by Joe Wilhelm Jr.
Staff Writer
An investigation revealed there is nothing legally wrong with a bill introduced by City Council President-elect Richard Clark to build a batting cage and picnic pavilion at Wingate Park, but the City’s Ethics Commission did have an issue with the use of an emergency provision to get it enacted.
Using an emergency provision itself, the Ethics Commission’s regularly scheduled hotline subcommittee meeting on Monday was followed by a meeting of the full Ethics Commission to discuss the report of the subcommittee.
“We knew if we were going to be able to take action on the issue that we had to meet to approve taking the action,” said Gene Filbert, chair of the commission and member of the hotline subcommittee. “Because the City Council was scheduled to hear the issue Tuesday before our next scheduled meeting, we called an emergency to discuss the issue.”
The “issue” was a complaint received on the ethics hotline June 17 alleging there was a conflict of interest with Clark proposing bill 2009-467, which is scheduled to be heard at tonight’s regular meeting of the City Council. The ordinance introduced on June 9 requests the allocation of $168,078 to the Council District 3 Capital Projects Account to pay for a 6,200 square-foot batting cage and picnic pavilion at Wingate Park at 501 Penman Rd. South in Jacksonville Beach.
The citizen who called the ethics hotline complained that Clark was requesting a no-bid contract be awarded for the construction to Jaguar Builders through “invoking the exception pursuant to Section 126.107(g),” that the bond for assurance of performance be waived and the ordinance be passed on an emergency basis because the contractor “is currently mobilized on a neighboring property.”
Any allegation pertaining to an elected official is immediately forwarded to the Office of General Counsel and Inspector General for review, said Carla Miller, ethics officer for the City. “The caller complained about the no-bid contract that was requested and stated there was a conflict of interest because Clark’s son plays baseball at the park,” she added.
John Phillips, ethics liaison attorney for the Office of General Counsel, investigated the conflict of interest complaint and cited opinions from the State Ethics Commission relating to the matter.
“If the Council member does not receive a ‘special private gain,’ there is no legal conflict of interest recognized by the Florida Ethics Commission in allocating City funds to park areas that could be used not only by the Council member’s family, but thousands of other people,” said Phillips.
The ordinance follows the City Council rules for request of emergency action and allocation of funds from District 3 bonds, according to Phillips, and the ordinance was deemed legal under the current rules of City’s municipal code.
Lacking evidence of any illegal acts, the Ethics Commission’s Hotline Subcommittee voted to recommend to the Commission that the case be closed.
That recommendation was approved by the Ethics Commission with an amendment that a letter be sent to the City Council explaining its concerns with the use of the emergency provision, a no-bid contract and waiving the bond for assurance of performance.
“I’m just worried that the emergency provision is being used to bypass public notice,” said Pat Sher, a member of the Ethics Commission and Hotline Subcommittee, “and keep the citizens out of the discussion.”
The Ethics Commission requested that Mike Clapsaddle, chief of the City’s Procurement Division, attend the meeting to offer some insight of awarding the contract and the determination of an “emergency.”
“That portion of Section 126 is written very broadly,” said Clapsaddle. “We rely heavily on the exhibits attached to the ordinance to make that decision.”
After hearing from the General Counsel’s Office and Clapsaddle, the Ethics Commission discussed what it wanted to say in a letter to the City Council that would be presented at the Council’s meeting tonight.
“I would not be comfortable with a letter from the (Ethics) Commission with any language that would advise the Council that it is our opinion that this is not an emergency,” said Kirby Oberdorfer, member of the Ethics Commission and its Hotline Subcommittee. “I don’t think we have the jurisdiction or ability to do that. To say that perhaps the use of emergency, particularly with this piece of legislation, may end up thwarting the ability of the citizens to give their input, I agree with.”
The commission had a mixed response as to whether or not to recommend that the Council withdraw the ordinance.
“Is just being in the neighborhood enough to warrant an emergency?” asked Mary Swart, member of the Ethics Commission and Hotline Subcommittee. “I don’t think so. I think we should ask them to withdraw the ordinance.”
The Commission voted to have Filbert and Miller collaborate on a letter that would express its concerns on the Council member’s use of the emergency provision, request for no-bid contract and waiver of the performance bond. The next meeting of the Ethics Commission will be June 29 at 5 p.m.
356-2466