Did Mount Dora Put Its Fire Chief in Limbo?

Acting/Interim city manager Skip Kerkhof voices his concerns about the legality of his appointment

 

Worries about legal review come again up at September 6 council meeting, adding to concerns about the city’s attorney

Mount Dora is between city managers, and the person who is acting in that role may be lost in legal limbo.

That was the concern raised by acting/interim city manager Skip Kerkhof during his city manager’s update at the September 6 city council meeting.

In a statement, Kerkhof questioned the manner in which he was named to fill in as city manager between the resignation of interim city manager Kim Leinbach and new permanent city manager Robin Hayes.

“When the mayor asked me to accept the role of the interim city manager, I questioned my legal ability to hold both the city manager and the fire chief’s positions,” Kerkhof read from a statement. “I was assured at that time by the mayor and the city manager that this issue had been looked into and they advised they had determined that legally, the police chief couldn’t hold the position, but that the fire chief could. I assumed that was a legal rendering and accepted the interim position.”

At the August 16 council meeting, Mayor Girone had nominated Kerkhof to be named acting city manager for the hiatus. Council unanimously passed the motion and then appointed Deputy Fire Chief Timmons Griner as acting fire chief. Both were to receive salary increases commensurate for their new duties.

Apparently the action had the blessing of city attorney Lonnie Groot. The August monthly bill from Stenstrom, McIntosh, Colbert & Whigham itemizes a half-hour telephone conference on Aug. 1 between William Colbert with Mayor Girone to “review dual office holding matter.”

Kerkhof told council that a citizen had contacted him in the past week and alerted him to a possible violation of the Florida constitution which prohibits dual office holding, attaching a packet of Attorney General opinions on the illegality of dual positions.  By taking the job of acting city manager, he had unknowingly vacated his fire chief’s position which by law states cannot also exist.

Since he believed the city’s offer had approved by the city attorney, Kerkhof reached out to councilman Cal Rolfson (a former city attorney, state’s attorney and deputy attorney general with the state of North Dakota) to try to verify the information he had received, and then contacted two local attorneys for an independent opinion.  They concurred that the city may have violated the law.

“What is clear is that when I accepted the interim city manager’s job, by law I vacated my position of fire chief,” Kerkhof explained. “My immediate reaction was to resign my job as interim city manager and resume my position of fire chief. That presented a problem as again by law I was no longer fire chief. ”

“(However,) the more I thought about it,” he said, “the more I felt two things. One, I had made a commitment to this council, to the citizens to fulfill the duties of the city manager until such time as our new city manager took over. And number two, I didn’t want to leave the council, the city or staff in a lurch handling some of the day to day issues that arise.”

Kerkhof said he was happy to continue but had two concerns.  “Number one, I would like an assurance from council that at the end of my tenure I will be reinstated as fire chief. I’m in the process of looking into break in service problems this has created in reference to my pension. Councilman Rolfson has indicated to me that he will make a motion addressing these concerns.

“My second concern is the apparent lack of legal advice to council when this interim city manager motion was made. I don’t know for a fact that the citizen who sent me this information had any legal training, yet they knew what city council should have known.”

Ed Rowlett (third district) was quick to assure Kerkhof that, “There’s no trouble here, we are behind you one hundred percent.”

Mayor Girone asked William Colbert (sitting in for city attorney Groot, as he has for most of the summer’s council meetings) on his opinion about the issue and whether there was any legal distinction regarding “acting” and “interim” appointments. Colbert responded that he hadn’t done the research—someone else at the firm had—but would look into it.

As he had indicated to Kerkhof, Roflson then introduced a motion that would have council state that when they appointed him interim city manager, they didn’t intent to create any interruption or disruption of his employment or benefits.

“Acting—not interim—city manager,” asserted Girone, as if the distinction mattered legally. Smiling, Rolfson pointed to the nameplate in front of Kerkhof printed with his name and “Interim City Manager.”

Mark Slaby (at-large) opposed the motion, saying that without further opinion from Groot, they didn’t even have enough clarity on whether the law had been violated. “All we have now is the opinion of one council member,” he said, adding that he preferred getting one from the city’s attorney, who “is board-certified in governmental law.”

There wasn’t much support for Rolfson’s motion elsewhere among council, and he ended up tabling it for a later meeting at which the city attorney could fully address the issue.

William Colbert and Mayor Girone talk after the Sept. 6 meeting
William Colbert and Mayor Girone talk after the Sept. 6 meeting

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Kerkhof stated that he had met with Mayor Girone to discuss the offer, and was told that while a police chief can’t be named acting city manager, a fire chief could. Why?

One explanation might be cursory reading. Back when Michael Quinn was city manager and planned to be away for vacation, Police Chief O’Grady was considered to be named acting city manager in Quinn’s absence. Then-city attorney Cliff Shepard had researched the issue and found a Florida Attorney General’s opinion that as a public officer, Police Chief O’Grady could not be appointed acting city manager because it violated the state Constitution’s ban on holding dual positions. Mark Reggentin, whose responsibilities included many also covered by the city manager, instead was considered ex officio (“by virtue of office of”) and naming him acting city manager wouldn’t violate the law. Any potential conflict was further resolved when Reggentin was later named deputy city manager.

The point here is that the fire chief is a public officer just as much as the police chief, and his responsibilities do not encompass in any way the city manager’s (thus qualifying as ex officio) any more than a police chief’s would. If William Colbert (or Lonnie Groot, or someone else at Stenstrom) researched the issue, how extensively did they research that point, and how was a differing opinion reached?  That answer has yet to offered.

None of this has yet been legally ascertained one way or the other, but for the time being, that can’t be of much solace to interim/acting city manager Skip Kerkhof. He is the one who may be without any job on September 26 when Robin Hayes sets up in the city manager’s office.

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Cal Rolfson and city attorney Groot at a council meeting last spring
Cal Rolfson and city attorney Groot at a council meeting last spring

The city attorney had already been a topic of discussion at council on September 6 with Cal Rolfson’s separate proposal to adjust billings from Groot’s firm from the quarter hour to the tenth-of-an-hour. According to Rolfson’s research, it is customary for city attorneys to bill at the tenth-of-an-hour rate. By changing the billing accordingly, Rolfson estimated the city could save somewhere between $3,000 and $6,000 dollars a year.

“This has nothing to do with the quality of legal services,” he said. “It is all about money.”

However, Mark Slaby disagreed with the proposal, saying that in his research “it’s not always a savings” under the reduced billing increment, pointing out that in 12 to 15 minute increments the reverse actually was true. He also said that Groot provides some work gratis, and that by re-contracting at the narrower increment “we take away their ability to be gracious.”

Attached to the agenda was a letter from Stenstrom, McIntosh, Colbert & Wigham, P.A., signed by William Colbert, stating that they charged all their municipal government clients at the quarter-hour rate. Also, he said their base rate of $155 per hour (for the first 20 hours) was much more competitive than the former firm’s rate. He estimated potential savings to Mount Dora of $40,000 in the first year.

Rolfson said that he had met with Groot in his office at Stenstrom several months ago to discuss his idea to change the billing increment, so it should be no surprise to them what he was proposing.  His numbers were never challenged and no counter-proposals were offered. Regarding the savings proposed by Colbert due to the lower hourly rate, Rolfson said it was “an apples to oranges comparison” since only the cost was compared and did not consider the nature of projects Cliff Shepard had been working on.

“I’ve done the math,” Rolfson concluded, “and I’m confident of the savings to the city.”

However, council was unsupportive and sided with their city attorney. Laurie Tillett (first district) agreed with Slaby’s fear that by decreasing the hourly increment for billing, the gratis work Groot currently provides might go away. “Our bills will go up,” she said. Mayor Girone said that the agreement had been reviewed by the former city attorney and he hadn’t any objections to it. (It should be noted that the hourly increment isn’t specified in that agreement, nor was the city attorney asked to review the rates or fees, simply the contract’s terms.)

Council voted 5-2 to reject Rolfson’s proposal.

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Also at the September 6 meeting, Mark Slaby had complained that staff were not responding to city attorney requests for information in a timely enough manner, saying he thought there should be a quicker staff response – but no discussion of why the attorney was requesting information directly from staff occurred. He also wanted council copied on all of city attorney requests.

Kerkhof said he thought involving council in all of the city attorney’s emails was burdensome on staff, and Rolfson complained that the city attorney was becoming an eighth council member.

Since he began in March, Lonnie Groot has been busy looking into many aspects of Mount Dora government. One of his first actions was a lengthy analysis of the powers of council and mayor as defined by the city charter. It is not known who tasked Groot with the research, as it can be directed by the Mayor or any council member; however, Mark Slaby has made numerous comments at council advocating stronger council powers, complaining on one occasion that council had ceded too much power to staff and on another saying that the council and not the city manager should set the agenda.

Groot has also performed legal reviews on making the city clerk a charter position (appointed by council not the city manager), election guidelines, a code of employee conduct and review of purchasing procedures – even reviewing the public comment card blanks used at city meetings.

With so much inquiry into day-to-day matters of city government—especially at a time when there are so many unfilled vacancies in City Hall—it’s not surprising that tensions might arise between staff and the new city attorney.

Interim city manager Kim Leinbach was irked by the amount of staff scrutiny by Groot, to the point of asking at the June 21 council meeting for “role clarification” of his administrative and Groot’s legal functions. At issue then were a number of contracts for Public Works projects in advance of the Wekiva Parkway; since work orders related to existing contracts, he didn’t see the need for more legal involvement. At that meeting Slaby continually stressed the need for greater legal review of the purchasing process, and he has consistently asked about the same in subsequent council meetings when Public Works contract items come up.

Leinbach may have had enough, cutting back to a 4-day work week over the summer and resigning on August 26, a month before new city manager Robin Hayes is to start. He had said he was leaving early to run for mayor of the Temple Terrace, but a September 2 news release from the city of Temple Terrace website says Leinbach is running unopposed for mayor.

Without Leinbach to intercede as city manager, tensions between some staff and the city attorney have apparently boiled to crisis point. The Citizen has received word that a city employee is in the process of filing a hostile workplace complaint related directly to Groot. Megan Glass, the city’s information officer, was asked about the complaint and how it is being handled, and she replied that the city couldn’t make any comment at this time due to an ongoing investigation.

Skip Kerkhof with a fire crew before he became acting city manager
Skip Kerkhof with a fire crew before he became acting city manager

In his brief weeks standing in as city manager, Skip Kerkhof first had to deal with a hurricane threat; fortunately for Mount Dora, it blew to the north, causing little local damage and no utility outages. As the city’s fire chief and keeper of the city’s emergency management plan, Kerkhof was well prepared for that event; but the next storm he faced as “interim” or “acting” city manager placed him up a creek without a much of city paddle. As of the end of Tuesday night, council had not acted to help him.

In a few weeks, the fire chief will be out of a city manager’s job, and it may not be legal for him to return to his old job, and there will be yet another vacancy in City Hall.

Let’s hope that there aren’t more staff vacancies in the making due to what legal review has meant in the City of Mount Dora since March.

David Cohea, Writer (david@mountdoracitzen.com)