HomeMy WebLinkAbout6/20/1986M
Friday, June 20, 1986
The Board of County Commissioners of Indian River County,
Florida, met in Special Session at the County Commission
Chambers, 1840 25th Street, Vero Beach, Florida, on Friday,
June 20, 1986, at 4:00 o'clock P.M. Present were Don C.
Scurlock, Jr., Chairman; Patrick B. Lyons, Vice Chairman; Richard
N. Bird; Margaret C. Bowman; and William C. Wodtke, Jr. Also
present were L. S. "Tommy" Thomas, Acting County Administrator;
Charles P. Vitunac, Attorney to the Board of County Commis-
sioners; Joseph Baird, OMB Director; and Virginia Hargreaves,
Deputy Clerk.
Present from the Sheriff's Department were Major Roy
Raymond, Lieut. Bob Reese, and Lieut. Dean Longo.
The Chairman called the meeting to order and explained that
some time back it came to his attention that there was some
difficulty with the public officials liability insurance in re
assuming the function of the jail, and there was also a potential
question as to whether or not we had general liability insurance.
He, therefore, asked staff to research this, and on Thursday, OMB
Director Baird identified to him that we do not have general
liability insurance on the jail; there is an exclusion. The
Chairman continued that he; Acting Administrator Thomas, and OMB
Director Baird had a discussion regarding the various possibili-
ties for handling this situation, and there are several options.
First, we can do nothing and continue to operate as we have for
the last six months. The second option is that there is an
ability to receive this type of insurance from the Florida League
of Cities, but the problem with that is they are not willing to
accept this particular type of insurance unless you convert and
put all your insurance with them. In order to do that, we would
have to cancel our existing insurance policies with Arden
Insurance which would involve some penalties. The third option
involves the Sheriff. We knew the Sheriff was insured in the
JUN 2 0 1986 BOOK ; f�G 763
'JUN 2 0 1966 Boa 64 FnI1764
past in the Florida Sheriff's Association pool, and we,
therefore, called the Sheriff, told him of our problem with lack
of coverage, and asked if he would entertain the possibility of
assuming the responsibilities of the jail once again. Major
Raymond came over and discussed this, and we now have received
the following letter from the Sheriff:
L . ff
P. O. BOX 608
PHONE 569.6700
June 19, 1986
Z.T."TId' DOBECK - INDIAN DIVER COUNTY
MEMBER FLORIDA SHERIFFS ASSOCIATION
MEMBER OF NATIONAL SHERIFFS ASSOCIATION
VERO BEACH, FLORIDA 32961
Honorable Doug Scurlock, Chairman
Board of County Commissioners
Indian River County
1840 25th Street
Vero Beach, FL 32960
Dear Doug:
As a result of the meeting on Thursday, June 19, 1986, between my
representatives, yourself, County Finance Director Joe Baird and Act-
ing County Administrator Tommy Thomas, I feel that we all agree that
it will be in the best interests to the citizens and government of
Indian River County to return the management of the County Detention
System under the direction of my office. I feel that this change
will result in a more economical operations and will provide the pro-
fessional law enforcement guidance needed for this governmental
function.
I would like ti -s letter to act as my authority to you and the County
Commissioners . -:'_e immediate steps to begin the transition to
place the detention, __:tem back under my control.
I feel that in making this change that there are many items which
must be worked out and would suggest a committee of five (5) persons
to discuss the changes, so that an orderly transition can be made. I
would suggest that you select two (2) representatives from the County
Corrections Department to serve along with two (2) representatives
from my Department with the fifth representative being the County
Attorney or his designated assistant, so that any legal or budgetary
problems may be worked out to everyone's satisfaction.
You may also use this
letter as my
authority for
County Finance
Director, Joe Baird, to
immediately,
upon acceptance
of the County
Commissioners, contact
my insurance carrier John Hunt
Agency, Talla-
hassee, and arrange the
transfer or
assumption of
any insurance
policies needed to effect
this change.
KA
In the event that I am unable to attend a County Commissioner's meet-
ing called for the purpose of approving this change, I authorize
Major Roy Raymond to act in my behalf on any decisions needed, as
well as to answer any questions you might have.
Sincerely,
R. T. "Tim" Dobeck, Sheriff
Indian River County
Chairman Scurlock informed the Board that he will be out of
town for a week, and felt this matter should be brought to the
Commission's attention before he left.
Commissioner Lyons stated that he would like to add two
items to the agenda - our personal liability in connection with
the Fire Districts and also a letter from the Mental Health
Center asking for some help in connection with exemptions. The
first item is related to the discussion re liability insurance,
and the other item is timely.
Attorney Vitunac confirmed that it is legal to add items to
a special call meeting if there is a good reason to do it rather
than wait for a regular meeting.
Chairman Scurlock noted that this Special Call Meeting was
for the County Commission not the District Fire Boards, and
discussion arose as to whether this would have to be handled by
the various Fire District Commissions.
Attorney Vitunac,stated that the Commission could call a
special meeting of the Fire Districts at this time.
MOTION WAS MADE by Commissioner Lyons, SECONDED by
Commissioner Bowman, to call a special meeting of
the District Board of Fire Commissioners of the
North and South County Fire Districts.
Since the discussion of liability in the Fire Districts was
a general one which covered both Districts and no action was
taken, that discussion is incorporated as a part of these
Minutes.
3
JUN 2 0 1986 BOOK 6 4 F,�c-L765
JUN 2 0 1966
BOOK 64 PA;E 76
Commissioner Bird was not sure what Commissioner Lyons was
talking about re the Mental Health item, and it was explained
that this relates to a Bill the Governor will be considering and
we have only ten days to do something about it. It involves
participation on a grant, and we will have to come up with
$120,000 through the four counties for Mental Health if we don't
get a rider put on the Bill to specify the match.
ON MOTION by Commissioner Lyons, SECONDED by Commis-
sioner Bird, the Board unanimously added the two items
requested by Commissioner Lyons to the agenda.
DISCUSSION RE JAIL LIABILITY AND TRANSFER OF JAIL
Acting Administrator Thomas reviewed information received
from Crum -Forster, agents representing the U.S. Fire Insurance
Company and quoted excerpts from our policies, as follows:
Policy #5234368113, effective 10/1/85 - "This policy shall
not apply to liability arising out of the activities of any law
enforcement personnel and/or agency."
Policy #500-4393462, 10/1/85 - "It is agreed that personal
injury liability as defined in Section 2 of Form FM 101.0.751
General Liability Extension Endorsement does not apply to the
Sheriff or the employees of the Indian River County Sheriff;s
Department or the County Jail or any of the employees of said
jail."
Attorney Vitunac then reviewed the following memo:
4
TO: Board of County DATE: June 20;'1986
Cmmi ss i oners
SWJECr: Control of County Jail
FFM Charles P. Vitunac, County Attorney
The law in Florida concerning who controls the County jail was
succinctly stated by the case of Ba her v. Alachua County, 305 So.2d
838, wherein it was held that:
Where a state constitution does not describe.the duties
of a Sheriff, he will be deemed to have power usually
regarded as belonging to the office, including that of
the custody of the common jail and of the prisoners
therein... (T)he contrary argument... that the County is
ultimately responsible for the operation of the jail is
without statutory or decisional authority.
In 1981 the 4th District Court of Appeal, which governs Indian River
County, held in White v. County of Palm Beach, 404 So.2d 123, that
§30.49, F.S. (whit requires the Sheri ff--to-70mit a proposed budget
annually showing the -estimated amounts of proposed expenditures for
operating and equipping the sheriff's office and jail) is the statutory
source of -the Sheriff's duty to operate the jail. _
Backing up these two cases are opinions of the Attorney General in
77-59, 79-44, and 79-49.
In light of these rulings by the courts of appeal and the Attorney
General, it is my opinion that Ahe operation of the County jail is one
of the duties of the constitutional office of Sheriff, and, without some
authority authorizing a transfer of this power from the Sheriff to the
Board of County Cmmissioners, , is a function which should be performed
by the Sheriff.
Attorney Vitunac noted that there is no statute which says
specifically that the"Sheriff has the primary responsibility for
operating the jail, but there many statues which imply that this
responsibility lies with the Sheriff. It was his belief that it
is the Sheriff's obligation to run the jail just as it is the
Clerk's obligation to be recorder for the Board.
Commissioner Wodtke noted that it was the liability we were
told the Commissioners had personally and collectively for the
operation of the jail which led him to reach the decision of
saying we needed to have some direct authority in the operation
of that facility. However, if Attorney Vitunac is saying it is
the statutory responsibility of the Sheriff to run the jail and
that liability lies with the Sheriff and not the Commissioners,
5
Jug 2 0 1986 . Boa 64 PAE767
JUN 2 ® 1986 BOOK 64 F4,,7lit
68
then he certainly felt we need to put the jail back where the
authority lies and what we need to talk about is what can we do
to get liability insurance on the jail immediately. He believed
it has been indicated that the Sheriff has a source which will
write that kind of coverage. Commissioner Wodtke assumed that
our insurance agent, Mr. Arden, has been contacted to see if he
can put a rider on our policy.
OMB Director Baird confirmed that he contacted the Arden
Agency, and Mr. Arden has been attempting to get such a rider but
has not been successful. He noted that the liability insurance
industry in general is in a state of upheaval at present.
y
It was generally agreed that this is not Mr. Arden's fault;
it is due to the state of the liability insurance industry
itself.
Commissioner Bird asked Attorney Vitunac if he had found
cases of law where suits have been filed relative to a jail,
naming the Board, and the court has found the Board was not
liable.
Attorney Vitunac noted one is cited in his memo, the second
case - White versus Palm Beach County. The Sheriff runs the jail
there, and the Sheriff and the Board were sued. The Board was
sued because it did not provide enough money for the jail to be
run properly, but the Judge said the fact that the county has a
duty to provide funds for the operation of the jail can hardly be
the basis for holding that it thereby becomes responsible for the
day to day designations of which prisoners are to be placed in
what cells, etc. That is the duty of the Sheriff. He also said
the decision of how much money they fund was a discretionary one
which is immune, and the county was dismissed from that case
except as the county was involved in the day to day operation of
the jail.
Board members felt this is just about opposite information
from what was given them previously, and Commissioner Bird
6
emphasized that he never would have made the decision to take
over the Jail if he had felt we were liable in any way.
Chairman Scurlock believed by not operating the jail, the
only potential liability we would have would be if the Sheriff
says he needed money to do certain things and we refused the
funding.
Commissioner Bird felt Attorney Vitunac had said the court
would not uphold that either, and Attorney Vitunac agreed.
Major Roy Raymond did not feel that is a clear cut matter.
He agreed if the Commission was involved with the day to day
operations, then the Commission would be liable, but he also felt
if the Sheriff called the Commission's attention to a dangerous
situation in the jail and the County refused money to correct
that specific problem,, then they might be liable jointly.
Commissioner Bird wished to know if the Commission made the
decision to offer the jail back, would the Sheriff just send off
a telegram to the Hunt Agency and get it confirmed that he was
covered immediately or would there be a waiting period.
OMB Baird informed the Board that he had just gotten off the
phone with the Hunt Agency, and he felt they could take over the
insurance coverage on the jail almost immediately - maybe not
today, but probably Monday. It would be within a very short time
frame.
Discussion ensued regarding transfer of the employees back
to the Sheriff, and Major Raymond did not anticipate any problems
but emphasized the need for the 5 -man committee suggested in the
Sheriff's letter.which he felt could iron out any problem that
might arise.
Commissioner Bird assumed that Jail Administrator Bill
Baird has prepared some type of budget for the operation of the
jail for the coming year and wondered if Major Raymond had seen
it and feels they could live with it.
Major Raymond advised that they do not have the complete
budget, just an overview, but felt confident that Mr. Baird would
7
JUN 2 0 1986 BOOK 64 r,+,1:769
JUN
2 ® 1986
BOOK 64 Fn,r
770
have done this very capably
as he has been an excellent jail
administrator and they would keep him in that capacity.
Commissioner Bird then asked about any penalties we might
incur if we changed our insurance, and OMB Director Baird advised
that he could not get any numbers on this from the agency.
Commissioner Wodtke continued to discuss the possibility of
the Board getting the insurance and continuing on with the jail
until the Sheriff could take it over on October 1st, and Director
Baird pointed out that the Sheriff's pool will not accept a jail
that is run by the County Commissioners. In addition, he pointed
out that under our present insurance we are under a five million
dollar commercial umbrella, but the League of Cities plan, if we
decided to go in it, would only go up to 1.5 million.
Chairman Scurlock discussed the legal actions against the
County relatiN;e " .:ail during the last six months and
believed all these have been resolved in favor of the County.
Attorney Vitunac confirmed that Attorney Wilson handled
these and there were nine suits during that time.
Commissioner Bird did not see how the Board could continue
to put the taxpayers in the hazardous situation of being hit by a
tremendous uninsured suit.
Acting Administrator Thomas expressed his belief that the,
Sheriff is the only one who is in a position to give us the basic
coverage and also keep us under the five million umbrella, and
Commissioner Lyons suggested we give the Sheriff an hour to
contact the agency and get the coverage.
Chairman Scurlock wished to make it clear that he was not
for transferring the detention facility because we have problems
with the way it has been functioning but simply because it
appears we have more liability operating the facility.
Traditionally it seems everything is geared to the Sheriff
operating it and the coverage is geared toward the Sheriff as
well; so, he would suggest authorizing staff to set up the
committee as suggested to provide for an orderly transfer. He
8
noted that the Sheriff indicated in his letter if we take that
action, that he has given Mr. Baird authorization to make
immediate contact with the insurance company on his behalf.
Administrator Thomas recommended, if the Board wishes to go
that direction, that a telegram be sent this evening stating that
we wish to be covered as of this date and have it made a matter
of record.
MOTION WAS MADE by Commissioner Lyons, SECONDED by
Commissioner Bowman, that staff set up the committee
as recommended in the letter from Sheriff Dobeck
dated June 19, 1986, to assist with the orderly
transition of the detention system back to the Sheriff
and send a telegram to Hunt Agency asking for insurance
coverage as of this date.
Commissioner Wodtke felt if we take this action, the Sheriff
should contact the agency. He noted that the jail is under our
authority now, and there is some concern as to whether the
Sheriff can get the coverage immediately. He suggested that as
soon as we determine that it is insurable for the Sheriff that we
transfer it at that time.
It was pointed out that in his letter the Sheriff gave his
authority for OMB Director Baird to contact the Hunt Agency and
take care of the insurance transfer and also authorized Major
Raymond to act in his behalf.
Major Raymond stressed that the Sheriff's Department did not
come begging for the jail back, but they would be happy to accept
the jail at the time they are assured by the Hunt Agency that
they are insured. He stated that he would be glad to go with OMB
Director Baird right now and call John Hunt of the Hunt Agency
and get this settled.
It was agreed that Major Raymond and Director Baird should
contact the insurance agency while the Board discussed other
9 8001( 6 4 PAGE 771
JUN 20 1986
Fr -
SUN 2 ® 1986 BOOK 6, 4 F 772
matters, and Commissioner Bird stated that he would vote to
relinquish control of the jail to the Sheriff as soon as he is
willing to accept it.
COMMISSIONERS LYONS AND BOWMAN AGREED TO REWORD THEIR
MOTION to allow for transition of the detention system
to the Sheriff as soon as he is willing to accept it.
THE CHAIRMAN CALLED FOR THE QUESTION. It was voted on
and carried unanimously.
DISCUSSION RE LIABILITY IN FIRE DISTRICTS
The Board of County Commissioners recessed temporarily and
reconvened acting as the District Board of Fire Commissioners of
both the North and South County Districts.
Commissioner Lyons wished to know if we are covered in both
Fire Districts from the standpoint of personal liability, and
Chairman Scurlock advised that we are not but he believed a while
back we voted to indemnify ourselves as the County Commission.
Attorney Vitunac clarified that the Board members cannot be
sued individually; they would have to be sued in the name of the
county unless it is alleged that one acted beyond the scope of
his duty and did something malicious or criminal, and in that
case the county wouldn't defend them anyway.
Commissioner Lyons asked what happens if you are not guilty
but you go through a lot of money defending yourself, and
Attorney Vitunac stated that the county would defend the
Commissioner unless it looked on the face of it as if the other
side has stated a good case against him - then he would have to
defend himself. If the Commissioner wins, the County pays him
back, but if he loses, it is his own expense.
Commissioner Bird asked if the Board is at any more risk.
sitting as the South County Board of Fire Commissioners than as
the Board of County Commissioners, and Attorney Vitunac advised
10
it is not; it is an additional risk, but it is the same type risk
they incur sitting as the Board of County Commissioners.
Discussion continued re questions of personal liability re
civil rights, etc., and Attorney Vitunac advised that the Board
members have good faith immunity; a Commissioner would have to
be acting in bad faith to be found liable. The County-, however,
could be found liable simply if it was wrong whether in good
faith or not.
Chairman Scurlock just wanted to be sure the Commissioners
have full protection as he did not want to be faced.with tremen-
dous legal expense to defend himself against some frivolous suit.
Attorney Vitunac assured him he would not be faced with that.
Further discussion followed re the fact that the Board has
no public officials liability insurance, and Chairman Scurlock
felt that, in any event, when we go into our next budget year we
could instruct staff to get that liability insurance if it is
available.
Commissioner Wodtke continued to express his concern that if
the Commissioners cannot get this insurance and no one is willing
to write it, we will have a lot of liability, but Attorney
Vitunac again assured him that if the Board member acts in good
faith and within the scope of their position, they are not liable
personally.
Acting Administrator Thomas reported that because of this
on-going problem, staff is considering coming back at budgettime
and asking for a risk management person, fully qualified person
who would devote his time to this and some other areas such as
Workmen's Compensation where we feel that we could cut our
losses.
Commissioner Bird felt we had talked about this before, and
Administrator Thomas confirmed that this position was funded
previously, but no one was ever hired.
OMB Director Baird agreed that there is a need for a
specialist in this area.
11
JUN 2 0 1986
a00K 6 F� n 773
A uuc
JJUN2 0 196 BOOK
774
The District Board of Fire Commissioners recessed briefly at
4:50 P.M. in order that they might reconvene as the Board of
County Commissioners to conclude discussion re transfer of the
Jail.
TRANSFER OF JAIL - continued)
Major Roy Raymond returned to the meeting and informed the
Board that the Jail is covered by insurance under the Sheriff as
of 4:44 P.M. this afternoon, and, therefore, according to the
Board's Motion, the Jail has been officially transferred to the
Sheriff as of that hour.
Major Raymond felt there are probably some legal considera-
tions to do whatever is necessary to actually transfer the Jail
back, and he requested that one of the County representatives on
the committee of (4 n�f@
someone to represent the financial aspects.
Administrator Thomas pointed out that the Jail Administrator
becomes the Sheriff's employee immediately so the Sheriff can
appoint him to the committee, and he believed the County will
appoint OMB Director Joe Baird also.
Commissioner Lyons felt we should have someone contact Jail
Administrator Baird and officially inform him, along with all the
other jail employees, that they are now working for the Sheriff.
Major Raymond reported that he informed Capt. Baird of this
possibility earlier today, and he stated he was happy about
whatever the outcome was.
Commissioner Lyons felt he should be notified officially by
our staff, and Administrator Thomas agreed to take care of this.
Chairman Scurlock believed we should authorize Acting
Administrator Thomas to appoint appropriate staff members to work
on the transition, and the Board agreed.
12
The Board of County Commissioners recessed at 4:54 P.M. and
reconvened as the District Board of Fire Commissioners of the
North and South County Districts.
DISCUSSION RE LIABILITY IN FIRE DISTRICTS (Continued)
Attorney Vitunac read the following from state law:
"No County Commissioner shall be held personally liable in tort
or named as a defendant in any suit for damages suffered as a
result of any act within the scope of his employment unless he
acts in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights, safety
or property." He emphasized that the Board member can't even be
named unless someone alleges these facts.
Commissioner Lyons inquired what happens if someone does
allege them, and Attorney Vitunac advised that his office and the
insurance agents would look at the claim to see if it had any
validity to it, and if they think it is an "off-the-wall case,
they defend it anyway and just move to dismiss it, but if the
claim is a true one and there is a great chance, of losing the
suit, then the insurance agent would write us a letter saying
they do not cover that and you better get your own lawyer.
Discussion Conti"hued at length re the possibility of law-
suits and who would defend, etc., with Commissioner Lyons contin-
uing to express concern about having to front the money for
defense.
Attorney Vitunac believed that one of the problems
associated with working for government is the possibility of
these crank lawsuits.
After further discussion, the Chairman felt that during
budget sessions, we will hear some recommendations for an
insurance, or risk management person, and he believed one of the
first things this person should do is look into all this as he
did not think there is any quick solution.
13
JUN 2 0 1986 BOOK 64 FnUE 9 °'ry
75
?JUN 2 0 1986 sooK 64 ?,A -UF 776
Commissioner Lyons had one other insurance question - he
noted that he still does not know what our liability is for our
firemen driving the ALS station wagons, and he would like to have
that in writing.
OMB Director Baird advised that he has some information on
that and will supply it to Commissioner Lyons.
The District Board of Fire Commissioners adjourned at 5:00
P.M. and immediately reconvened as the Board of County
Commissioners.
REQUEST FROM MENTAL P"'FALTH CENTER
Commissioner Lyons referred to the following communication
from the Indian River Community Mental Health Center:
R
INDIAN
RIVER
COMMUNITY
MENTAL HEALTH CENTER, Inc.
800 AVENUE H, FORT PIERCE, FLORIDA 33450
305-464-8111
RICHARD L. MILLS
June 18, 1986
Dear Commissioi
INDIAN RIVER COUNTY BRANCH
1314 ;,i Iih ',;T REE I
VF110 BEACH FLORIDA 3NnU
3115%% 7911;
MARTIN COUNTY BRANCH
4:;!.AMUt N AVI NIA
.,I, IAIII fLOHIUA 13494
305 283711
OKEECHOBEE COUNTY BRANCH
"I'MN 1'A14I1III AVE I'W,
11M111 Ill tltll 11 !11111 tl. !•1;.•
n I'1 /r.'f 11.11
PRIMARY ALCOHOL RECEIVING CENTco
III I� III i 11t1!! R1.1
.1 "I'I NI IAVI 11 I!' 1A1
I. !ISI 1•if lil,i II144IIiA :Y7'.i
:111'. 41 •1 6111
The Center and the clients we serve need your immediate help
on a legislative matter regarding Medicaid.
We expected "proviso language" to be included in the Senate
Appropriations Act. This language stated that no local match
would be required on 56t (Federal portion) of the Medicaid
dollar; and there would be no audit paybacks solely due to
Medicaid. This language was omitted. The result - total
Medicaid dollar must now be matched.
Additionally, the general revenue dollars are reduced - dollar
for dollar - for each Medicaid dollar earned by your Center.
14
Please do the following:
Contact. by letter, telegram, or phone your legislators and
request legislative relief. This relief can be granted in
the "Statement of Intent" which will be added to the Appro-
priations Bill within the next ten (10) days. Ask them to:
Incorporate the 564� match exemption
and the Medicaid audit paybacks
exemption in the "Statement of Intent".
You should be aware that the legislature's failure to do this
will necessitate our four (4) County Commissions being asked
for an additional $122,000 to maintain our current operations.
If you need further information, please contact Jack Lance,
Director, Community Relations at the Center.
Please contact your legislators now.
Sincerely,
LL
�ichard L. /mIlls
Executive Director
Thanks foV5rIW akL. '
Commissioner Wodtke confirmed that this is a complicated and
scary situation, and he felt we should authorize the County
.Attorney to send a telegram to our legislator as requested.
ON MOTION by Commissioner Lyons, SECONDED by Commis-
sioner Wodtke, the Board unanimously authorized the
County Attorney to send a telegram to our legislator
urging that the 56t match exemption and Medicaid audit
paybacks exemption be incorporated in the "Statement
of Intent" to"be added to the Appropriations Bill.
There being no further business, on Motion duly made,
seconded and carried, the Board adjourned at 5:05 o'clock P.M.
ATTEST:
Clerk
15
C=-1 _"0_00�&
Chairman
BOOK 64 FAGE777
JUN 20 1986J