Search firm warns Marco Council to 'govern themselves accordingly'

Devan Patel
Marco Eagle
Candidate Lee Niblock, left, speaks with utilities manager Jeff Poteet. The City of Marco Island hosted a "Meet the City Manager Candidates" event Wednesday evening in the city council chambers.

The firm responsible for the city of Marco Island's last two city manager searches has warned the City Council of potential legal action in response to comments by councilors questioning its work product.

Rod Smith, an attorney representing The Mercer Group, sent City Attorney Alan Gabriel a letter on April 12 advising the City Council to "govern themselves accordingly."

"Sadly, that strategy has failed to stop some council members from impugning his reputation to such a degree that issues surrounding the City Manager's search have surfaced during recent interviews for prospective search contracts in other venues," Smith wrote. "The purpose of this letter is to make it clear that if such conduct and statements are not retracted my client will pursue measures necessary to preserve and protect the good name which Mercer Group has earned over many years."

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The Mercer Group was hired on April 24, 2017, to conduct the new city manager search after Roger Hernstadt resigned on Feb. 6, 2017.

The search produced two finalists, Joshua Gruber and Anthony Hamaday, though Hamaday would withdraw as a candidate.

After Gruber failed to secure the required supermajority of votes needed to become city manager, W.D. Higginbotham, senior vice president of The Mercer Group, terminated its contract with the city.

Higginbotham agreed to continue the search on Aug. 21, 2017, which ultimately led to the selection of Dr. Lee Niblock.

Niblock's tenure, however, would be short-lived after allegations of battery surfaced. The council voted to place Niblock on leave on Feb. 20 before terminating him with cause on March 19.

While the State Attorney's Office is currently reviewing the case forwarded by the Collier County Sheriff's Office, Niblock was charged with battery in Alachua County in a separate incident that occurred while he was the county manager.

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Jared Grifoni

During the April 2 City Council meeting, Chairman Jared Grifoni presented a position paper about how to conduct the next search and suggested that Gabriel approach The Mercer Group about recouping costs for the search because the search did not meet the guarantees of the contract.

While Grifoni sought an exchange of value since Niblock's tenure did not last 24 months, others said that "red flags" were present.

In Smith's letter, he took issue with those comments as he stated the packet the council was provided included details of Niblock's terminations from Alachua and Marion counties and the battery charges did not surface until after Niblock was hired.

Smith said Grifoni showed preference for selecting Gruber during a June 20 special city council meeting.

"During that meeting the then vice-chairman, Mr. Grifoni, stepped down from the dais and presented a prepared overhead by which he discredited each candidate other than candidate Gruber," Smith wrote. "W.D. had been made aware of the vice-chairman's preference for candidate Gruber as early as May 10, 2017."

Grifoni denied Smith's characterization and said his slide condensed all the information provided by The Mercer Group.

Grifoni noted the council had also voted 6-0 to advance Gruber as a finalist in its first search.

Instead, Grifoni focused on the positive steps the council took to finding its next city manager.

"The original Mercer Group contract provided an out-of-pocket expenses only (no professional fees) 'do-over' search if the placed candidate didn't remain in the position for 24 months for any reason," Grifoni wrote in an email. "There is value, time, and effort associated with that benefit. As the city identifies the best possible avenue to take in the search for our next city manager, our taxpayers deserve every stone to be unturned until we find the right path." 

Although he did not call out council members by name, Councilor Howard Reed referenced the letter from The Mercer Group's attorney during Monday night's council meeting and said he believed the firm had a legitimate claim.

"I think as professionals we need to take this seriously," Reed said. "I think it would be good if the statements were retracted. I think they were not appropriate, but that's my opinion and not necessarily other people's opinion."