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2001.12.10_LSC_Minutes_RegularTOWN OF HIGHLAND BEACH LIBRARY STUDY COMMITTEE MINUTES December 10, 2001 9:30 a.m. Chairman Leonard D. Bell called the first meeting of the Library Study Committee to order at 9:30 a.m. Also in attendance were members James Niehoff, Neil Burd and Joanne Freeman. Michael Ferrara was absent. Mayor Thomas J. Reid, Library Director Maria Suarez and Town Manager Ben Saag were present as advisory members. Mayor Reid offered reasons for the need of an expanded library in that the growth of the Town and library membership has exceeded the size of the library; that the shelving does not allow enough space for the continual growth of books, videos, etc.; that a new facility would enhance the ambiance of the Town; that the new facility could offer amenities such as a meeting room for 75-100 people, an archeological room, reception area, reading area. Mayor also noted that the current library space could be used to expand existing Town Hall office space. He also stated that the library would be of no cost to the taxpayers due to funds from future development in Town. Town Manager Ben Saag presented an overview of the development of a library, in that approximately three years ago there was discussion of developing the land behind Town Hall as a passive park. The Town decided to build the new reverse osmosis water plant behind Town Hall, and sell the Boca Raton land (where current plant and well are, and is approximately 6-8 acres) to offset the cost of a new plant. It was then realized that the land would be too small for a park, and the possibility of a new library was discussed. Mr. Saag noted that in order for the Town to apply for a grant, a conceptual plan was created which showed a 2-story building of approximately 10,000 sq.ft. He noted that a grant may be given anywhere from $0 - $500,000. There was discussion as to the extent the Town can or cannot advocate a new facility, and Mr. Saag was asked to speak to Attorney Sliney and have him put something in writing as to the legality of same. The use of Foundation grants was asked, of which Mr. Saag answered that only State Grants had been explored. General discussion showed that the Committee felt the Town will have to do a good selling job to convince residents to support a new facility, and that the people who may object will probably be most who do not use the library. Ultimately it was hoped that when residents learn that the project will not "cost them anything", their support will come forth. Library Study Committee December 10, 2001 Page 2 of 2 The distribution of a brochure was discussed, with Mr. Saag suggesting that the Committee should designate himself and one member who can oversee the professional design and distribution of same. He noted that he would like to obtain a professional consultant who understands the working of a library brochure relating to referendums and elections. Mr. Saag also suggested that somewhere in the brochure, the cost savings for a new library be compared to new development in Town. A catch phrase that may be effective might be "A Library That Builds on the Past, and Plans for the Future for Highland Beach that Remembers the History and Modernizes for the Future".. It is important for residents to know that the feeling of a small town library will remain, but at the same time be modernized and be able to adapt and accept the needs of the future of Highland Beach and future generations. After the committee examined the conceptual plans of the library, it was suggested that a one-story structure would better suit the needs of the residents. Mr. Saag will meet with Richard Brooks to rework a new conceptual plan, of which will be presented to the committee at the next meeting. Two meetings will be set up in the 2nd and 3rd weeks in January. A letter was discussed to be sent to prior library donors so they are made aware of the possible changes and to note their former contributions are still recognized. With no further business to come before the Board, meeting was adjourned at 11:20 a.m. Ap roved eonard D. Bell, Ch. Thomas E. Sliney Partner Direct Dial: 561.862.4152 tsliney@hodgsonruss.com VIA HAND DELIVERY Mr. Ben Saag, Town Manager The Town of Highland Beach 3614 South Ocean Blvd. Highland Beach, Florida 33487 Dear Ben: Re: Library Bond Issue January 2, 2002 HodgsonRuss A T T 0 R N E Y S • L L P Please find enclosed Jarrett Cooper's Memorandum of Law with respect to the Town's official position on the Library Bond Issue. Per our previous conversation, Jarrett's research supports my previous oral opinion to you in December 2001 that the Town should not take an official position with respect to supporting the Library Bond Issue. Rather, the Town should publish only an informational brochure detailing factual matters educating the public concerning the Library Bond Issue. Please review the enclosed Memorandum of Law, and if you have any questions, please do not hesitate to contact me. Very truly yours, HODGSON RUSS LLP THOMAS E. SLINEY TES:sls Enclosure 1801 North Military Trail • Suite 200 • Boca Raton, Florida 33431 • Telephone: 561-394-0500 • Facsimile: 561-394-3862 Albany • Buffalo • Gloversville • JFK International Airport • New York • Newark • Palm Beach Gardens • Toronto • www.hodgsonruss.com A Registered Limited Liability Partnership including Professional Associations MEMORANDUM FROM: Jarrett Cooper TO: Thomas E. Sliney RE: The Town of Highland Beach DATE: December 27, 2001 Tom: 1---14 HoftsonRuss A T T O R N E Y S • L L P You have asked whether the Town of Highland Beach may expend municipal funds to create a pamphlet to support a bond issue for the construction of a Town library. A review of Florida case law and Attorney General opinions indicates that the Town should not, in its official capacity, support the issue. In Florida Attorney General opinion 078-41, the Attorney General was asked "May a municipal governing body expend municipal funds to support a bond issue for acquisition and development of parks and recreation areas within the city?" The Attorney General stated that "My research discloses no statutory provision which precludes a municipality from appropriating and expending funds in the manner contemplated." The Attorney General noted, however, that "The question of whether such an expenditure is valid as a public municipal purpose is ultimately one for judicial determination, although the legislative determination will be given due weight." In Palm Beach County v. Hudspeth, 540 So.2d 147 (Fla 41h DCA 1989), the Fourth District Court of Appeal (in whose jurisdiction the Town of Highland Beach resides) overruled the attorney general', and explicitly held that a county could not support a bond issue In Hudspeth, the court reviewed the Attorney General's opinions, including the one cited above, and stated that "opinions of the Attorney General are considered persuasive, but do not constitute binding authority on the courts of Florida." Instead, the court held that questioned expenditures must be tested on a case by case basis. "[T]he inquiry is one for the judicial branch and the issue to be resolved is whether the Footnotes continued on next page. -2- in a partisan manner. In making its ruling, the Court found little guidance in Florida law for the application of this standard, and turned to a foreign jurisdiction for enlightenment. In Citizens to Protect Public Funds v. the Board of Education, 13 N.J. 172, 98 A.2d 673 (1953), the New Jersey Supreme Court upheld the dismissal of a suit for declaratory judgment. At issue was whether a school bond election was invalid and whether use of public funds to advocate a favorable vote on the bond issue was illegal. Writing for the Court was Justice William J. Brennan, Jr. (later Supreme Court Justice) who said that the expenditures for booklets promoting passage of the issue were illegal and beyond the Board's powers. The New Jersey Court found the issue important enough to comment as follows: The Board made use of public funds to advocate one side only of the controversial question without affording the dissenters the opportunity by means of that financed medium to present their side, and thus imperiled the propriety of the entire expenditure. The public funds entrusted to the Board belong equally to the proponents and opponents of the proposition, and the use of the funds to finance not the presentation of facts merely but also arguments to persuade the voters that only one side has merit, give the dissenters just cause for complaint. In its decision, the Fourth District Court of Appeal also referred to the seminal California case dealing with expenditures of public funds on ballot measures, Mines v. Del Valle, 201 Cal. 273, 257 p.530 (1927), overruled in part on other grounds, Stanson v. Mott, 17 Ca1.3d 206, 551 P.2d 1, 130 Cal.Rptr. 697 (1976). In that case, the court found that the use of public funds to further a bond issue was illegal unless the power to do so had been given to the governmental agency expending the funds in clear, unequivocal language. The Mines Court found that such power had not been given to the Board. Footnotes continued from previous page. particular expenditure offends the Constitution of the State of Florida, laws of the State of Florida, or fundamental concepts of justice and fair play." -3- It must be conceded that the electors of said city opposing said bond issue had an equal right to an interest in the funds in said power fund as those who favored said bonds. To use said public funds to advocate the adoption of a proposition which was opposed by a large number of said electors would be manifestly unfair and unjust to the rights of said last named electors, and the action of the Board of Public Service Commissioners in so doing cannot be sustained, unless the power to do so is given to said Board in clear unmistakable language. 257 P. at 537. In its holding, the Fourth District Court of Appeal relied upon the above referenced cases, and held that, [w]hile the county not only may but should allocate tax dollars to educate the electorate on the purpose and essential ramifications of referendum items, it must do so fairly and impartially. Expenditures for that purpose may properly be found in the public interest. It is never in the public interest, however, to pick up the gauntlet and enter the frey. The funds collected from taxpayers theoretically belong to proponents and opponents of county action alike. To favor one side of any such issue by expending funds obtained from those who do not favor that issue turns government on its head and is the antithesis of the democratic process ... (emphasis added). if government, with its relatively vast financial resources, access to the media and technical know-how, undertakes a campaign to favor or oppose a measure placed on the ballot, then by doing so, government undercuts the very fabric which the Constitution weaves to prevent government from stifling the voice of the people. An election which takes place in the shadow of omniscient government is a mockery -- an exercise in futility -- and therefore a sham. The appropriate function of government in connection with an issue placed before the electorate is to enlighten, NOT to proselytize. (emphasis in original). Although the Hudspeth case has never been overruled, the Florida Supreme Court, in People Against Tax Revenue Mismanagement, Inc. v. County of Leon, 583 So.2d 1378 (Fla. 1991), considered the use of public funds and public resources to mount an informational campaign regarding a referendum in Leon County. In the campaign, the agency advocated that an optional tax was needed to remedy problems at the County jail and meet local infrastructure -4- needs such as the building of a new or widen roadways. At the proceeding below, the Plaintiff's counsel argued that such acts were improper because they violated the "neutral forum" of the election. The Supreme Court stated that, ...such a position, however, is tantamount to saying that governmental officials may never use their offices to express an opinion about the best interests of the community simply because the matter is open to debate. A rule to that effect would render government feckless. One duty of a democratic government is to lead the people to make informed choices through fair persuasion... In much the same sense, local governments are not bound to keep silent in the face of a controversial vote that will have profound consequences for the community. Leaders have both a duty and a right to say which course of action they think best, and to make fair use of their offices for that purpose. The people will elect governmental leaders precisely for this purpose. While we agree with the Plaintiffs that such acts must not be abusive or fraudulent, we find nothing in the record to show that the limit was crossed here. This statement by the Florida Supreme Court, although somewhat in controversy with the Fourth District Court's opinion, does not consider a municipality, nor does it consider the placing of a pamphlet in a referendum packet. Given that the Fourth District Court of Appeal has never been overruled on that issue, it is the law of this jurisdiction, and I believe the Town of Highland Beach should not, in its official capacity, issue a pamphlet promoting the bond issue. If you have any questions, please do not hesitate to contact me. FLADOCS96876v1 (22ROOMDOC)