Special magistrate judge position reopened after commissioner violates “cone of silence”

 

BY PRU SOWERS

KONK LIFE STAFF WRITER

 

Another strange twist in what has become a controversial reappointment of Key West Special Magistrate Jeff Overby took place April 7, when city commissioners were advised to rescind their vote last month vote reappointing Overby and reopen the position to any interested applicants.

 

 

City Attorney Shawn Smith told the commission that Commissioner Teri Johnston inadvertently violated the city’s “cone of silence” ordinance when she contacted Overby by telephone before his appearance before the commission on March 17, when it voted 4-3 to reappoint him as special magistrate. Johnston had called Overby asking for information on how many of his rulings had been appealed during his almost 17-year tenure as the city’s first-ever code compliance hearing judge. Under the cone of silence ordinance, no direct communication can take place between commissioners and a job applicant or contractor if the commissioners are the deciding body on whether to hire that person or business.

 

 

Johnston ultimately voted to reappoint Overby. And she had revealed earlier in that public meeting that she contacted him beforehand, possibly in violation of the cone of silence. That lead to a complaint being filed on March 25 with the city attorney’s office by an unidentified woman and Smith followed up with an investigation.

 

 

“It is clear to me there was absolutely no malicious intent or desire to violate in any way. There was a need for additional information that was not provided in the staff report,” Smith said at the April 7 meeting. “Having met with the commissioner involved, I believe there is concurrence that we should start with a blank slate and start the process over.”

 

 

Commissioners will need to vote to reopen the special magistrate appointment process and could not do so at the April 7 meeting because a resolution had not been drawn up. Smith said he will draft a resolution for consideration, including appointing an independent selection committee, at their next meeting on May 5.

 

 

Until then – and until a special magistrate is formally selected – the monthly code compliance hearings in Old City Hall will be presided over by Donald Yates, alternate magistrate. Overby had not signed a contract with the city before leaving on vacation last month. As a result, the March 19 code compliance hearing was cancelled by city staff. The next hearing is set for April 29.

 

 

“He [Yates] has been approved some years past by the commission to be a substitute special magistrate. Don has done it before and he is certainly capable,” said City Manager Jim Scholl.

The original intent of the cone of silence ordinance, enacted in 2013, was to stop any lobbying of commissioners by job candidates. But the ordinance goes both ways, keeping commissioners from seeking information from the candidates, as well. And City Hall staff was also apparently confused with the first-ever special magistrate reappointment process, believing they could not contact the three candidates and report back to commissioners. As a result, unlike other Requests for Proposals (RFPs), there was no staff recommendation on any of the three candidates.

 

 

“Every RFP that we have has a staff recommendation and this one did not,” Johnston said. “It [cone of silence] is not a very well understood ordinance. The unintended consequence is it is withholding information from the city commission.”

 

 

“There was a lack of education among staff on the applicability of the particular cone of silence, which means I need to do a better job at educating staff,” Smith said.

 

 

Overby was first appointed to the newly-created special magistrate job in 1998. He has been reappointed ever since without going through an application process. But for unexplained reasons, city officials decided to open the position to other applicants when Overby’s contract came up for renewal last month. Two other candidates applied, local attorney David Van Loon and Boca Raton Attorney Jed Schneck.

 

 

Three of the seven commission members voted to hire Van Loon, giving a lopsided vote of confidence to Overby, who expressed disappointment in the vote tally.

 

 

“I wish it had been unanimous but it wasn’t,” he said after the vote.

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