Messer contract
In a long and often spirited Committee of the Whole meeting yesterday, the City Council gave initial approval for Jim Messer (or rather, the Messer Law Firm) to serve as the city’s full-time city attorney. Messer was hired as interim city attorney several months ago while the permanent position was considered. An RFQ received responses from three firms: Messer’s, Beggs & Lane, and Litvak, Beasley & Wilson. Messer’s proposal was the lowest bidder at $12,500/month (or $150,000/year) with litigation work billed at an additional $245/hour.
Objections to the contract were raised by council members Pratt, DeWeese and Myers. Dr. Pratt asked about the charter question of whom the city attorney would represent in conflicts between the mayor and council. Messer responded that if a lawsuit were ever filed by the council, for example, the city could hire an outside attorney to represent them before a judge.
Councilwoman DeWeese noted that the contract’s proposed five-year duration was potentially longer than the mayor’s term of office and that, as a courtesy to his possible successor, it should not exceed the current mayoral term. City administrator Bill Reynolds, who presented the recommendation in Mayor Hayward’s absence, said that the details of the contract was a separate consideration from whether or not to hire the Messer firm. However, Councilman Johnson motioned to change the terms of the contract to three years.
Councilwoman Myers said she didn’t believe the mayor had the right to privatize a charter-created position like the city attorney.
“If you can privatize the city attorney position, you could privatize the city administrator, the clerk, and every department head,” she said.
The mayor’s office has maintained that hiring a city attorney through a private contract is a cost-saving measure, because the city doesn’t have to make insurance or retirement contributions. One of Mayor Hayward’s campaign promises was that neither he nor any of his hires would receive city benefits. Similar private contracts have been created for the mayor’s chief of staff John Asmar and spokesman Travis Peterson.
In a May interview with Progressive Pensacola‘s Derek Cosson (who himself was since hired by the mayor as a city employee with benefits), Messer said that he viewed the interim city attorney contract as a “public service,” not a job, but that he “would certainly submit a proposal” if the mayor decided to privatize the office permanently.
The Committee of the Whole voted 6-3 to hire Messer, with DeWeese, Myers and Pratt opposing. It will proceed for a final vote at Thursday’s council meeting.
Employee bonuses
Council members Pratt, DeWeese and Myers also questioned whether Mayor Hayward had the authority to award $750 bonuses to each of the city’s 775 employees. As reported by the PNJ‘s Jamie Page, there is a possible conflict with section 215.425 of Florida statutes, which states that “[n]o extra compensation shall be made to any officer, agent, employee, or contractor after the service has been rendered.” There was also a question of whether the mayor had authority to make such a large unbudgeted expenditure (around $600,000) without council approval.
Dr. Pratt said she felt the employees deserved the raise and had no intention of trying to reverse it, but asked if the council should ratify the action to make it legal. Councilwoman DeWeese said if the mayor’s action was found to be unauthorized, it would probably be covered by the city’s insurance, but suggested there could be legal repercussions for the mayor. She motioned to request an opinion from the attorney general about the legality of the bonuses.
The motion failed to get enough votes to proceed to a vote at Thursday’s meeting, but Councilwoman Myers said she had already sent a letter to the attorney general requesting an opinion. I have obtained her letter and reprinted it below.
Dear Attorney General Pam Bondi,
I am requesting an opinion from the Attorney General’s Office in my capacity as a duly elected public official. Specifically, I am a member of the Pensacola City Council representing District 2 within the incorporated area of the city.
I am submitting two questions upon which I am requesting opinions from the Attorney General.
- The Mayor of Pensacola recently announced that he is giving $750.00 bonuses to 775 employees in recognition of their “hard work”. The bonus is not for future work and was not budgeted, or appropriated by the City Council. My question is simple: Do such bonuses violate Florida Statute 215.245, or any other Florida statute?
- The City Council has before it an agenda item that calls for the approval, or disapproval of a recently negotiated union contract with the American Federation of State County and Municipal Employees (AFSCME). Attached is page 31 of the contract that calls for a one-time payment of $750.00. Does such an agreement violate Florida Statute 215.245, or any other Florida law?
Sincerely,
Sherri Myers
City Council member, District 2
&c.
Much of the afternoon’s discussion was spent on two proposed ordinances recommended by the mayor’s office that seemed designed to stop both homeless individuals and the Occupy movement from sleeping on city property or using city restrooms beyond their intended purpose. Many attendees gave impassioned speeches opposing the ordinances, as did council members Myers and Jerralds. When council members asked Jim Messer about the constitutionality of the ordinances, he admitted that he had neither drafted nor reviewed the ordinances. Surprised by this, the council voted unanimously to table them both until they could be reviewed. I plan to write more about the recent city and county efforts to curb homelessness.
Councilman Sam Hall, recently voted council president, is proving to be a strict parliamentarian. At several points in the meeting he cited Robert’s rules and told speakers they were “out of order,” even asking some to be removed. He also alluded to at least two previous interactions with citizens which he believed violated Florida law on cyberstalking, including an email sent to council members which, Hall believed, made an implicit threat against one council member’s elderly mother. (For what it’s worth, I was also copied on the email in question and did not interpret any threat.) He asked all citizens to tone down rhetoric and stick to rational arguments.
Other issues considered by the Committee of the Whole included a $5 million loan to convert the city’s fleet to compressed natural gas vehicles and a request to sub-lease a portion of the Long Hollow Community Center to the non-profit Open Books.
5 comments
CJ Lewis says:
Dec 13, 2011
Messer also applied for the City Attorney position back in 2008 when John Fleming retired. HR found him to be not fully qualified because he was only interested in privatization of the position. Messer’s resume was not among the nine submitted to the Council in May 2008 for their consideration.
This past April, he explicitly promised he would not seek the permanent position of City Attorney, as I recall in response to a question from Councilman Wu. He also said that he does not have the temperament to be the permanent City Attorney. It is hard to see how anything has changed, especially given that he is the only employee of the Messer Law Firm.
He has done a poor job serving the needs of the Council, almost certainly because he mostly serves at the pleasure of the Mayor. He even still owes the the Council legal memorandum promised in June but never delivered. An independent review of his performance, perhaps by the local bar association, would not be flattering. Messer may be a very fine litigator but there is no evidence he is ever going to be “City Attorney” material.
More importantly, there is no evidence the Charter Review Commission ever intended that the two Charter Officers (City Attorney and City Clerk) and constitutional officers (City Administrator and department heads) would be privatized. However, I presume Crystal Spencer will eventually step forward claiming it was the very secret intent of the CRC, having been of one mind using mental telepathy, but they did not see a need to put it in writing, etc.
The Council should direct Messer to do some legal research and analysis to find evidence either way if it is lawful for the Council to approve the privatization of a Charter Officer position without explicit approval of the voters in the Charter. If the Council lets this go unchallenged, it can and should be addressed by Charter Amendment in 2012 clarifying that no Charter or constitutional officer position may be privatized.
As for the bonuses, Section 9-3-24(5) (b) of the City Code pertaining to “Rules governing employee progression and status” has a key sentence that reads, “No bonus shall be paid to any employee unless specifically authorized by the council.” We know for sure that the Council never gave any approval. Has the future City Attorney ever read the City Code? What does he do? Does he play golf all day?
Article 16 Wages of the collective bargaining agreement with the general city employees says nothing about “bonuses.” The first paragraph of Article 16 reads, “The existing wage scale of the members of the bargaining unit shall remain in effect; provided however that the City shall process payment to each member of the bargaining unit in the sum of $750.00 less federal withholding, immediately upon ratification of this Agreement.”
That smells a lot like a legal inducement, i.e. “consideration,” for the employees to agree to the Agreement. They just voted to voluntarily give up their Civil Service System protection not knowing the Charter did not abolish it, Hayward cannot do it on his own and only the Council can do it. If the $750 bonuses are legal, I assume they get that too.
Cyber stalking? Give me a break. Larry B. Johnson is such a drama queen. If he does not apologize, I still plan to send a letter on his behalf to former CRA Attorney Douglas Sale in Panama City begging forgiveness for Johnson’s “obnoxiously rude and boorish behavior.” No amount of public shame will make him change his ways but since he wants to elevate the soap drama, I will do him one better and send a copy to many District 4 homes and businesses too. It would have been easier for Johnson if he had just “manned up” and apologized to Mr. Sale.
As for Mrs. Ford, she is a nice person but as political as they come. She stood out in front of the old Tryon Library with me for days, campaigning for Larry with a sign saying – “Vote for my son!” She stood; Larry sat in a chair sipping sodas. In addition, Mrs. Ford later scolded me for not voting for Larry’s BFF Ashton Hayward. I plan to send her a copy of the letter along with a copy to Larry’s good brother who turned out well. I hope they give him a good scolding.
By the way, Hall has room to speak. When he invited me to meet Jim Reeves for the first time, when I was running for Mayor in 2008, he told me that if I did not do as Reeves wanted, I “could be made to disappear.” Hall then told me all about Willie Junior implying that Reeves had him rubbed out, i.e. murder by suicide. I took “that” as an explicit threat, from Hall not Reeves, who I like, more so when I learned that Johnson hates Reeves with an almost unnatural passion, and later threw up all over the Fish House parking lot after the longest and worst lunch of my life.
Hall is the only City Council Member I have ever seen accept a cash-filled envelope from someone he had just told me then told him what to do on the Council. He also told me he exploits so-called “loopholes” in Florida’s Government-in-the-Sunshine Law. Hall was later caught behind closed doors in city hall in one of those “loopholes” with Commissioner Valentino. I bet Hall and his new political handler Travis Peterson have lots to talk about when they meet to smoke stogies and plot strategy at Cordova Cigars.
Hall said Monday the public has no right to speak at Council meetings, told the Council Members he has new rules limiting their discussion on Mondays and has taken his mantra “All politics is theatre!” to a new low. It will be interesting to see how long the Council stomach him before five of them get smart and vote to give the gavel to John Jerralds, even if it will anger Mayor Hayward.
Goober says:
Dec 15, 2011
Very disturbing that councilperson Hall, who spoke publicly to the council throughout his outspoken membership in Save Our City is now focusing on eliminating public comment and argued against the public’s right to particpate during this meeting.
Thank you Mr. Jerralds and Ms. Myers for speaking up.
Fasten your safety belts . This is going to be a dangerous ride .
Goober says:
Dec 16, 2011
And what a ride last night. Sam Hall is now deciding when the time limit is up, whether someone is off point, and what a citizen can or can’t say publicly.
I found it ironic again that Hall continued to get off point several times. In speaking about a lease issue, he spoke of alternative uses -although the neighborhood might not like it-.
New uses for a property with a lease from the city was not the agenda item. There was nobody there to stop his rambling.
At a time when the city is claiming to improve the livability of downtown neighborhoods, Hall’s idea was a semi truck dispatch operation! What gives? Was it Hall’s idea to place the junkyard at the entrance to downtown?
Jerralds and Myers left in disgust. The same feeling I had watching .
Stephen Pasquale says:
Dec 19, 2011
This council president is out of order, a disgrace to our democracy, and an embarrassing to the city of Pensacola. Impeachment is in order.
Dordogne says:
Dec 22, 2011
Robert’s rules of order should always be used to increase participation, never utilized as a weapon that limits participation. The arbitrary ruling of the chair, and lack of appeal, is the opposite of fairness and the rule of law.