Special City Commission Meeting

City of Deltona 2345 Providence Blvd. Deltona, FL 32725 Minutes Special City Commission Meeting Tuesday, January 28, 2020 5:30 PM Deltona Commission Chambers 1. CALL TO ORDER: The meeting was called to order at 5:30 p.m. by Mayor Herzberg. 2. ROLL CALL – CITY CLERK: Present: 8 - Commissioner Avila-Vazquez Commissioner Bradford Commissioner King Commissioner McFall Commissioner Nabicht Vice Mayor Ramos Mayor Herzberg City Attorney 3. INVOCATION AND PLEDGE TO THE FLAG: Commissioner King gave the invocation and led everyone in the pledge to the flag. 4. BUSINESS: A. Discussion regarding the City Manager’s resignation. - City Attorney Skip Fowler, City Attorney (386) 878-8872. Strategic Goal: Internal/External Communication Mayor Herzberg stated thee is one order of business regarding the City Manager's resignation and that City Attorney Fowler has provided the Commission with a document. City Attorney Fowler stated basically as a result of the Regular Commission Meeting last week where the Commission voted no confidence in the City Manager, she has elected to operate in accordance with the terms of her contract and to resign her position which will take at least four Commissioners to agree to it. The termination would be effective at midnight tonight and she will be compensated in accordance with the contract for her accrued leave and sick time as well as her salary for 20 weeks. Ms. Shang has asked for two things that are not in the contract. The first is an agreement not to disparage each other and it is entirely up to the Commission if they wish to agree to that. The second thing that goes along with the first is that if either she or the Commission violates the terms of the contract and the agreement that the prevailing party, should there be litigation, would be City of Deltona Page 1 Printed on 2/26/2020 Special City Commission Meeting Minutes January 28, 2020 entitled to attorney's fees. He sees no particular advantage to the City for that paragraph so he would arguably recommend against agreeing to that. As for the disparaging agreement it is up to the Commission, it will not cost anything one way or another and he leaves that up to the Commission's best judgment. Commissioner Bradford stated the Commission turns in evaluations but, according to the contract those evaluations are supposed to be turned in October 6th each year at which point the Commission is supposed to have a discussion or review them and upon the review a raise is given. She is going on year four as a Commissioner here, the Commission has never had a discussion but, looking at the salary there is a $21,996.80 pay increase per year. She asked who authorized the pay increases? Mayor Herzberg asked City Attorney Fowler who replied he does not know the answer to that question and that Finance Director Camille Hooper may know. Mayor Herzberg asked if the information was in the contract signed by both City Manager Shang and the Commission and she asked what section of the contract Commissioner Bradford was referring to. Commissioner Bradford replied Section 3, Compensation, and Section 12, Performance Evaluations, Page 6, and she read that section. Mayor Herzberg asked if the City Clerk and Deputy City Manager Dr. Cooper had any information on that and both replied no. Mayor Herzberg stated what the Commission is looking at is the City Manager's resignation with 20 weeks severance and her accrued time at the current level she is getting paid. City Attorney Fowler replied presumably yes. Commissioner Bradford stated according to contract the Commission should have reviewed all the evaluations. She does not disagree that she was at $175,000 but, who authorized the raises and how did it get to the current level because it is like a staff member giving themself a raise. She asked if the raise is in line with the other individuals in the City would have received or is this raise above and beyond that. She has not problem giving City Manager Shang what other staff members would have received. Mayor Herzberg stated that was a standard 3% and Commissioner Bradford agreed. Mayor Herzberg stated that 3% of the base salary brings it to $5,250 when the base is $175,000. Commissioner Bradford asked what does this do to change the contract now that it has been identified that raises were given without Commission approval. City Attorney Fowler replied it would appear that an oversight has taken place in the sense that the Commission did not approve the raises if in fact it did not. The contract provides that Ms. Shang is entitled to "severance at her current rate of pay". He does not know what happened so it is hard for him to identify who if anyone might be at fault. Commissioner Bradford asked if a regular staff member were to receive a substantial raise and did not tell their superiors would that employee be terminated and to her this is a breach of contract because Ms. Shang gave herself raises without Commission approval. City Attorney Fowler stated the only thing he can say is that the Commission approves the budget annually and presumably it was part of it. Commissioner King stated he too has not been happy about the salary either and he read Section 3, Compensation "a" of the contract. The Commission at the time the contract City of Deltona Page 2 Printed on 2/26/2020 Special City Commission Meeting Minutes January 28, 2020 came out approved it so this Commission can talk about that forever but, it is not going to change what the contract says. Vice Mayor Ramos stated he is not sure that he is okay with the last paragraph, the last two sentences, as it relates and he heard City Attorney Fowler does not advise the Commission, if anything, to agree with the last sentence of the resignation letter and he read it for the record. He stated he has a problem with the last part of the resignation letter and Commissioner Bradford also agreed. City Attorney Fowler stated he does have a problem with it, it is pretty much a one way street in the sense that the likelihood that the Commission is not going to pay Ms. Shang when she is supposed to be paid is pretty slim so the issue would probably revolve around the first item which is whether or not the Commission agrees to the disparagement provision. Then the question would be did you or did you not violate that. It is not part of Ms. Shang's contract, it is a request she made and it is up to the Commission to say yes or no as may believe appropriate. Vice Mayor Ramos stated again, it is not part of contract, it is a request from Ms. Shang and he is against that request. He suggested to go forward as it pertains to the contract itself. Mayor Herzberg stated the non-disparaging agreement is a gag order on the City and the Commission and if someone is not guilty why do they need a gag order or if a person has nothing to hide why do they need a gag order. She absolutely does not support that in this agreement, absolutely not.. Commissioner King stated he too is not in agreement of any non-disparaging agreement. When someone does something you know should not have been done and that person goes somewhere else. For the Commission to not say when asked why that person left the City and tell the truth, then the Commission might as well tell a lie. He is totally against the non-disparaging agreement but, frankly if you want to go somewhere else and do the same thing why would we not warn people about our experience, it does not make sense. Motion by Commissioner Bradford, seconded by Commissioner King, to accept Ms. Shang’s resignation, paragraph one and two, based on her contract only, minus the last paragraph that specifies that "Ms. Shang requests a non-disparaging agreement whereby neither party will disparage the other. The City and Ms. Shang agree to attorney fees in the event either breaches this agreement". So she will accept this minus the final paragraph. We do need to include the section of "Section 16 of Ms. Shang’s employment agreement shall survive". So basically the first two sentences of the third paragraph need to be struck. Effective immediately and have all servers checked to make sure no items were deleted or anything was changed or taken off the computer from Thursday to today. Commissioner Nabicht asked for verification, in Commissioner Bradford’s reference to the two paragraphs she did not refer to what document that is. There could be confusion, are we talking about the employment agreement or the actual resignation letter. He just thinks City of Deltona Page 3 Printed on 2/26/2020 Special City Commission Meeting Minutes January 28, 2020 that needs to be clarified for the record. Mayor Herzberg stated she agreed and she asked Commissioner Bradford to restate the motion referencing the document. Amended motion by Commissioner Bradford, seconded by Commissioner King, to accept Ms. Shang’s resignation per her employment contract specifically which is detailed in paragraph one and two which states pursuant to paragraph 9d of her contract and then she will be entitled to Section 10, severance benefits and her accrued leave and benefits pursuant to Section 11 minus paragraph 3, the first two sentences and leaving in Section 16, Ms. Shang’s employment agreement shall survive. Effective immediately. Mayor Herzberg stated this is referencing the resignation letter that is in front of them today and not the employment agreement and Commissioner Bradford agreed. Commissioner Bradford stated she knows Ms. Shang was at the office and she does not know if she was at City Hall Saturday and Sunday but, anything once this was discussed Saturday, Sunday, Monday and Tuesday, she wants to make sure that everything is checked. Anything that was deleted from her computer is retrieved and that it is verified that it needed to be retrieved and evaluated. Mayor Herzberg opened public comments. Elbert Bryan, 1625 Joyner Drive, Deltona, spoke about the thing that is lacking from tonight is a dollar amount and everyone deserves to know that, its nice to say 20 weeks but what does it equate to, with this resignation to move forward with greeting the community in a different way, the community wanting to come together, the community wanting to voice their opinion without fear, code enforcement, improvements in the last 5 years in the economy, the employees taking a beating over the last 5 years, the employees being some of the best around, wanting to say he is proud of the City, we the people, and that the Commission represents the people. Jennifer Chasteen, 662 Mosquero Avenue, Deltona, thanked a commissioner for listening at the last meeting, not being concerned about being popular, commissioners showing courage, comments making her feel hope, the vote of no confidence being long overdue, the motion to dismiss the City Manager from her duties failing, City getting part of what it deserves which is the City Manager's departure, the City Manager withholding information from the Commission, many reasons to validate a motion for termination with cause, the tension during the City Manager's tenure, moving forward with open minds and working together, Dr. Cooper and his characteristics, the newspaper article about a firefighter and who was involved with that agreement, looking forward to brighter skies in the City, continuing to participate in the process, she thanked those who were courageous last week and taking the steps to repair the fractures in the community. City of Deltona Page 4 Printed on 2/26/2020 Special City Commission Meeting Minutes January 28, 2020 Richard Bellach, 1665 South Acadian Drive, Deltona, spoke about Commissioner Nabicht being a former firefighter and his son being a current firefighters, the Commission not voting for the City Manager's termination, nobody knowing the Fire Department better than Commissioner Nabicht, if Commissioner Nabicht wants to take a walk and see who comes back first, ten years on the dais and voting in favor of the City Manager for 5 years, he questioned who the Commissioners represent, the City Manager walking away with the residents' money, the Commission representing themselves, the whole world going to change, Amazon and the hospital coming, former Commissioners Soukup and Commissioner Alcantara, the Commission not wanting to represent the people, the City Manager falsely arresting people, the City Manager using the VCSO (Volusia County Sheriff's Office), and that the Mayor's problem is right there, pointing up at the dais. Doug MacDonald, 1494 Surrey Run Court, Deltona, spoke about not being concerned about the contract, knowing that City Attorney well, he has and still does support Ms. Shang, that the Commission acted properly when it had to, Ms. Shang's many mistakes that were of a personal nature involving ethics and character, the City did not suffer any economic loss because of her decisions, the City being better off for having her, that he hopes the next City Manager can overcome the chaos and bitterness from the community, he is sure the behavior of the residents tonight will continue and he told the Commission to keep up the good work. Brandy White, 2689 Chalmer Street, Deltona, spoke about reading the contract which reads "it terminates" her employment and not the Commission, it does not say if the Commission agrees, she questioned whether any of the Commission read the contract, the culture has changed, the culture under former Mayor Masiarczyk, Deltona is saying no more and not Deltona, the Commissioners taking an oath of officer to represent their constituents in their districts, a poll she did for district 3, 4, 6 on whether their Commissioner represented the majority of the district and the constituents not agreeing with their Commissioner, that the residents direct the Commission and not the other way around, things needing to change, not wanting to bring her trash can anymore, would like to help like she did in the beginning, that she warned the Commission and they failed, encouraged residents to be involved and stay engaged, if the Commission is not following the majority there is proof and she again encouraged the residents to email their representatives. Lelia, spoke about comments not directed toward Commissioner King, that she came before the Commission three years ago regarding trash rules and the punishment that followed, a Commissioner stating at the meeting "if you do not like it move", "you people", the lies that have been uncovered and the wrong doing, the contempt the Commission has for the residents, somewhere the Commission got the idea they were City leaders and they are City employees, the residents are the leaders, to work in the best interest of the employer who are the residents, that the trust has been lost, there is a long road ahead of the City, to bring the Deltona that the residents deserve or recuse yourself if not, needing Commissioners that will listen to the residents and the Commission proving it is not them. Christina Larsen, spoke about warning future cities of Ms. Shang when she tries to gain City of Deltona Page 5 Printed on 2/26/2020 Special City Commission Meeting Minutes January 28, 2020 employment but, Brandy White has been trying to warn the Commission for years now and barely any of the Commission listened. Brian Soukup, 225 Blue Crystal Drive, DeLand, clarified Commissioner King's comment regarding guaranteed raises when Ms. Shang signed the contract, that former Commissioner Diane Smith and himself both realized the contract was out of wack and argued against it, that Ms. Shang was the Deputy City Manager of Transportation not a City Manager, the Mayor and former City Attorney Becky Vose deciding to give Ms. Shang $150,000 and a guaranteed two raises which would take her to $175,000 since that was what she was making in El Paso, Texas, to give herself a raise every year is theft/stealing, there being two current Commissioners that voted for everything Ms. Shang is about to get, City Attorney Vose being very clear she was going to front end the contract with as much sick and vacation time as she could, that he told the Commission they needed to know numbers and to not agree to anything without seeing the numbers, if he is right the City will be giving her an excess of $300,000, when he left the City was paying her $60,000 just in her retirement, her salary being $196,000 and at 4 1/2 years she will walk away with a $1.5 million or more, the average Deltona household income being less than $45,000 a year, former Commissioner Alcantara and himself tried for years to get rid of Ms. Shang, in 2013 former Commissioner Lowry asked him to run, he questioned if he could make a difference and he was in over his head, a year into his term Ms. Shang lied to his face and when he called her out on it he was bombarded by different groups because he started to expose what she was doing, he sat with both the FBI (Federal Bureau of Investigation) and FDLE (Florida Department of Law Enforcement) and with everything that was brought forward he still could not get rid of her, to give Ms. Shang one red cent is a bad deal, Steve Narvaez being an award winning IT (Information Technology) Director who was terminated and had his sick and vacation held from him, Mr. Narvaez sued the City which cost the City more money and he asked that the City not pay her another red cent. Patricia Gibson, 230 Courtland Blvd., Deltona, spoke about attending the recent workshop meeting and the Commission talking for an hour and a half on how to spend $15,000, the Commission deciding in 30 minutes to give the City Manager $300,000, Ms. Shang giving herself a raise is theft and a violation of her probation, she questioned why the Commission would give Ms. Shang a "golden parachute", that Ms. Shang belittled the deputies which Sheriff Chitwood spoke about at the recent workshop, she does not approve of the severance package because Ms. Shang does not deserve it and she suggested putting the money back into the City instead, having to pay for the The Center which is not making what was promised, the homeless in the City and that the $300,000 could go along way to help them, the money could be used to renovate buildings for the homeless or for after school programs, she asked the Commission to do the right thing and put the money into the community and to terminate Ms. Shang for cause. Mayor Herzberg closed public comments. Commissioner King requested the payout and he asked if anyone knew what that was. From what he understood she gets all of her sick and vacation time and she has not taken City of Deltona Page 6 Printed on 2/26/2020 Special City Commission Meeting Minutes January 28, 2020 any sick or vacation time since she has been here. Plus 20 weeks of her salary and he asked if she gets anything else. He asked if it included health care and Mayor Herzberg replied everything is spelled out in the contract. Commissioner King asked if she still gets her transportation money every month and Mayor Herzberg replied no. Mayor Herzberg asked City Attorney Fowler if he had any comment on what the total payout is for Ms. Shang and City Attorney Fowler replied Finance Director Camille Hooper has done the calculations on that or at least she was working on them when he last spoke with her but, they are what they are and the Commission cannot change them. The contract is what the contract is and like it or not the City is stuck with it. Commissioner Bradford stated that everyone wants the Commission to terminate Ms. Shang but, even if she was terminated she still gets this package. It is according to the contract which she did not sign and if she was terminated with cause there has to be a vote of five to two. Mayor Herzberg stated the vote of five to two is in the City Charter which is what a termination requires. The language is in the City Charter which was approved by the residents of the City of Deltona. The City Charter did not have that language in it initially, there was a charter review committee that approved the language which was then voted on by the residents and passed to require a supermajority to terminate a Charter Officer. This is not up for discussion tonight. Whether it is a termination with or without cause it needs a supermajority vote of five to two and as of last Monday the vote was a simple majority a vote of four to three. Commissioner Bradford stated when she did her calculations for 20 weeks just the pay calculation is about $75,768, $94,710 based on five weeks a year vacation, that does not include sick time and she does not know what is being put into her insurance. She does not know what any of the other numbers are and she has asked for those numbers but, as advised per the City Attorney the Commission has to honor whatever is in the contract. Staff will be getting the Commission the numbers as soon as everything is calculated. Whether Ms. Shang is terminated or resigns she receives the terms as laid out in her contract and she does not like it any more than the residents do but, we have to move the City forward. The most critical thing is to remove the toxic atmosphere from staff and remove the residents not having confidence in the Commission any more. The decision the Commission is making is not an easy decision and this is being done for the residents. The decision is being done to take the City back, start a new era, enjoy the 25th Anniversary and end 2020 with a bang. She asked to have the vote. Vice Mayor Ramos called the question. The amended motion carried by the following vote: For: 7 - Commissioner Avila-Vazquez, Commissioner Bradford, Commissioner King, Commissioner McFall, Commissioner Nabicht, Vice Mayor Ramos, and Mayor Herzberg Mayor Herzberg asked that City Attorney Fowler sees that Ms. Shang signs the resignation City of Deltona Page 7 Printed on 2/26/2020 Special City Commission Meeting Minutes January 28, 2020 letter with the last paragraph removed minus the last sentence. Motion by Vice Mayor Ramos, seconded by Commissioner Avila-Vazquez, to move the Deputy City Manager Dr. Marc-Antonie Cooper as the Interim City Manager and that Mayor Herzberg and Finance Director Camille Cooper have a meeting with Dr. Cooper as it relates to compensation. Commissioner Bradford stated she is bringing this up because some other cities have gone through this and they advised to have a discussion on the Interim City Manager, what authorities he has because a lot of times a Commission will give Interim City Managers the authority if staff messes up to terminate them. Others have said no, if staff messes it has to go before the Commission and that causes a lot of problems for that individual because staff seems to take advantage of it. Some of the suggestions is to make sure that the Commission covers what authority Dr. Cooper will have, that he has authority and that the Commission is not taking anything away from him that is going to be allowing him to properly run the City. Mayor Herzberg asked that Vice Mayor Ramos amend his motion to include the concerns of Commissioner Bradford. Commissioner Avila-Vazquez replied she is confused on what is being asked because if the Commission is asking Dr. Cooper to step in as Interim City Manager then he is at that point the CIty Manager so what changes under the City Manager's job description. She asked if there was a different job description . Commissioner Bradford stated she is just telling the Commission what other cities went through recently, there was different policies and procedures but, she does not know if Deltona has any and to just go over those so Dr. Cooper does not have a hard time . Commissioner Nabicht asked if the City Charter clearly specifies the duties of the City Manager and the duties of the Commission. City Attorney Fowler replied that does not mean the Commission cannot discuss possible changes on the Interim City Manager or for that matter possible changes to the City Charter itself but, in the mean time the City needs someone at the ship with his hands on the wheel. Commissioner Nabicht stated in terms of the Interim City Manager's powers the City Charter speaks of clear separation between the Commission and City Manager form of government. The City Manager whether an Interim or permanent directs the employees and hires and fires, not the Commission. Mayor Herzberg asked if Vice Mayor Ramos wanted to clarify his motion and Vice Mayor Ramos replied he does not know that he has to make any clarification because he believes the City Charter speaks to that. He thinks if the Commission passes and agrees with the motion then the Commission expects Dr. Marc-Antonie Cooper to act as a City Manager and have the responsibilities of a City Manager, he thinks his motion was clear. Mayor Herzberg opened public comments. City of Deltona Page 8 Printed on 2/26/2020 Special City Commission Meeting Minutes January 28, 2020 Brandy White, 2689 Chalmer Street, Deltona, asked for transparency is the compensation package going to come back before the Commission to be discussed. Richard Bellach, 1665 South Acadian Drive, Deltona, spoke about all the chitter-chatter back and forth sound like a bunch of chickens in the chicken yard and Jane Shang runs away with a pot of gold. Mayor Herzberg closed public comments. The motion carried by the following vote: For: 7 - Commissioner Avila-Vazquez, Commissioner Bradford, Commissioner King, Commissioner McFall, Commissioner Nabicht, Vice Mayor Ramos, and Mayor Herzberg Mayor Herzberg stated the City has the resignation and an Interim City Manager and she thanked everyone for coming out and participating this evening. She invited everyone to the 25th Anniversary Community Celebration tomorrow evening. Mayor Herzberg asked Interim City Manager Dr. Cooper place an item on Monday's agenda for discussion of how the City moves forward in terms of looking at budgetary items, bringing the Commission up to speed on projects and so forth and the Commission concurred. 5. ADJOURNMENT: There being no further business, the meeting adjourned at 6:38 p.m. ______________________________ Heidi K. Herzberg, MAYOR ATTEST: ________________________________ Joyce Raftery, CMC, MMC, CITY CLERK City of Deltona Page 9 Printed on 2/26/2020