By DOTTY NIST
Walton County citizens charged with alleged code violations will continue to appear before a “jury of their peers” rather than a special magistrate.
This was the outcome of the final hearing on an ordinance that, if approved, would have done away with the Walton County Code Enforcement Board (CEB) and would have required those charged with code violations to go before a special magistrate for a ruling on their cases.
The Special Magistrate Ordinance hearing was in conjunction with the May 26 Walton County Board of County Commissioners (BCC) regular meeting at the Walton County Courthouse.
In existence for approximately 15 years, the CEB is composed of citizens appointed by the BCC. CEB members serve on a volunteer basis.
Some local governments in the state hire and use a special magistrate rather than a code board for hearing of alleged code violations. Special magistrates may be attorneys or retired judges.
At the first BCC hearing on the ordinance on April 28, the commissioners had asked Walton County Attorney Mark Davis to bring back information on options and costs related to the matter.
Code enforcement options
On May 26, Davis told the commissioners that costs for hiring special magistrates “varies pretty wildly,” ranging from about $2,000 to $300 per hour. Code hearings are not always held every month, and they generally run for one to three hours, he continued.
Davis said he had recommended the Special Magistrate Ordinance in order to eliminate the need to hire an attorney when required to represent county staff at code hearings.
Historically most Walton County attorneys have interpreted county code to say that the county attorney cannot represent both CEB members and county staff. On April 28, Davis had acknowledged that hiring an attorney to represent and advise CEB members would be an alternative to utilizing a special magistrate. This would allow Davis to represent county staff at CEB hearings when necessary.
Commissioners discuss proposal
“I think this is a mistake,” District 5 Commissioner Cindy Meadows said of the proposed ordinance. She spoke of the challenge of finding someone to serve as special magistrate who did not have a conflict of interest. Meadows said that eliminating the CEB would “send a message” that the BCC does not want citizens boards.
People appearing before a special magistrate, she continued, would feel the need to hire an attorney to represent them, rather than appearing on their own before an experienced person who could “gavel them down.”
District 4 Commissioners Sara Comander responded that the possibility of bias would exist whether the CEB continued to serve or the county went to a special magistrate. If a special magistrate is used, it would have to be a person with no ties to the county government, she noted. She motioned for approval of the ordinance for discussion, and the motion was seconded by District 1 Commissioner Bill Chapman.
Public comment on the ordinance
As public comment was taken, sentiment was overwhelmingly against the ordinance.
“These are a bad idea,” said Matt Gaetz, state representative and local attorney, speaking of special magistrates used in place of appointed boards by local governments.
Gaetz referenced a 2014 auditor general’s report on special magistrates in the context of use for value adjustment board decisions. The report indicated that special magistrates were “very good for the government and very bad for the citizens,” he noted.
Special magistrates who rule on behalf of citizens rather than the government tend to “lose their jobs,” Gaetz reported. He told the commissioners that, as part of one of his committee assignments in the legislature, he would be looking at getting the special magistrate option eliminated for local governments.
Gaetz urged the commissioners to “keep the power in the hands of the people” rather than putting it into the hands of someone who is hired by government.
Dana Matthews a county resident and local attorney, was the only person to speak in favor of the ordinance.
Matthews argued that it is very difficult for CEB members to understand the rules that they have to follow when a person is charged with a code violation. It is possible to appeal a decision of a special magistrate, he pointed out.
Matthews noted that the city of Destin recently went to a special magistrate for code enforcement. He told the commissioners that in his opinion they would save money by doing so also, rather than having to use two attorneys for CEB hearings. Matthews suggested that the county try using a special magistrate for a year and then see if they wanted to go back to a CEB.
Composition of the code board
Miramar Beach resident Mike Flynt expressed agreement with Gaetz’ comments and also brought up the matter of the composition of the CEB and the expertises represented by the board members.
Per county code, regular membership of the CEB is required to include, at a minimum, one architect, one business person, one engineer, one general contractor, one subcontractor, and one realtor.
Flynt asked the commissioners to imagine trying to get that expertise in a special magistrate. Someone with knowledge in all these fields, if they are “out there,” is “making the big bucks,” Flynt argued.
He also pointed out that over the years decisions made by the CEB that have been contested in court have been upheld.
Flynt warned that by going with a special magistrate there would be a risk of putting a “layer of bureaucracy” between the people and their elected officials. “I believe it is more responsive to the community to have an appointed board,” he said.
If the BCC decided to go forward with the ordinance, Flynt urged them to add language stating that the special magistrate should, whenever possible, have expertise in architecture, business, engineering, general contracting and real estate—and that the magistrate not have any relationship with employees of the county commission or county constitutional officers.
Other concerns about the ordinance
“This looks like an instance of more government by and for the government,” charged Miramar Beach resident Don Riley.
Riley said he had recently attended a CEB hearing and had been impressed with the free and frank discussion. The board members had rendered a just decision, he told the commissioners. He called the special ordinance proposal “a significant impediment to justice.”
“Why would you fix something that’s not broken…just go ahead and abandon ship,” Riley said of the ordinance.
CEB Chairman Tom Stein reminded the commissioners of the nearly-unanimous opposition to the ordinance by citizens at the three public meetings at which it had been discussed. He pointed out that the Walton County Planning Commission had also unanimously recommended against the proposal. Stein said he had yet to hear a positive reason to make this change.
Suzanne Harris, who as a representative of Edgewater Beach Owners Association is scheduled to go before the CEB on an alleged white sand protection zone violation, spoke in favor of keeping the CEB. She told the commissioners that she believed that the CEB members would “listen to my side of the story.”
Some people, she added, might say that the BCC should be replaced with a judge.
Davis responded to comments by Harris and some other citizens associating the proposal to eliminate the CEB with a Jan. 15 CEB decision. This was the finding that James and Melanie Nipper were not in violation for operating a sky-diving business. The finding was despite a previous determination by the Walton County planning director that the business was not allowable within the land use area. After the CEB decision, county staff had asked the BCC to appeal the decision in court, but the BCC had declined to do so.
Davis said the proposal for a special magistrate “has nothing to do with recent code enforcement board decisions.”
He acknowledged that his timing in bringing the ordinance had been bad but noted that he had been asked to look at the special magistrate proposal soon after coming on board as county attorney. Davis was hired in summer 2013 after serving as interim county attorney beginning early that year.
District 2 Commissioner Cecilia Jones also recalled that there had been discussions on the special magistrate possibility during her first term (2008-2012 as District 5 commissioner).
“It’s not personalities with me, it’s about improving our system,” she said.
“Perception is reality,” Meadows observed. “This is quicksand that I don’t want to get into,” she said of the proposed ordinance.
Jones countered that she had served on the Value Adjustment Board, which utilizes a special magistrate. “It’s a very fair process,” she said.
Other options discussed, ordinance fails
Additional BCC discussion included the option of having the person charged with a violation choose whether to appear before the CEB or a special magistrate. Davis had previously stated that, according to his research, respondents faced with this choice opt to appear before the CEB.
Davis again mentioned the option of doing an RFQ for an attorney to represent the CEB rather than going with a special magistrate.
Stein commented that for the first 10 years that he served on the code board, the CEB had had its own attorney. “It worked,” he said.
A vote was taken on the previous motion to approve the Special Magistrate Ordinance. The motion failed in a 4-1 vote, with Jones the only commissioner voting in favor, resulting in denial of the ordinance.
There was no action or further discussion at the meeting on obtaining an attorney to represent the CEB.