OCTOBER 8, 1993

The Lake County Board of County Commissioners met in special session on Friday, October 8, 1993, at 9:00 a.m., in the Board of County Commissioner's Meeting Room, Lake County Administration Building, Tavares, Florida. Commissioners present at the meeting were: G. Richard Swartz, Jr., Chairman; Catherine Hanson, Vice Chairman; Rhonda H. Gerber; Don Bailey; and Welton G. Cadwell. Others present were: Annette Star Lustgarten, County Attorney; Peter F. Wahl, County Manager; Ava Kronz, BCC Office Manager; Barbara Lehman, Chief Deputy, Finance and Audit Department; and Toni M. Riggs, Deputy Clerk.



Commr. Swartz called the meeting to order and stated that the agenda item to be discussed would be the Performance Evaluation of the County Attorney, Ms. Annette Star Lustgarten. He stated that all of the members were provided with a synopsis of the evaluation, which was done by the Board members, from Ms. Lois Martin, Director of Human Resources. In addition, he stated that the members should have the memorandum that includes the copy of the Agreement that the County entered into with the County Attorney on her employment.

Commr. Cadwell stated that he has not changed his position from the time that he met with Ms. Lustgarten and stated his concerns to her.

Commr. Hanson stated that Ms. Lustgarten has been a very competent attorney. She stated that there has been a very definite tendency towards policy setting through the legal department. She clarified that her decision had absolutely nothing to do with the Raceplex issue, but she does feel that Lake County needs to have a "can do" attitude, which she feels the County has not had in the past. Commr. Hanson stated that problems have been created in the legal department, and there has not been enough delegation down to staff members, which has been one of her problems, and she feels this has had a tendency to build bureaucracy rather than to streamline. She stated that it is more of an issue of attitude, at this time, and it is a time for a change.

Commr. Bailey stated that he was not going to vote to retain Ms. Lustgarten. He also stated that the Raceplex was not an issue, and this was never involved with his evaluation process. Commr. Bailey stated that the sense of governing has been made more complicated through the interpretation process. He stated that this is not a policy setting Board anymore, because the Board does not have the flexibility, which he feels comes from some of the interpretations ruled on by Ms. Lustgarten. He discussed the process becoming so cumbersome and expensive, and there being a slow response on different issues, such as the Comprehensive Plan, where he was not informed, or advised, and was given interpretations that were challenged. Commr. Bailey stated that he did not feel the process has been a friendly user process that has been sensitive to people.

Commr. Gerber expressed that she fears the action the Board was about to take was going to reflect badly on the County as a whole, and as a place of employment for other government people who want to come here and work, because the County was gaining a reputation where it is difficult to stand up for what you believe in, and to keep your personal standards and ethics intact. She commented on the types of employees that the County may end up attracting, if the Board continues to move forward in this direction.

Commr. Swartz stated that he was concerned about two issues today. He stated that he feels there is a lack of understanding and appreciation on the part of some of the members as to what the Board is obliged to do as each member is sworn in as an entity of State government, and the laws and regulations that the Board is required to uphold, which are a part of the oath that is taken by each member. He discussed the passage of the State Growth Management Act, and the requirement for comprehensive planning.

He stated that this planning has necessitated requirements of law, which some of the members of the Board do not accept, and some members will actually reject any interpretation given by any staff member. He explained that the Board does set policy, and it can, on any occasion, if it disagrees with the County Manager, or the County Attorney, set policy as it wishes, but will have to suffer the consequences. The County Attorney has an obligation to tell the Board of the ramifications from the actions being proposed, or the ramifications from inaction. Commr. Swartz stated that he feels Ms. Lustgarten has done this, and it has been proven to the point where she will be terminated.

Commr. Swartz stated that the system needs to be addressed, because there is something wrong with Lake County government. He discussed the termination of the previous County Manager, who was noted to have failed in reflecting the conservative bureaucratic views of the Board, yet he brought in two balanced budgets with no increase in millage, and operated the jail within the budget, and the number of County employees, with the exception of Corrections, had actually been reduced over that period of time. With regards to the County Attorney, he stated that she is certainly competent and has provided the Board with legal advise that has reflected the mainstream of legal advise that has been given to County Commissions and City Commissions throughout the State, during the Comprehensive Planning Growth Management process. He expressed that there is something wrong with the system when it allows competent individuals to be terminated in a disgraceful manner.

Commr. Hanson addressed the concerns outlined by Commr. Swartz, and stated that the former County Manager was involved with the design of the jail, which was approved and has increased the County's bureaucracy. She stated that, at that time, there were freezes on wages, and very, very tight budget constraints. She further stated that the bureaucracy problem was there at that time, and she feels the Board made the right move to replace the County

Manager. Commr. Hanson addressed the comments made regarding the upholding of State laws and stated that there are many ways to interpret the laws. She stated that the County is not asking to change the Comprehensive Plan, and this is not an issue. The Plan was mandated by the State to accommodate growth, not to stop growth. She further stated that the County has not looked out for the "little guy" in its attempt to stop development in Lake County. Commr. Hanson stated that policy can be set by delay, and it can be set by bureaucracy. It may be set by the Board to say what the Board wants accomplished at its level, but it can be defeated as it moves through the staff, and this does happen. She stated that it is up to the Board members to see that the process moves forward, and if the Board cannot find the right people to have that occur, then the Board is accountable. Often policy is set by staff, and often this is not realized.

Commr. Bailey discussed the previous County Manager who he feels set in motion some of the things that created some of the growth in bureaucracy, especially with the jail.

On a motion by Commr. Cadwell, seconded by Commr. Hanson and carried, the Board approved to not retain Ms. Lustgarten as the County Attorney.

The motion was carried by a 3-2 vote, with Commr. Gerber and Commr. Swartz voting "no".

Commr. Swartz stated that the Receipt and Release Agreement between Lake County and Annette Star Lustgarten, which is the result of changes recommended by Mr. Jeffrey E. Mandel, P.A., needed to be considered by the Board.

Commr. Cadwell discussed the termination date of October 15, 1993, which was established in the Agreement, with him noting that he did not include this in his motion. He stated that he does not have a problem with the date.

It was noted that it was the intention of Commr. Cadwell and Commr. Hanson to include the termination date of October 15, 1993, at the close of business, in their motion.

On a motion by Commr. Cadwell, seconded by Commr. Hanson and carried unanimously, the Board approved the Receipt and Release Agreement between Lake County and Annette Star Lustgarten, including the recommendations made by Mr. Jeffrey E. Mandel, P.A.

On a motion by Commr. Cadwell, seconded by Commr. Hanson and carried unanimously, the Board approved and authorized the necessary transfer, to comply with the provisions of the Receipt and Release Agreement, from Contingency to Contracted Services.


Commr. Cadwell discussed a future Selection Committee and criteria to employ a County Attorney, and stated that he feels the Board needs to hire an outside attorney to oversee the office, until the selection process takes place, which could take from 4-6 months. He feels that an outside attorney could help during this transition week, and then oversee the office until the selection takes place. Commr. Cadwell stated that, on September 13, 1993, he talked with Mr. Frank T. Gaylord in reference to that position. At this time, he presented the Board with a copy of Mr. Gaylord's response, which provided two options, an hourly fee basis, or a flat fee basis. As part of Mr. Gaylord's proposal, he indicated that, if he were to be selected for the interim position, he would not seek the appointment on a permanent basis.

Discussion occurred regarding the course of action that the Board wanted to take during the interim period. The issue of the County Attorney's Office being burdened with the additional workload was considered, as well as communication that has taken place between several of the Board members with Mr. Tim Hoban, Assistant County Attorney, as to his interest in the position. Under discussion, the Board considered the amount of time that it would take to go through the selection process. The proposal

presented to the Board by Mr. Gaylord was discussed, in regards to his terms for compensation for his services. It was noted that, if Mr. Gaylord was to be hired on an hourly basis, this would allow for the current staff to continue with a less stressful and more controllable workload.

Commr. Bailey stated that he would support the recommendation to hire Mr. Gaylord at the hourly rate.

Discussion occurred regarding the job description of the interim position, with Commr. Hanson stating that she did not see where Mr. Gaylord would have the time with his schedule to supply the 30 hours per week at a flat fee basis. She stated that she would like to see the Board use the current staff as much as possible.

Discussion occurred regarding the figures that Mr. Gaylord presented for compensation of his services. Commr. Swartz stated that, until he knows what direction the Board wants to take as to what type of approach it is going to take to replace the County Attorney, he does not want to make a commitment to bring anyone in on an interim basis.

Commr. Cadwell stated that he had considered going to outside counsel, but after seeing the complexity of what goes on, and the need for availability in an attorney, he suggested that the Board establish a selection committee and go through the necessary process, which he feels will take 4-6 months.

Commr. Swartz stated that he is concerned that there may be others qualified for the position to serve as interim attorney.

Commr. Cadwell stated that he consulted with the County's labor attorney to make sure that the Board did not have to go through a selection process for the interim position. He stated that he consulted with many other attorneys, but there were many that would have a conflict.

Commr. Swartz stated that he would agree to conceptually support Commr. Cadwell's motion, but would like the motion to give

the Chairman and County Manager the opportunity to negotiate a contract to bring back to the Board that would set forth the concepts presented, but not tie the Board into the hourly rate figure, or the flat fee, being presented by Mr. Gaylord.

Commr. Cadwell made a motion, which was seconded by Commr. Bailey, to approve, on an interim basis, to appoint Frank T. Gaylord at an initial hourly rate of $110.00 per hour, with the Chairman and County Manager to negotiate a further interim agreement to be approved by the Board, which will work best in terms of staff responsibilities, and the best way to oversee the office.

Ms. Lois Martin, Director of Human Resources, clarified that the payment for the service will be coming from Contracted Services.

Commr. Swartz clarified that Mr. Gaylord will assume the interim position at 12:01 a.m., Saturday, October 16, 1993.

Commr. Cadwell stated that it was his intention for Mr. Gaylord to become the interim now and oversee the office during the transition week.

Discussion occurred regarding when Mr. Gaylord would be assuming the position as interim attorney, with Commr. Cadwell stating that he wants him to be available Monday morning to begin working with the Board.

Commr. Swartz stated that Mr. Gaylord will come in on Monday, at an hourly basis, to consult with staff and work through the transition period. He will assume the duties as interim attorney on Saturday, October 16, 1993, at 12:01 a.m.

Commr. Swartz extended his appreciation to Ms. Lustgarten for her service to Lake County, and to its citizens, and on behalf of many of those citizens who were not present, he extended appreciation.

There being no further comment to be brought to the attention of the Board, the meeting adjourned at 10:00 a.m.