City manager evaluations, updates on the Garlic Fest & Delray’s ongoing city attorney search

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Evaluating Ahnell

Delray Beach City Manager Don Cooper must envy his counterpart in Boca Raton, Leif Ahnell.

There’s Boca Raton’s tax base, of course. It’s the highest in Palm Beach County, and it helped Ahnell get Boca through the Great Recession far more easily than other cities. Mostly, though, Cooper would envy the status Ahnell holds with the city council after 17 years.

Last month, the Delray Beach City Commission held a formal, public evaluation of Cooper, who had been on the job for about 17 months. From a managerial standpoint, it was like having a checkup by a team of doctors—not all of them friendly—before an audience. The commission gave Cooper a 10 percent raise, but only after expressing collective frustration at the pace of change.

According to a Boca Raton spokeswoman, Ahnell’s last formal evaluation came in 2007. His employment agreement calls for an evaluation each June but doesn’t specify that the council evaluate Ahnell in public.

This year, however, the council didn’t evaluate Ahnell at all, even though the agreement states that the council “shall review and evaluate” the manager’s performance annually at this time. Mayor Susan Haynie confirmed Monday that “we have not evaluated” Ahnell.

In addition, the current amendment to Ahnell’s employment agreement—the 13th since 1999—ends today. Five years ago, with the recession having forced budget cuts, the council didn’t give Ahnell a raise. Instead, the council increased Ahnell’s severance from 12 months to 60 months, practically guaranteeing Ahnell his job. If the council had fired Ahnell in the early months of the agreement for other than an illegal act involving personal gain or a crime of “moral turpitude,” the council would have owed Ahnell a severance of more than $1 million.

The agreement counted down, subtracting an extra month from the severance for each calendar month. As of today, Ahnell is back to a 12-month package of salary and benefits if the council fires him.

If the council failed to evaluate Ahnell on schedule, though, the council also failed to approve a seemingly necessary new amendment to Ahnell’s employment agreement. “We need to take some kind of action,” Haynie said. “We certainly should not ignore it.” Later, after talking to Ahnell, she said the only change is severance, which means there is no need for a new amendment.

The 2011 action was the third time that the council had made it financially difficult to fire Ahnell. In 2005, the council made the severance three years. In 2008, the council made it five years. The 2011 amendment came after Ahnell also had not received a raise in 2010.

Overall, though, Ahnell should have no complaints about his salary. He started in 1999 at $109,800, after the council promoted him from running the city’s management and budget office. Ahnell’s current salary, according to a city spokeswoman, is $240,418, before his pension contribution. In 2001, the council amended his agreement to specify a 7 percent raise over three years. Ahnell kept getting raises at that level until the recession hit. In 2008, it was three percent. In 2009, it was two percent.

Though the council called Ahnell’s performance in 2010 and 2011 “outstanding,” the public usually hears few details about council members’ opinions of the manager. Council members based those 2010 and 2011 ratings almost entirely on Ahnell’s work during the recession, and he deserved the praise. This year, though, the public might want to hear the council’s thoughts on how Ahnell has handled negotiations over a lease for a restaurant on the Wildflower property and other council priorities. One can argue that the public deserves to hear.

In an email, Haynie said the council “can choose to conduct a review individually or collectively at any time.” She added, “Quarterly review of action on [council] goals is an opportunity to assess Leif’s effectiveness in managing the goals.”

The employment agreement, however, specifies an evaluation in June. If the council doesn’t agree, perhaps the council should change the agreement.

And Frieser

The current employment agreement with Boca Raton City Attorney Diana Grub Frieser also ends today. As with Ahnell, the council in 2011 approved a five-year severance that counted down. As with Ahnell, the council had amended Frieser’s agreement every year until 2011.

As with Ahnell, the council hired Frieser in 1999, roughly a month after hiring the manager. As with Ahnell, the council has treated Frieser well. Her starting salary was $107,500. She got a 20 percent raise after one year, and now makes $235,383, according to a city spokeswoman. As with Ahnell, the council periodically has bumped up Frieser’s severance. The two compensation tracks have been nearly identical.

And as with Ahnell, Frieser’s employment agreement states that the council “shall review and evaluate” the city attorney, though the agreement doesn’t specify a month. Since Frieser was hired in June 1999, however, June or July would be the appropriate time.

This year, a thorough evaluation would include a review of Frieser’s counsel during last year’s Chabad East Boca debate. The city just lost a legal challenge to the council’s approval of the project. The plaintiffs argued successfully that Boca Raton doesn’t allow museums in areas zoned B-1, like the chabad site on East Palmetto Park Road. The chabad wants to include an exhibit hall.

Perhaps Frieser’s work on that contentious issue was sound. Either way, as with Ahnell, the public might like to hear what the council thinks about that and everything else about the city attorney’s performance.

Garlic Fest update

There’s an update from last week’s Delray Beach City Commission debate on downtown special events in general and Garlic Fest in particular.

With Mayor Carey Glickstein absent, the commission tied 2-2 on Garlic Fest’s appeal to hold its event next February. City staff had denied the date, based on the new special events policy that allows just one “major” downtown event per month. The tennis center hosts Delray’s annual pro tennis tournament in February.

The issue was whether the 2-2 vote killed the appeal, since it failed to get a majority. A second motion to grant the appeal with conditions also failed, 2-2, after which the commission voted to defer the matter until July 5.

In an email to commissioners, outgoing City Attorney Noel Pfeffer cited the commission’s November 2013 charter change on tie votes to say that “no action of the commission shall be valid or binding” unless it receives three votes. If not, “such motion shall be determined to have failed and no action shall be taken by that motion.”

A memo from the city’s legal department stated that the change was modeled on a charter provision in the Broward County city of Weston. A tie vote, the memo said, would mean “that either a new motion can be made in hopes of acquiring” three votes “or if no new motion is made, then it shall be as if no action was taken at all.”

So Pfeffer’s take is that Garlic Fest’s appeal did not fail, and the motion to defer “appears to be in order.” If the language stopped after “determined to have failed,” Pfeffer’s opinion might be different. The commission should settle the issue at the next meeting, with Glickstein expected to be there.

The city attorney RFP

As he departed, Pfeffer also sent a request for proposal (RFP) to commissioners for their consideration as they stumble toward a decision on the legal department, beginning with the choice of a city attorney.

To call the proposal open-ended understates it. The city “is willing to consider a range of options in filling this position. . .” Those options include: “a full-time, in-house city attorney” who would “supervise and manage” the office and staff, which includes four other lawyer positions, three of which are filled; “a private law firm to perform all or part” of the work; “individuals employed by a private law firm offering to serve as city attorney and supervise manage and operate” the office; or “any combination of variation” of those options.

Though the RFP arises from the commission’s failure to agree on a successor to Pfeffer after a headhunter recruited applicants, individuals still may apply. The proposal asks that candidates have at least 10 years of experience, with a focus on “municipal and civil law.” The proposal seeks someone who can be “assertive yet respectful in providing concise and sound recommendations” to the commission “while helping to accomplish the goals of the governing body in an innovative and creative way.”

Firms that apply must have an office in Palm Beach County or must open one within 120 days after being hired. Among other things, firms also must agree not to represent any client who is suing the city and must have the commission review any current clients involved in any “adversarial” action against Delray Beach. The firm must show how it “intends to address and/or accommodate” current employees in the legal department.

The commission can revise the proposal, working through Interim City Attorney Janice Rustin. The commission will set dates for when candidates can apply. The commission has set no deadline for a decision.

Delray’s roster of lawsuits

Pfeffer included with that proposal a list of current and potential lawsuits against Delray Beach. Twenty-six cases are in litigation, and the city has received 69 claims that have not resulted in litigation.

Most of the items are routine and minor: slip and falls on city property, collisions involving city vehicles, failure to maintain streets and lighting. One is definitely major: the Atlantic Crossing case, set for trial in October. The most unusual is from a man who claims that he suffered injuries at a city-sponsored “sumo wrestling” event.

Whatever their individual merit, the cases collectively show how important it is for the commission to get the choice right. Doing so could depend on whether the commissioners remain “adversarial” toward each other.

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Randy Schultz, a native of Hartford, Connecticut, has been a South Florida journalist since 1974. He worked for The Miami Herald until 1976 and for The Palm Beach Post from 1976 until 2014, where he served as managing editor and editorial page editor. Since 2014, he has written a politics blog, commentaries and other articles for Boca magazine. His writing has earned first-place awards from the Florida Magazine Association and the Florida Society of Newspaper Editors. Randy has lived in Boca Raton with his wife, Shelley Huff-Schultz, since 1985. His son, daughter-in-law and their three children also live in Boca Raton.