach, spoke stating that the City Manager has taken action based on good management principles and Council is trying to stop him from taking action that is needed to help the morale within the department. He stated good business- men get all the information on a subject prior to making a decision. It appeared to him that Council was considering firing the City Manager on an issue that is closely tied in with the police matter. He said Council should not make such a decision until the investigation provided the information needed. He said the City Manager obviously could not satisfy everyone if he is an effective manager. He said Council would be derelict in its duty to make a decision based on the police matter. Mrs. Charlotte Durante, 326 Washington Avenue, Delray Beach, stated the record of the City Manager speaks for him and she felt he is a very capable City Manager. She stated the reasons given for the motion to fire the City Manager wer~ not valid and she hoped Counoil would get some sound reasons to act upon. Mr. Leon Weekes stated the City Manager is highly respected in his profession and is President of the Florida City Managers' Association. He stated the City Manager has made mistakes as have all people. But on balance, he said the City Manager is outstanding in his job and has helped Delray Beach in many ways' He referred to Mr. Bill Lawson, a previous City Manager who was fired by Council for refusing to fire the Police Chief of Delray Beach; Mr. Lawson became the City Manager of' Newport News,.Virginia. Mr. O. F. Youngblood, 210 N.W. 6th Avenue, Delray Beach, said he hoped and prayed that whatever decision is made tonight, that it would be made from the hearts of the individuals. He said he agreed with Mr. Pitts and Mr. Weekes. He said the facts should be weighed before any 0 action is taken. He asked Council to vote based on their individual concepts and not from any pressure from any group. -10- 2-9-76. Mrs. Eloise Michel, 1001 N.E. 8th Avenue, Delray Beach, stated she agreed with Mr. Weekes in that the investigation should be made and no decision should be made until that is completed. Mr. J. Watson Dunbar, 50 East Road, Delray Beach, said he felt Council was acting hastily. He suggested waiting until the investigation and evaluation are completed and then decide what action should be taken. He asked Mrs. Krivos to withdraw her motion. Mr.. Gent stated there was no haste and no emotion in his vote. He said this would be the third time he has voted on the same issue starting last January and he would vote the same way he had voted the last two times. Mr. Sanson stated the consequences of this matter go far beyond the issue of the police officer. He urged the Councilmembers to wait until the results of the investigation are received. If they ~ould agree to this, and the results of the xnvestigation in any way show malfeasance or bad conduct on the part of the members of the police ~epartment, he would support the firing of the City Manager. If he is guilty of anything, and Mr. Sanson included the Police Chief in this statement, they are guilty of not bothering tO find out what was going on. They need to answer for the consequences of supporting Major Billings and Captain Kilgore. Mr. Sanson said to Mr. Kilgore and Mr. Billings and certain other members of the department that "I promise you, you have a very hard time in store for you". He stated he has seen falsified records, he has heard tapes made with very incriminating evidence, and he has talked with many members of the department, both past and present, who are willing to expose many very serious items to the proper legal authorities. He said he had made a pledge to those officers who have been dismissed during this turmoil that he would give them as legal.as possible a platform from which to come and present the evidence that has been presented to him. He stated it is very hard for him notI to allow pressure to dictate his actions, despite his personal feelings. But he said he would not do that because he felt this would be the great- est injustice he could do to those who elected him to act in a responsible, intelligent, educated manner. He said he was not a judge and jury. When the evidence from the investigation comes in, then Council can act. Mayor Scheifley stated he felt it would be wrong for Council to act on allegations that were unproven and statements made by people who were not sworn. He stated if any evidence is presented concerning an~.wrong- doing, he would be the first one to demand their dismissal as soon as he is aware of such evidence. He asked why all of the good programs the City Manager has completed are not being considered. He cited the beach restoration program, the new water filtration system, the establishment of a Community Appearance Board, setting up a local Public Employees Relations Commission, the renovation of the trash pick-up system, and many others. He said it would be a disservice to the taxpayers to fire the City Manager. He felt only one question should be asked - what is in the best interest of the City as a whole. He said no businessman could operate if someone told him whom to hire and whom to fire. He cautioned Council members to obtain all the facts before making this decision. The City Manager stated he felt it was unfortunate in any situation that any single employee be judged on the basis of a single decision that that employee is, by law, entitled to make. He said it is particularly degrading and bad for a community when a City Manager must stay or fall because of a single probationary employee. He said he felt it was not worthwhile for him to attempt to outline his record against the one probationary employee under discussion. As far as the several allegations made by Mrs. Krivos, he .stated he could refute them. In order for the City Manager to be dismissed, written charges must be filed. Should Mrs. Krivos prepare such a list against him, he said he would disprove every one of them. Even a one year employee with the City has a right to face and explain those charges. But the City Manager does not have this right. He s~'%ted this system needs to be improved as far as the benefit to the community is concerned, tie stated he felt he could get another job and that he has been a City Manager for the past 19 years. He said he was concerned with the fact that he was eligible for retirement from the City of Delray Beach in four years and -11- 2-9-76. 'he would b~'r!o~ng_ from $75,000 to $150,000} dlependi3lg upon how long he ~Ved:'af~er the four year period. He Pointed this out to 'show [hat his l~'tegrity is'Worth more than the $75,000 to $150,000 that has Been mdntioned. Mr. Randolph stated he had listened to all the good things that heye been said about the City Manager and all the bad things that have been said about the Councilmembers. He asked if this administration is so afraid that something might be proven by reinstating one man, that there is something left in the statement. Mr. Zolnay has told Mr. Ran- dolph he has no intention of suing the City of Delray Beach and that all he wanted was his job back. Mr. Randolph stated he was certain this man would work if the persons causing trouble left him alone and he would be an ideal policeman. He stated he believed this so much that Mr. Merritt could use the petitions he had to recall Mr. Randolph and he would give up the position gracefully. He said he was afraid if Council voted at this time, it might not be the best thing to do. Mr. Sanson said he asked Mr. Randolph if Messrs. Papy, Clemens and Zolnay were reinstated prior to the results of the investigation and nothing has been determined as to whether they were right or wrong, what has been accom- plished. He said what is best for all parties and for the City is to make certain the facts are before Council prior to making decisions. Mr. Randolph stated he did not vote to allow Mr. Zolnay to come before Council to make his presentation, but he was happy to hear the things that were brought out - things that have been happening in the City for a long time. He said he hoped and prayed that the vote would not be taken tonight, but if the vote is taken, he would vote strictly from his heart and what he believes is right. Mr. Sanson called for the question. Upon roll call, C~uncil voted as follows: Mr. Gent - Yes; Mrs. Krivos - Yes; Mr. Randolph - Yes; Mr. Sanson - No; Mayor Scheifley - No. The motion passed with a vote of 3 to 2. The City Manager asked Mayor Scheifley if he would like for him to finish the agenda. Mr. Sanson moved that the meeting be reconvened at 5:0~ P.M. tomorrow afternoon since there are so many important items to be~ dis- cussed. The City Attorney stated the public hearing items that have been scheduled should be handled at this meeting. Otherwise, the 'items will have to be readvertised. Mr. Sanson asked the City Attorney if the issue just voted upon could be reconsidered if it were tabled. The City Attorney replied it is possible to reconsider it if someone from the prevailing side would make the motion and it were seconded and voted upon. Mr. Sanson requested that this item be tabled until next Monday. night or at a special meeting of this Council this week to discuss the full implications of what Council is doing. Mr. Sanson said he had more he would like to say. Mayor Scheifley asked if any member of the pre- vailing side would like to'make such a motion. No one responded. Mrs. Charlotte Durante said she was deeply disturbed that Council acted upon such a motion to.night. She asked Council to recon- sider their decision in the interest of the City and to consider the issue on a sound basis. She asked the City Attorney to check into the signatures on the petitions that were obtained to qualify candidates for the race as to whether or not these signatures were actually obtained by the solicitor that signed the petition. She also wanted a check on whether the petitions were signed by those voters. Mayor Scheifley Stated Council had reason to believe that Mrs. Krivos has 60 signatures to which she signed a false ~ffidavit. He said it should be investigated. The City Attorney Stated the City Council sits in judgment on its own members and it is up to the City Council to judge the qualifications and election of people to Council. Council would have the authority to investigate it. Mayor Scheifley asked the City Attorney to investigate it. The City Attorney stated the signatures have all been checked w~th the Supervisor of Elections and they all check out. Mayor Scheifley stated the false affidavit allegation should be checked since it is probably grounds for disqualification for running for the office of Mayor. The City Attorney asked if Council was requesting him to investigate the matter. Mrs. Durante requested City Council to investigate the -12- 2-9-76. matter. Mr. Sanson asked.why this was a Council matter. The City Attorney-replied it is a Council matter in the sense that the Council sits upon judgment of members of Council; the City Attorney does not. Mayor Scheifley said the City Attorney should bring Council the facts. The City Attorney replied if Council asks him to investigate a matter, he would investigate it. Mayor Scheifley asked if the Attorney General should investigate it and asked the City Attorney if he was saying he was not capable of investigating it. Any citizen, according to the City Attorney, can request Mr. Bludworth to investigate a matter and it is up to him as to whether to conduct it or not. The City Attorney stated if the City Council wishes him to approach Mr. Bludworth as the City Attorney of Delray Beach, he must be so directed by the City Council. Mayor Scheifley stated he was making an allegation and was requesting that an investigation be made. Mr. Sanson reiterated his statement that this is not a Council matter. Both persons involved are ~cting as candidates, not members of Council. The City Attorney stated Council, as a legislative body, will determine whether or not to sit a member once an election is conducted. He referred to the Adam Clayton Powell case and stated it is an inherent authority of a legislative body to judge the qualifications and the election of members to that body, and also to investigate to make a determination. Mayor Scheifley said he could not understand why Council was so anxious to investigate other allegations that have been made; he stated that he has some allegations that he would like to have investigated. The City Manager replied the point was that the Mayor was not the Council; he is one man. Mayor Scheifley asked if there were any other recourse he could use. The City Attorney stated he could approach the State's Attorney or the Attorney General as a citizen. Mr. Sanson said once again he felt the Council was acting out of its scope. Mayor Scheifley asked Mr. Randolph if he would support the investigation. Mr. Randolph replied he did not care. Mr. Bernenko asked if he could speak. Mr. Herbert Bernenko, 1225 So. Ocean Boulevard, Delray Beach, stated be'had experience in this type of matter. He asked if the City has a body known as the Board of Elections. The City Attorney replied the City Clerk runs the municipal elections and the County Supervisor of Elections runs all other elections. Mr. Bernenko asked if a citizen could challenge the petitions before the City Clerk and have the City Clerk go over the petitions. The City Attorney said he .had already stated what he believed the procedure to be, but said Mr. Bernenko's suggestion was a possibility. Mayor Scheifley asked if Council would ask for an investigation.~ He stated he alleged Mrs. Krivos had signed three false statements on three petitions containing 60 names. Mrs. Krivos said that those three peti- · tions were obtained by Rev. Semmie Taylor. Mrs. Krivos talked to the City Attorney about it; Rev. Taylor handed her the petitions in the presence of the City Attorney. Rev. Taylor had failed to sign the peti- tions. Mrs. Krivos asked Rev. Taylor if he could assure her that each person had signed those petitions in his presence. Rev. Taylor assured her this was the case. Mrs. Krivos then signed the petitions. When Mrs. Krivos was aware that Mayor Scheifley was questioning the petitions, she went to the City Clerk's office and had her pull those 60 names out of the petitioning names; they were not used in her qualifying peti- tions. She has a signed letter from the City Clerk that she qualified to run as a candidate. Mayor Scheifley stated he was not questioning this; he questioned her having signed a petition stating she personally witnessed the signatures. Mr. Tom Jones, 1541 Catherine Drive, Delray Beach, spoke as a citizen, not as a city employee. He said it appears to him that all that is being accomplished at this meeting is flinging mud back and forth. He stated it appeared this action is in retaliation for what City cu-~ncil has already done tonight. He said the City Manager appears to be superb in his administrative capacity. He also said the Police Depart- ment is'basically in good shape. He questioned the dismissal of the City Manager. He stated Mayor Scheifley was throwing mud on Mrs. Krivos because she filed a motion on the City Manager. He said Mayor Scheifley knew these allegations existed and it should have been brought out before; he felt fault was with both sides. He asked that the dissension within the City Council and Police Department be solved. He asked if there was any way that through the documents of the last meeting the Council and City Attorney could review the documents. Mr. Randolph asked Mr. Jones -13- 2-9-76. to place himself in Mr. Zolnay's place. He stated he agreed with Mr. Jones that Mr. Mariott was a fine City Manager; however, he has never agreed with him on his personnel policies. Mr. Jones stated he felt'Mr. Zolnay is correct in his appeal. Mr. Jones asked if Mr. Zolnay would be reinstated since the City Manager has been dismissed. Mr. Gent said he had talked with the City Attorney concerning this possible situation. The City Attorney said Council could not fire or hire anyone else; it would have to be the actual City Manager. The City Manager asked Mr. Jones what would be the rationale in bringing back Mr. Zolnay and any other police officer who had been fired and not doing the same for the fired employees in the other departments. Mr. Randolph said that was an unfair question since he, himself, would have fired some of the employees who had been fired. Mr. Jones asked when a City Manager would be appointed. The City Attorney replied that Council had not set an effective date for the dismissal or appointment. Mr. Jones asked why Mayor Scheifley brcught out the allegations against Mrs. Krivos; he asked why they had not been brought out prior to the meeting. Mayor Scheifley replied it did not make any difference. Mr. Sanson stated it was now 11:30 P.M. and many important items remained on the agenda to be handled by Council. ~ayor Scheifley agreed with Mr. Sanson, but stated Council would have to decide the effective date of the dismissal of the City Manager. The City Attorney stated an acting City Manager did not have to be appointed at this time; any member of Council could continue with the agenda, including the City Attorney or City Clerk. He stated Items 8.d. through 8.h. should be handled at this meeting. The City Attorney stated Council should make a motion to dispense with the regular order of the agenda and begin at Item 8.d. and continue through Item 8.h. Mr. Wilber asked for five minutes to speak to Council on Mr. Zolnay. Mr. Sanson replied nothing could be done concerning Mr. Zolnay since there is no City Manager at this time. Mr. Wilber said he assured Mr. Sanson Council could ho~ proceed without a City Manager at this meeting. The City Attorney stated it was his opinion Council could continue with a valid meeting without a City Manager present. Mr. Wilber asked Mayor Scheifley to be heard for five minutes. Mayor Scheifley agreed. Mr. Wilber stated he had suggested Mr. Zolnay institute'lititgation and not appear before Council. Mr. Zolnay chose instead to appear before Council. He said he concurred in the probationary period. Mr. Mariott stated Mr. Zolnay was fired, not with charges, but on the grounds of unsatisfactory completion o~ his probationary period. The City Administration did not prepare the charges to which Mr. Wilber referred, but did prepare the charges on the request of Mr. Gent. Mr. Wilber stated he was informed Mr. Zolnay was called in and given the opportunity to resign. Mr. Mariott stated this was true. Mr. Wilber said this constitutes extortion and is a felony. He said the da~ following his firing, allegedly from Mr. Mariott, a newspaper article appeared, and since that time, up until the release of the memorandum containing 9 charges, 81 separate distinct charges have been leveled against Mr. Zolnay. Mr. Zolnay has instructed Mr. Wilber that he does not desire to file suit. Mr. Wilber stated he was appearing before Council to give them a choice. The. City Attorney pointed out that before any charges were released, Mr. Zolnay requested that they be released and signed a release releasing the City from any and all liability. Mr. Sanson stated everything had already been said on this subject. The City Attorney informed Council tb~y kad 90 days in which to appoint a City Manager. Tk~ City M~nager ~t~ed He felt COUD~il should decide if the d~mi~sa3~ i~ ef£ecti~e when ~]~ vote was taken; if Coun~li wished a ~rans~tion period, he would be willing to cooperate w~en this. Mr. Sanson said he hoped a time. period for readjustment would be given Mr. Mariott and severance pay be given, and that the City would retain Rt. Mariott until a temporary City Manager could be found. Mayor Scheifley said the three members who created th~ situation should offer some suggestions. Mr. Randolph stated the Mayor was part of the Council also and said one of the problems on this Council was name- dropping. Mayor Scheifley then suggested March 3rd as the dismissal date. Mr. Sanson moved that the City Manager remain in his position until such time as an interim City Manager is found, and that Council discuss at a future point the terms under which Mr. Mariott will leave the employ of the City. Mr. Randolph seconded the motion. Upon roll call, Council voted as follows: Mr. Gent - No; Mrs. Krivos - No; Mr. Randolph - Yes; Mr. Sanson - Yes; Mayor Scheifley - Yes. The motion passed with a 3 to 2 -14- 2-9-76. vote. Mr. Sanson moved~that Council take the City Attorney's statements con~xder~lon ~C~ah~'ie~those items which are necessary to be con- -~id~d,~nd ~hy other~items on the agenda which are of a nature where ~it~-w~Uld be a-~hard~hip for parties to return tomorrow at 5:00 P.M. when -~Counc~l would reconvene to finish the agenda, seconded by Mrs. Krivos. .~Mrs'.~Krivos asRed the City Attorney if the item on the wastewater treat- ~-ment'-plant shOuld be'included. He answered this item, 6.n., could be ~handled tomorrow. Upon roll call, the motion passed unanimously. '- ' ~Mayor Scheifley called the items on,he agenda in order to determine if they should be considered. Items 6.b., 6.c., 6.d., 6.e. ~-and 6.f. were scheduled for Tuesday afternoon. -.6.g. Mr. Fred Roche, May, Zima & Co., City Auditors, read the City Audit Report to Council as follows: "AUDITOR'S REPORT - We have examined the financial statements of the various funds and account groups of the City of Delray Beach, Florida for the year ended September 30, 1975. Our examination was made in accordance with generally accepted auditing standards, and accordingly included such tests of the accounting records and such other auditing procedures as we considered necessary in the circumstances. In our opinion, the above mentioned financial statements present fairly the financial position of the various funds and account groups of the City of Delray Beach, Florida at September 30, 1975, and the results of operations of such funds and the changes in financial position of the Water and Sewer Fund for the year then ended, in conformity with generally accepted accounting principles applied on a basis consistent with that of the preceding year. Also, in our opinion, except for footnote 7, the requirements and covenants set forth by resolutions covering the issuance of bonds and amendments thereto have been fulfilled." sd/ May, Zima & Co. - dated December 18, 1975. Mr. Roche called Council's attention to footnote No. 7~on page 76 of the report. He read an excerpt from the footnote, and explained several items briefly. Agenda items 6.h., 6.i. and 6.j. were scheduled for the meeting to be held Tuesday, February 10, 1976. 6.k. The City Attorney stated this item concerning approval of agreements for water and sewer service - Delray Square Shopping Center at Military Trail and West Atlantic Avenue, was not authorized by the City Attorney or the Assistant City Attorney to be on the agenda. He stated he believed Mr. Klinck had p~rhaps given Mr. Mariott the wrong impression about this having been approved in total. Final approval has not been reached on this item. Mr. Nunn from Baltimore asked if this item could be handled tomorrow. The City Attorney stated he needed more time to review it. It was decided to handle the matter at the February 23rd meeting. Agenda items 6.1,, 6.m~, 6.n., 7.a., 7.b., 8.a., 8.b. and 8.c. were scheduled for the meeting to be held Tuesday, February 10, 1976. 8.d. Mr. J. W. Nowlin, Sr., attorney, ~equested this item concerning second and final reading of Ordinance No. 1-76 be scheduled for the March 8, 1976 meeting. Council agreed. 8.e. The City Manager recommended the second and final reading of Ordinance No. 2-76 be referred to workshop prior to passage. Council agreed. 2-9-76. 8..f. The City Manager presented Ordinance No. 4-76. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF · DELRAY BEACH, RELATING TO THE GOVERNMENT OF THE CITY OF DELRAY BEACH: PROMULGATING, ESTABLISHING, AND PROVIDING ~ REVISED CHARTER OF AND FOR THE CITY OF DELRAY BEACH: PROVIDING FOR A REFERENDUM TO VOTE ON SAID REVISED CHARTER MARCH 2, 1976 AND PROVIDING AN EFFECTIVE DATE. City Manager Mariott read the caption of the ordinance. Mr. Gent moved for the adoption on first reading of Ordinance No. 4-76, -~econded by Mr. Sanson. Mrs. Nancy Kortessis, 213 S. Seacrest Circle, ~lray Beach, said she did not want to see any new Charter adopted that ould allow any further actions such as had occurred tonight. She said f the City Manager had too much power, take it away from him. If the ~.vil Service Board is too weak, make it stronger. She asked Council ~"~ carefully consider this matter. She stated she was not a fan of Mr. ~riott, but he had not done anything that the Charter did not give him i~e power to do. She asked that Mr. Dunbar's letter on the Charter be ~onsidered. Mr. Sanson stated he had made a motion that the letter be ~onsidered in its entirety at a workshop. Upon roll call, Council voted ~s follows: Mr. Gent - Yes; Mrs. Krivos - Yes; Mr. Randolph - Yes; !~r. Sanson - Yes; Mayor Scheifley - Yes. The motion passed with a'vote ~f 5 to 0. Agenda items 8.g., 8.h., 9.b., 9.c. and 10 were scheduled for the meeting to be held Tuesday, February 10, 1976. 9.a. The City Manager presented a report from the Community Appearance Board. The Board at a meeting held on January 28 recommended disapproval by a 4 to 0 vote of the sign permit requested by Bishop Signs, Inc. for the Clock Restaurant to be located at 809 S.E. 5th Avenue. The reasons for the disapproval are that the scale and proportions of the sign were not in keeping with those of the building and with the low profile residential character of the City. Mr. John Bishop, Bishop Sign Company, said the sign, when brought to the Building Department, met all aspects of the Code as far as size, height, and all limitations. The Community Appearance Board felt the sign was too high and too large. He asked why the Code said one thing and the Board disagreed with the Building Department and the Code. A picture of the sign was shown to Council. The sign has a clock on the top of it and it only has two colors, black and white. The City Attorney explained the difference between the mechanical requirements and aesthetic requirements, which involves two different ordinances. Mr. Bishop asked Council to consider the sign as one which is not garish or overpowering. Mr. Sanson stated this is the first instance where it is demonstrated what the purpose of the Community Appearance Board is. He pointed out knowledgeable people are on the Board and voted 4 to 0 against the aesthetic quality of the sign. Mr. Sanson felt it would be doing a disservice to the Board not to uphold their recommendation. He moved that Council uphold the recommendation of the Community Appearance .Board concerning the sign permit for the Clock Restaurant. Mrs. Krivos seconded the motion. Mr. Gent asked if it were possible to make the same sign on a smaller scale. Mr. Bishop said it was possible. Upon roll call, Council voted as follows: Mr. Gent - Yes; Mrs. Krivos - Yes; Mr. Randolph - No; Mr. Sanson - Yes; Mayor Scheifley - Yes. The motion passed with a 4 to 1 vote. Mr. Gene Hoover of the architect's office asked for a list of the members of the Community Appearance Board and asked for their quali- fications. Mayor Scheifley stated the Board consists of a developer, two architects, a landscape architect and a private citizen. Mr. Sanson suggested Mr. Hoover obtain copies of the Community Appearance Board ordinances from the City Clerk's office. Mr. Sanson ~,.'ed to recess the meeting until 5:00 P.M. Tuesday, February 10, 1976, secondeu ~y Mr. Gent. Upon roll call, Council voted 'as follows: Mr. Gent - Yes; Mrs. ~r~.vos - Yes; Mr. Randolph - No; Mr. Sanson - Yes; Mayor Scheifley - No. Tb~ motion passed with a vote of 3 to 2 vote. The meeting recessed at 12:10 A.M. -16- * ' 2-9-76.