Members raise concerns about political nature of suggested language written by City Attorney Fournier in response to direction provided on Jan. 24
On Feb. 14, in response to direction that the Sarasota Charter Review Committee members gave him last month, City Attorney Robert Fournier provided them proposed new language for the City Charter that detailed a process for handling investigations of any commissioner, as well as a mayor elected by the voters.
Nonetheless, a motion to approve that revised section ended up failed on a 3-7 vote after close to an hour of discussion.
Along with Peter Fanning, who made the motion, the other supporters were Vice Chair Eileen Normile and Cathy Antunes.
The majority agreed that the Charter already provides sufficient direction about how the city commissioners should handle inappropriate or alleged illegal behavior of one of their members.
Concerns about the political nature of the issue arose during the Feb. 14 debate, as the Jan. 24 vote had come after a discussion that focused on a March 29, 2021 incident involving then-Mayor Hagen Brody and city employees.
As explained in reports that employees filed with the city’s Human Resources Department, Brody was angry over a social media post related to a COVID-19 vaccination clinic held at the Van Wezel Performing Arts Hall. Kathryn King, executive assistant to the city manager, wrote that Brody had demanded to see City Manager Marlon Brown because Mary Bensel, executive director of the Van Wezel, was “getting all the credit” for the clinic. Brown was tied up in a meeting at the time.
King added in her report that Brody was unhappy because a video featuring him at the clinic was not on the city’s Facebook page; instead, a video that had been posted focused on Bensel.
Two other employees who witnessed the incident provided reports to the Human Resources Department, as well. One wrote, “I have never seen anyone in the workplace act out like this, filled with so much rage,” referring to Brody.
During his presentation at the outset of the Feb. 14 discussion, Fournier talked about how he had restructured the Investigations chapter, which is Article IV, Section 17, of the Charter, and included specific changes to reflect committee members’ comments on Jan. 24.
In Section 17(a), Fournier made it clear that the commissioners have the power “at any time to cause or conduct an investigation of the affairs of any department, division or employee of the city.”
He also provided a new Section 17(b) to cover, as he put it, “pretty much … everything that could be investigated” in regard to misconduct of a city commissioner or mayor. Among the actions, he pointed out, would be the violation of an expressed provision of the City Charter. The last one in the list was “engaged in other conduct that is detrimental or disruptive to the conduct of City business.”
After Fournier completed his remarks, committee member Wayne Ruben first sought clarification that the process “is all covered in the present Charter.”
“Well, that’s what I said from the beginning,” Fournier responded.
“When the assignment was given,” Fournier continued, he understood that the committee members knew that, but they “wanted to see something that’s spelled out … so that’s what I did.”
Ruben then described Fournier’s point-by-point presentation of the proposed Charter section as making the issue “very political.”
When member Jeff Jackson asked Ruben what he meant by that, Ruben replied, “Because this is dripping with a lot of politics and retribution and public shaming — or attempt at public shaming — by a situation that could be handled by the city manager between the commissioner or commissioners who may have a problem or not.”
Ruben added, “We don’t need a public process to spend all this energy, time and money — precious city dollars — … to replicate what’s in the City Charter.”
Later, referring to Fournier’s draft of Section 17, Jackson said, “If this is going to be used as something political, I sure as hell can’t support it.”
Crystal Bailey told her colleagues that while she did not have strong feelings about some sections of the Charter that they had discussed over the past months, “This is something I have a lot of feeling and conviction for. And I just really don’t want my city government wasting its time trying to do political jockeying and having public censures and pointing out what people did wrong publicly. … It’s very inefficient. It’s a waste of time and resources.”
Bailey added, “I want my City Commission to figure out ways to work together and not be thinking about the next election cycle or who needs to do what to get elected or kicked out or whatever.”
The Charter Review Committee’s recommendations about changes to the city Charter are scheduled to be presented to the City Commission during its regular meeting on March 7. Then the commission will conduct a special meeting at 9 a.m. on March 28 to discuss the report. It will be up to the commissioners to decide on putting proposed amendments before city voters on the November General Election ballot. (See the related article in this issue.)
Questions, comments and consternation
In offering an explanation about his work in response to the Jan. 24 direction, Fournier pointed out that the majority of the committee members present that evening “wanted [the investigative process] all spelled out in detail.” Therefore, he continued, he decided to include “everything I can think of … that could be investigated and then … the actions that the commission could take.”
Section 17, as revised, also provided details about the hiring of “a qualified professional” working under a contract with the city to handle any investigation.
Dan Clermont asked whether the language would “maybe hamstring the commission … from doing the investigation as they’d like to do it.” Perhaps the commissioners would not want to hire an independent investigator, Clermont pointed out.
“It clearly prevents them from conducting an investigation of a commissioner on their own,” Fournier replied, though “arguably, that authority maybe isn’t in [the Charter] now.”
Fanning told Fournier that, based on the Jan. 24 direction, including the desire to have all of the relative points “concisely and clearly in one spot,” Fournier had “done just an excellent job …”
After seconding Fanning’s motion to approve the revised Section 17, Vice Chair Normile emphasized to Ruben the need for details about the process that the commissioners should pursue if misconduct allegations arise regarding one of their colleagues.
Ruben then inquired whether any commissioners unsure of the process already laid in the Charter could ask Fournier to explain it to them.
They could do so during a meeting or outside a meeting, Fournier replied.
Chair Carolyn Mason said she felt the existing language in the Charter was sufficient.
“I don’t think the Charter is supposed to be filled with details on process,” Clermont added. “It’s more about the 30,000-foot view about what’s right and what’s wrong.”
Committee member Philip DiMaria said that while he did not attend the Jan. 24 meeting, he had read the minutes, which included the fact that those present also voted for annual training for the city commissioners regarding the provisions of the Charter. (Normile made that motion, and Cathy Antunes seconded it on Jan. 24. It passed on a 4-3 vote, with Bailey, Clermont and Githler in the minority; Fanning and Jackson voted “Yes.”)
Thus, DiMaria continued on Feb. 14, “We’ve agreed that some level of education is important for any person sitting on the City Commission.”
He also reminded his colleagues, “We were instructed really early on about how this Charter should be simple,” with that direction coming from a variety of municipal officials in the state.
Therefore, DiMaria said, the revised Section 17 that Fournier had written is “just extra fat in this Charter.”
Antunes responded, “The whole point of the Charter is to provide a structure, and this is about clarity, which the commission basically said they needed. … The real elephant in the room is some pretty egregious violations, in any workplace of [human resources] standards and norms. And we’re not talking about something minor,” she stressed. Referring to Brody’s behavior in late March 2021, Antunes said, “It was huge. It was explosive, and people were afraid of violence, and they went so far as to make statements [to the city’s Human Resources Department].”
She also emphasized, “This Charter is not clear and simple when it comes to the options. It if were, we wouldn’t have had a City Commission in July  fumbling around, wondering what they could do.”
She was referring to the commissioners’ July 19, 2021 discussion about whether they should hire an outside firm to conduct an investigation into the March 2021 incident with Brody. The majority of the board members ended up opposing such action.
“Who wants to censure a colleague?” Antunes continued on Feb. 14. “But there are liability issues,” she pointed out, referring again to potentially inappropriate behavior by a commissioner or the mayor that could lead to lawsuits filed against the city if such actions were not addressed formally.
More points and counterpoints
As the discussion continued, Fanning pointed out that the committee members had talked numerous times over the past months about the fact that while the principles for an investigation were in the Charter, they were not easily accessible.
“They needed to be consolidated from the two or three or four places that they already appear in,” he added. “Remember,” he said, “the Constitution of the United States isn’t just for a congressman or a senator; it’s for the people. And the people have to look at that and say, ‘Oh, I understand this.’ The people looked at our Charter and many of them said, ‘I guess there’s no way to recall a mayor. There’s no way to investigate a mayor. There’s no way to remove a person.’”
Fanning added that when the city commissioners discussed the Brody incident in July 2021, “I saw a great deal of confusion … as to what they could do and couldn’t do. No one could say, ‘Look at Section 17, [because] it tells you what you can and can’t do; very clear, very concise.’”
When Chair Mason asked for any final comments, Normile told Crystal Bailey that she felt as Bailey did. “Really,” Normile said, “a congenial commission is a gem, and that’s what you want to have at all times. You don’t want people going after each other.
“But,” Normile continued, “sometimes, if the guardrails are there, and the guardrails are obvious, [that] promotes congeniality. People just know what they need to do. They don’t have to sit there and interpret [the Charter] or ask Mr. Fournier, ‘If I do this, will it be bad?’”
Normile added, “I certainly think the guardrails are necessary, particularly with a four-year mayor, if that’s what happens …”
In November 2021, the committee members agreed to recommend to the City Commission that voters elect the mayor to a four-year term, instead of the commissioners choosing from among themselves a mayor who will serve one year.
Clermont agreed that none of the committee members “wants their elected officials getting away with things and having no repercussions.” Yet, he said, the Charter already provides the means to handle investigations. If the commissioners in July 2021 were confused about their options regarding Brody, Clermont pointed out, “I put that on the commissioners.” They could have talked with Fourier ahead of time, Clermont added. They should be prepared for a discussion, he said. “I don’t think we should prepare for them.”
When Chair Mason called for the vote, Bailey, Clermont, Mason, DiMaria, Ruben, Jackson and committee member Kim Githler all opposed Fanning’s motion.