Loading...
Minutes 01-23-87 VERBATIM TRANSCRIPT OF SPECIAL CITY COUNCIL MEETING HELD IN COUNCIL CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA JANUARY 23, 1987 AT 5:30 P.M. PRESENT Nick Cassandra, Mayor Carl Zimmerman, Vice Mayor Ezell Hester, Councilman Ralph Marchese, Councilman Dee Zibelli, Councilwoman Peter L. Cheney, City Manager Betty S. Boroni, City Clerk Raymond Rea, City Attorney Cassandra: Zimmerman: Cassandra: Hester: Cassandra: Zimmerman: Marchese: ............. Cassandra: Good Evening, Ladies and Gentlemen, and welcome to the Special City Council meeting, Friday, January 23, 1987, 5:30 P.M. We're here today for the Council by majority vote has asked the City Attorney to give an opinion on the candidacy of Mayor Nick Cassandra and Robert Ferrell for Mayor. What I would like before we start is ask the Council what procedure they want to go by: one, do they wish to have a Public Hearing, as far as the people are concerned; two, do they wish a summary of this thirteen page opinion dissertation, or do they want some time to keep on reading and then ask a summary. Question number one, do you wish it open to the public to speak? Don't all answer at once. This is pretty much a legal interpretation, I believe. You don't want the public input? Just give me some directions for what we should do. Well, it's a legal opinion, so i think I would elect to hear from the lawyer, personally. Then the consensus, should I say it, that the consensus for the record that the Council is not having this open to the public? Let the record show that the consensus is that this will not be a Public Hearing as far as the people speaking. Item number two was do you wish a summary of this thirteen page dissertation, or do you want some more time to read it and then ask for a summary? A brief explanation might be in order. Yes, I think so. Mr. Raymond Rea, I get the feeling they would rather have a summary, if you can highlight. Are - 1 - VERBATIM SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1987 Rea: Cassandra: Rea: Searcy: Rea: there any extra copies around for Mr. Ferrell? Bob, there's one up here. Betty has all my extras. And you have one, Becky? Is there any other news media in here? We only have one more left, and I'd prefer to hold it in case we get another news media in here. City Attorney-- O.K., if I may, I apologize for the length in the first place, but I really believe that the questions involved couldn't have been done justice without going into detail. What I've done is provided a brief little summary on pages 12 and 13. I don't know, has everyone had a chance to read that? O.K. Basically, we have two scenarios we have to consider, and we're primarily dealing with the interpretation. Could you talk louder so we can hear you? Can't hear me? O.K., how about that? I'm sorry, I didn't realize that. Basically, we have two scenarios with regard to the provisions under Section 50 of the Charter. The Charter states-- and I think we're all fairly familiar with the language, but I'll go over it again--that "all elective offices shall be for a term of two years, and no person shall be eligible to hold such office for more than two consecutive terms." The question mark is whether or not, what is the definition of the term "for purposes of the two term limitation", and the second question is "what is the definition of elected to office as far as the two term limitation" as Well. Before I go into much of the, I think I'll handle the relationships of the two year term first and the problems resulting with what is a full term under the Charter. But I'd like to preface those com- ments that my analysis is primarily dealing with those elected officials who have been elected to run in a general election for a full two year term. The cases in Florida are fairly specific with regard to either a person who's been appointed to fill an unexpired term or elected to fill an unexpired term. They have consistently taken the approach that that unexpired term, either by appointment or by election, amounts to a interim - 2 - VERBATIM SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1987 term and that it's transitional in nature, so that that individual that's either been elected or appointed to fill that unexpired term has the opportunity in their own right to run for terms until a prohibition takes place. So in something like Boynton Beach when somebody is appointed or elected for an unexpired term of a prior councilman, that person then has the opportunity to run for two consecutive terms under the Charter without any prohibition, thus serving possibly more than a four year period. The problem with the unexpired term, or, I'm sorry, the problem with regard to the two term limitation has been addressed back in this City, I guess it goes back until 1983. Back in 1983, the then City Attorney was asked with regard to Former Mayor Trauger, who ran in a special election, whether or not he would be able to run for two more terms. Back in 1981, also with regard to former Councilman Sam Wriqht, with regard to his ability to run for two terms after the City went to District elections and then again, back in December 1984 with regard to then Councilman Bob Ferrell, the former City Attorney took the opinion that since the Charter said that all elected offices shall be for a term of two years, that the Charter essentially was self- defining, that the term was two years and any portion less than two years was not a full term. What I had to do was go into a considerable amount of research trying to figure out whether or not, in fact, that was a legitimate approach; and I have to respectfully decline to agree with that particular definition of what a term really is under the Charter. Historically and very classically, when a term of office is defined for a specific length of time, that term of office is interpreted to mean the fixed, legal period during which the incumbent may legally hold a particular office. What I'm trying to say is when, as in this Charter, it says "all elected offices shall be for a term of two years", what the Charter is actually saying is that the maximum term in an elective cycle for two years is defined the maximum extent that one can hold office during a term of office. It doesn't define what a full term is for purposes of, you know, whether one has completed a whole term. And there is some case law in Florida which interprets terms and, you know, terms being for a set period of time as primarily - 3 - VERBATIM SPECIAL..CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1987 Man in Audience: Rea: related to election cycles. That if we're talking about a two year term of office, we're talking about a term which regularly expires on a regular basis every two years, so that it is not, the definition doesn't define what the term is, what a full term is, but it defines more what an individual can hold that office for the maximum amount of time if they're elected. The former legal counsel also relied on a case by the name of Viera vs. Slaughter, which was a 1975 1st District Court of Appeals case dealing with whether or not a person who was elected to an interim office, whether he then would not be allowed to run for Mayor again as well. The former City Attorney used the approach that that indicated that one who has not served a full two years would be allowed to continue to run for office until he has actually served a two year term of office. My analysis of that particular case is somewhat different. I believe it's limited to the facts where that person was elected, again, in an analogous fashion to one who's appointed for office or elected to fill specifically an interim period, such as an unex- pired term of a prior Councilperson. Up until now, the City really hasn't had to confront the issue. Former Councilman Wright was preparing to run for, I guess, the second-and-a-half term. You're fading out, counselor. O.K., Councilman Wright was preparing to run for a second-and-a-half term, I guess the ter- minology would be, when he moved out of the City; and the City never had to confront the issue. Emily Jackson, after serving two full terms, filed the papers for a special election and then later withdrew the papers or withdrew her candidacy prior to the issue becoming, you know, coming to a head. The matter with regard to whether or not a Councilperson can serve two consecutive terms as Councilman and then two con- secutive terms as Mayor, is pretty much the same scenario. It deals again with the definition of what an elected office is. I think, ultimately, the issues are resolved when you try to seek the intent of the voters. The voters have been asked three times whether or not the two term limita- - 4 - VERBATIM SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA JANUARY 23 , 1987 tion should be either liberalized or eliminated altogether, and each time they voted it down. I think from a practical point of view, in each case if you were to interpret the Charter pro- vision to require a full two year term to be served, a full two year term to be served for the limitation to exist, you would then permit someone to be able to resign within a day prior to the expiration of the term to continue to run again for an eternity without ever kicking in the two term limitation. Additionally, if you interpret it in such a fashion to allow an individual as a Councilman to serve two terms and then to serve two terms as Mayor, you find yourself in the exact same scenario where one individual can run as Council, can run as Mayor, can run as Council, and Mayor ad infinitum; and the two term limitations never kick in. There is only one distinction, and with regard to the the term limitation, if when the redistricting occurred, if the redistricting resulted in an individual being required to step down, then we would have a different scenario. If one was actually required to step down and give up his seat prematurely, we would have a different type of scenario with regard to two term limitation. So to sum it all up, in my opinion, I don't think anyone is going to particularly like this, but in my opinion, I don't believe either candidate should be qualified to run for office. I think from the two term limitation factor, the two terms apply more to one being elected and serving at two different, consecutive occasions, rather than one elected and serving for a full two years of the term. With regard to the Mayor- Councilman scenario, again, it's my opinion that the prohibition relates to any office holder irrelevant to what the title is. Now, that brings us down to the other decision. What I've just given you is simply an opinion and nothing more; and certainly as it came up in the last Council meeting, on the one hand, you can have this, and on the other hand, you can have another evalu- ation. The bottom line question is ultimately who's the authority to decide and in what form should this be decided. Section 18 of the Charter indicates that the Council shall be the judges of the qualifications, elections and returns of its own members. There is almost, word for - 5 - VERBATIM SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1987 word, a similar provision provided in the State Constitution with regard to the Legislature. In the State Constitution, the Legislature is the sole judge of the qualifications of its members. That specific terminology was evalu- ated by the Courts with regard to whether or not the State Legislature would be able to judge the qualifications of one who's been elected for office, already elected, or one that's about to be elected for office. The Courts took the position that if you want to make that distinc- tion prior to election or after election, that's really form over substance in that, again, the body that has that authority has the authority to make that decision prior to or after, espe- cially if they're in the position of being able to make the determination as to who should be able to file their papers to run. There is, however, a big distinction between the cases dealing with the Florida Legislature and the situation that we have here today before the City Council. In the case of the Florida Legislature, the Constitution says specifically that the Legislature is the sole judge of its own qualifications, the qualifications of its members. The Charter provision that we have here does not give that exclusive jurisdiction to the City Council. Thus, in the scenarios dealing with Legislative members and their qualifications, the Courts do not address the issue at all; in fact, they refuse to take jurisdiction over it. The situation here with the City Council, the City Council is the first, possibly the first group to make the determi- nation. However, if the determination is adverse to any particular party, the Courts certainly will decide. If it does get into a Court setting, what are the ramifications of how the Courts decide? Anyone who would like to predict what a Court would decide is--you said it--a fool or something else. But they do take a classic approach; when it comes to running for office, there's a real fundamental right involved as far as one's ability to run for office. And restrictions, for example, like restrictions on the City Charter are valid; and the Courts will classically look at the language, and they first make a determination as to whether or not that wording is ambiguous. If the Courts look at - 6 - VERBATIM SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA JANUARY 23 , 1987 Cassandra: that and read it and say "Yes, we understand it. It's fairly clear to us what that Charter posi- tion means," the prohibition is upheld. See, it's simple. However, if they decide that there's a real major ambiguity in the position of the Charter, then, of course, that opens it up to interpretation of other Courts. The Courts have generally, especially when there's ambiguity, as far as whether or not prohibition of running for office applies to any particular person. The Courts generally take the approach that that restriction to run, if ambiguous, should be interpreted, if possible, in favor of the can- didate running. The ultimate, I guess, rationale, of course, they're using is that if we're in doubt as to what the current provision says and how it should be applied, then since we're dealing in this case with the Charter of the people of the City of Boynton Beach, it should be up to the people to decide what the Charter means. So again, that kind of determination is made only if the Courts decide that the specific language is ambiguous; and, if so, then they will have the tendency to interpret it in such a fashion in favor of the candidate running for office. In summary, it's my opinion that neither can- didate should be permitted to run under the provisions of the Charter--that the Charter, at least in my interpretation, is'clear and unam- biguous and unequivocal as well. The voters of the City of Boynton Beach have had a number of opportunities to eliminate that prohibition and' chose not to. Again, if this Council does have the authority to make the determination as to whether or not certain individuals should be allowed to file their papers, if this Council decides to prohibit the individuals from filing, it probably will end up with a Court case. If this Council cannot make a decision, I think then the only appropriate thing would be for the City Clerk to be required then to accept anyone's papers, so long as the technical requirements of the law are met. And, ultimately, that's where it brings us. I think that I've just gotten down to the bottom line. Are there any more questions, then? Any questions? Any questions of the City Attorney? Any questions? I, too bad I can't read the whole thing, but - 7 - VERBATIM SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA JANUARY 23 , 1987 Zibelli: Cassandra: Zibelli: Zimmerman: Cassandra: Hester: Cassandra: Marchese: Cassandra: Marchese: People in Audience: Cassandra: Mar chese: Cassandra: Marchese: obviously it is a well done effort. Do you have anything you wish to add or comment, Councilwoman Zibelli? Last Tuesday we started at that end; I'll go around, I'll go around. Anything you want to add to what you said on Tuesday? No, just about what I said Tuesday says it all. Vice Mayor Zimmerman? I didn't cut you off, did I? No. I've gotten over most of this, and I think it's a good explanation. Councilman Hester? Other than what you said Tuesday? No, what I said at the last Council meeting, the same thing applies. Councilman Marchese, now you can say something. Well, it's a mighty important issue-- Talk up louder. Can you hear me? Can you hear me? How can you say "no", if you don't know what the question is? The reason I'm shaking at the bit is because it's a mighty important issue, and I want to thank City Attorney Raymond Rea for a job well done. Your analysis of the problem, your explanation of the Charter has answered some questions clear in my mind, clear as a bell. There is no question now that I feel a motion is in order. I'm not ready to take a motion yet. want me to say anything? Don't you You're only the Mayor. - 8 - VERBATIM SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1987 Searcy: Everyone speak up so we can hear you. Cassandra: He took my mike. Since I am one of two of the people involved, I feel it's just appropriate that I make comment. In my opinion of this confrontation to the Charter, I must agree with Councilman Hester's comments Tuesday. The question here is not personality, it's not a Ferrell or a Cassandra, because there would be a "Mr. A" and "Mr. B" or anybody else, but the question here is strictly the issue and the intent of the Charter, if I'm quoting you right of Tuesday. And what is the intent of the Charter? Was it~ reinforced by two referendums stating what the people wanted as far as con- secutive terms are concerned? I agree with some of the analysis in this thing that I don't believe a term is one that must be two years, but a term is one that starts and ends at the time of entering and leaving office, and I've been stating that for the last couple of weeks. So I also feel very strongly about the Charter, and I'll make that feeling known in a few moments. I want to address also something that Councilwoman Zibelli said, which I agree to also--that eventually, it might require a second step, and I feel a third step, to solve this problem. The second step will be a judicially determined decision, if it goes that way. But the first step, as Truman says, "The buck stops here." It's our decision; it's our law and what we intended that law to be. So we have to today decide what that intent of the Charter was. The second step would, of course, be the judicial determination of the aggrieved parties, alleged aggrieved parties, if they wish to go to Court. But the third step will depend on Hester and you (Councilwoman Zibelli) being senior Councilpersons come next year, that a referendum must be put on the ballot so that there is a clear cut two term clarification and the combination of Council and Mayor that that constitutes. So that's a third step that must take place for the new Council. I strongly would like this Council to consider directing the City Clerk not to accept Ferrell or Cassandra's applications for the upcoming election; and if there is a judicial determination that must come about, let the alleged aggrieved parties proceed to Court. So that's my recommendation to the - 9 - VERBATIM SPECIAL CITY COUNCIL MEETING i BOYNTON BEACH, FLORIDA JANUARY 23, 1987 Council that I am in agreement with the intent of the Charter, that neither one of us should apply for this upcoming election by Charter requirements. Zibelli: But the City Attorney said that Betty, Ms. Boroni cannot refuse--did you not say that? iCassandra: No, no. I think he said (Inaudible); you ask him yourself. Rea: Cassandra: Yes, if this Council can't decide what process should be taken, then Betty Boroni should be in the position to accept everybody's papers, so long as they meet the requirements. However, because this Council has the authority to be a judge of its own qualifications of its members, this Council can say "no" or "yes", and if this Council decides not to allow certain people to file, then the City Clerk will be required to accept the decision of the Council. If this Council can't decide, then the City Clerk will be required to accept the papers. Any other Councilperson that wishes to make a statement? You want to make your motion? i~Marchese: ilCassandra: Yes. Well, if you're going to make your motion to solve this, there's a conflict of interest on my part, so I will not vote on this motion, whatever it is; and I will fill out the necessary papers to keep it legal. (See Form 8B, Memorandum of Voting Conflict attached to original copy of minutes in the City Clerk's office.) Therefore-- iHester: Let me ask one question. iCassandra: Go ahead. iHester: Your opinion that you've given us, can we just accept your opinion and that will include all the other things you've said abOut not accepting papers and that type of thing? In your opinion, just your opinion. i Rea: Are you saying that if you-- - 10 - iVERBATIM SPECIAL CITY COUNCIL MEETING iiBOYNTON BEACH, FLORIDA JANUARY 23, 1987 iHester: iRea: Hester: iRea: iHester: I Rea: iCassandra: ! Zimmerman: Mar chese: iZimmerman: .Cassandra: Rea: i iRecording iSecretary: Zimmerman: Rea: Yes, if we vote to accept your opinion-- And the analysis-- Right. Sure. OoKe I think that would be (Inaudible). That would be appropriate if that's your choice. My mind is slipping, but I believe by parliamen- tary procedure, I also must pass the gavel on this particular item; because I am allowed to speak, but I'm not allowed to take any action on this. So I am passing the gavel to the Vice Mayor. We're open for a motion. I've learned quite a bit here tonight. There were two questions that were bothering me, and I think they've been answered. Under the cir- cumstances, I make a motion. I move that the City Clerk of Boynton Beach NOT accept qualifying papers from either Nick Cassandra or Bob Ferrell for any office in the City election of '87. We have a motion on the floor. second? Do we have a I think the Attorney-- Could I just hear the motion again? I move that the City Clerk of Boynton Beach NOT accept qualifying papers from either Nick Cassandra or Bob Ferrell for any office in the City election of 1987. Or in similar-- I would think that probably you would want to indicate that if that's the will of the Council and that's the measure of your motion, you'll probably have to indicate that the Council finds that the two candidates are unqualified to file - 11 - UERBATIM SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA JANUARY 23,. 1987 Mar chese: Cassandra: Searcy: Cassandra: Zimmerman: Hester: Zimmerman: }{es t er: Cassandra: Hester: for office for the 1987 Municipal elections, and therefore, direct the Clerk NOT to accept the qualifying papers of either of the two candidates. Somove. May I ask you a question? Would it not be better for the motion maker to say "according to legal opinion", and then this way, the former City Attorney has taught me many things-- I can't hear you. I don't have a mike, Wilda. There's one mike for five people. I believe that the practice is by Legal Attorney's recommendation in this sum- mary, and then make what you said. That at least will say he's following legal advice and sound mUch better that way and protect, I think, all the Councilpersons involved. That motion would still allow me to resign and run. That's true. That's right. So you might add "or persons in similar situations." That's true. Repeat the motion. No, I heard the motion. Personally, I don't think we should be calling people names in the motion. That's my opinion. As far as I'm con- cerned, I'm going to accept the Attorney's opi- nion, and that's it. Because that's legal, and two terms, they've served the two terms, and that means they won't be able to (Inaudible). So I'm not going to name, just like Vice Mayor Zimmerman, I might want to resign and run for Mayor, who knows. Just like he said, if you only include, leave the names out and just say "We accept the Attorney's opinion." I mean, that's the only way I'm going to accept, is to accept your opinion. I don't think it's good to start putting names in the motion. It's understood that these people haVe served their terms, and-- - 12 - VERBATIM SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1987 Rea: You could, actually, how you could word a motion is that based upon advice of legal counsel provided at this special session with regard to the quali- fications of candidates under the terms of the Charter, this Council moves NOT to accept quali- fying papers of candidates who have already been elected under the factual setting indicated in the Attorney's legal memorandum. (See attached legal memorandum incorporated by reference herein.) Cassandra: Do you have all that down? Rea: I apologize for the mouthful; I'm trying to think of a better way-- Marchese: I so move. Zibelli: You don't want to say that again. Hester: I second it. Zimmerman: The motion has been made and seconded that-- supposing you read it as you took it down from the Attorney, and we'll agree whether that should be right or not. Recording Secretary: Based upon the advice of legal counsel provided at this special session with regard to the qualifications of candidates under the terms of the Charter, this Council moves to accept qualifying papers of candidates who have already been elected under the factual setting indicated in the Attorney's legal memorandum. (See attached legal memorandum incorporated by reference herein.) Cheney: Was that moves NOT to accept? Recording Secretary: NOT to accept. Zimmerman: Boroni: Hester: oroni - May the record reflect that I wish that to be my repeating of the motion. Any further discussion? No further discussion, we'll have a roll call vote. There will only be four. Councilman Hester? Aye. Councilman Marchese? - 13 - VERBATIM SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA JANUARY 23, 1987 Marchese: Boroni: Zibelli: Boroni: Zimmerman: Boroni: Zimmerman: Cassandra: Hester: Aye. Councilwoman Zibelli? Aye. Vice Mayor Zimmerman? Aye. Vote 4-0. The m6tion is carried unanimously. Is there anything you wish to add? accept the magic words. So move. I will then There being no further business, the meeting was adjourned at 6:05 P.M. ATTEST: - // City Clerk Recording Secretary (One Tape) CITY OF BOSTON BEACH, FLORIDA  C~ilman ~ Councilman C6uncilwoman - 14 - FORM 8B MEMORANDUM OF VOTING CONFLICT FOR COUNTY, MUNICIPAL, AND OTHER LOCAL PUBLIC OFFICERS LAST NAME--FIRST NAME--MIDDLE NAME MAILING ADDRESS /o-¢'-- 'CITY ='~ATE ~)N WHICH VO'I'E OCCURRED COUNTY NAME OF BOARD, COUNCIL, COMMISSION. AUTHORITY~ OR COMMITTEE . THE BOARD, COUNCIL COMMISSION, AUTHORITY, OR COMMITTEE ON WHICH I SERVE IS A UNIT OF: X~ (?l'rY [: COUNTY !2- OTHER I.OCAL AGENCY NAME OF POLITICAL SUBDIVISION: MY POSITION IS: ~ ELECTIVE APPOINTIVE WHO MUST FILE FORM 8B -~This form is for use by any person serving at the county, city, or other local level of government on an appointed or elected board, ouncil, commission, authority, or committee. It appties equally to members of advisory and non-advisory bodies who are presented with a voting conflict of interest under Sectiou 112.3143,. Florida Statutes. The requirements of this law are mandatory; although the use of this particular form is not required by law, you are encouraged to use it in making the disclosure required by law. Your responsibilities under the law when faced with a measure in which you have a conflict of interest will vary greatIy depending on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form before completing the reverse side and filing the form. INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES ELECTED OFFICERS: A person holding elective county; municipal, or other local public office MUST ABSTAIN from voting on a measure which inures co his special private gain. Each local officer also is prohibited from knowingly voting on a measure which inures to the special gain of a principal (other than a government agency) by whom he is retained. , In either case, you sh~)uld disclose the conflict: PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on which you are abstaining from voting; and ...... WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the minutes of the meeting, who should incorporate the form in the minutes. 'APPOINTED OFFICERS: · A person holding' appointive' ' county, municipal, or other local public office MUST ABSTAIN from voting on a measure which inures to his special private gain. Each local officer also is prohibited from knowingly voting on a measure which inures to the ~pecml gain of a principal (other than a government agency) by wholn he is retained. a, person holding an appointive local office otherwise may participate in a matter in which he has a conflict of interest, but must disclose the nature of the conflict before making any attempt to influence the decision by oral or written communication, whether ~nade by the officer or at his direction. ~.~tF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH HE VOTE WILL BE TAKEN: You should complete and file this form (before making any attempt to influence the decision) with the person responsible for recording the minutes of the meeting, who will incorporate the form in the minutes. .~ A copy of the form should be provided immediately to the other members of t'he agency. The form should be read publicly at the meeting prior to consideratiOn of the matter in which you have a conflict of interesL Ff)RM alii i (l-Rtl PAGE IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING: · You should disclose orally the nature of your conflict in the measure before participating. · You should complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minute~, of the meeting, who should incorporate the form in the minutes. DISCLOSURE OF LOCAL OFFICER'S INTEREST , hereby disclose that (a) A measure came or will come before my agency which (check one) inured to my special private gain; or inured to the special gain of , by whom ! am retained: (b) The measure before my agency and the nature of my interest in the measure is as follows: gnat ure NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES §112.317 (1985), A FAILURE TO MAKE ANY REQUIRED DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF .THE FOLLOWING: IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A CIVIL PENALTY NOT TO EXCEED $5,000. CE FORM 8B - 10-86 PAGE STATEMENT OF FACTS Robert P. Ferrell was originally elected to the City Council from District 2 for a two year term beginning March 29, 1984 and ending March 27, 1986. Following Councilman Ferrell's election, the City, by referendum, changed its District Boundaries in such a fashion that Councilman Ferrell's residence (which had not changed) was in the new council District 1. The redistricting which occurred in March, 1984, amended Section 17 of the Charter to reduce the number of City Council Districts from 5 to 4 and provided that the Mayor be elected at large. As a result of the redistricting election schedule, (assuming that a two term limitation applies), Councilmen in the new Districts 2 and 4 could run for two consecutive two year council terms and then would be required to sit out one year until a Mayor seat was up for election or sit out for two yea~s until another seat was vacant. Those Councilmen in Districts 1 and 3 could run for two consecutive two year terms and then must sit out two years to run for Mayor or council. Pursuant to the referendum, elections to the council seat for the new District 1 were to be h~ld_in_Mar~ch of.~1~85 for a two year term beginning at that time. Thus, if Councilman Ferrell served his full term as elected in March of 1984, which he was legally permitted to do, when his term expired in March, 1986, he would not have been eligible for reelection because the District 1 seat would have been occupied and not have been vacant at that time. Councilman Ferrell had the option of serving his full two year term in the old District 2 and sitting out one year until the District 1 and Mayor seat came up for election or resigning half-way through his first term and running for election to another full two year term in the newly created District 1 seat or the Mayor's seat. Consequently, Councilman Ferrell resigned his District 2 seat by letter dated January 15, 1985, with an effective date for the resignation of March 21, 1985. This resignation was made pursuant to the "Resign to Run" Law, and Councilman Ferrell then filed for candidacy for the new District 1 and was elected in March, 1985. His term in the new District 1 began March 28, 1985, and was scheduled to expire March 26, 1987. Councilman Ferrell later decided to run for a seat on the Palm Beach County Commission. Pursuant to the "Resign to Run" law, Councilman Ferrell submitted his resignation from the Boynton Beach City Council by letter dated June 23, 1986, with the resignation effective November 17, 1986. Pursuant to that letter, the effective date of the resignation is the day before Councilman Ferrell would have taken office if elected to the County Commission. Nick Cassandra, was originally elected to the City Council from the old District 1 for a two year term. As a result of the redistricting during his first term, Councilman Cassandra residence remained in the new District 1 which had an identical two year election schedule. When his first term expired, Councilman Cassandra decided in March of 1985 to run for a two created elective position of Mayor rather than seek reelection as a councilman from the new District 1. As a result of the March 1985 election, Councilman Cassandra was elected Mayor while Councilman Ferrell was elected to the seat vacated by Cassandra. Mayor Cassandra has now served the City as an elected official for four full years, two of which have been as a councilman from District 1 and two years as an elected Mayor. Former Councilman Ferrell has been elected to two council terms and has not served out the full extent for either. 2 In March, 1986, the voters, by referendum, voted down an amendment to the City Charter which would have unequivocally defined the term "elective office" as including both Mayor and Council member and permitted three consecutive two year terms rather than two consecutive two year terms. This referendum would have amended Section 50, Terms of Elective Offices, of the City Charter by deleting the words which are struck-through and adding the words in underline as follows: All elective offices shall be for the term of two (2) years and no person shall be eligible to hold s~h any elective~office for more than ew~ three (3) consecutive terms. For purposes of this Section, elective office shall include both Ma¥or and Council member. This Charter Amendment appeared on the ballot in the following form: "ORDINANCE 86-1 CHARTER AMENDMENT - BOYNTON BEACH CITY CHARTER PERMITTING OFFICEHOLDERS TO SERVE A MAXIMUM OF THREE (3) CONSECUTIVE TERMS. Should the Charter of the City of Boynton Beach be amended to permit elected officeholders to serve for a maximum of three (3) consecutive two-year terms rather than the current requirement which prohibits elected officials from serving more than two (2) consecutive two-year terms?" Section 50 of the City Charter was written at a time when the only elective office in the City was the position of Councilman. This Section of the Charter remained unchanged when the City was redistricted in March, 1984 to create four council districts and the election of a Mayor at large. Former Councilman Ferrell now contends that the "more than two consecutive term" prohibition should not apply to him because his resignation(s) from office resulted in incomplete consecutive two year terms. Mayor Cassandra contends that the "more than two consecutive term" prohibition should not apply to him because he has not 3 served two consecutive consecutive terms as Mayor. terms as councilman nor two ISSUES The factual setting outlined above presents a number of interesting legal issues with regard to the interpretation of the City's two consecutive term charter provision contained in Section 50. Section 50 of the City Charter presently states: "All elective offices shall be for the term of two years and no person shall be eligible to hold such office for more than two consecutive terms." The fundamental issue to be addressed with regard to the wording of this Charter provision is whether the language is plain and unambiguous and conveys a clear and definite meaning. If such is the case, with the language of the Charter provision being clear and admitting to only one meaning, no interpretation should be permissible. Two potential candidates have provided interpretations of this Charter provision which attempt to reach at the intent behind the specific wording. Under one interpretation, the Charter prohibition is to apply to those elected officials who have served two full two year terms. The other interpretation suggests that the two term prohibition should apply individually to two terms as coun~£~tm~'n~-a~d then two terms as Mayor. If such interpretations of the Charter provision are to be considered, which approach is reasonable, and who is to be the judge? Finally, if a first cut determination is made regarding the eligibility of specific candidates under their interpretation of the Charter provisions, how would the issues be resolved in Court and what would be the ultimate ramifications should this proceed to the judicial forum. Each of these issues will be addressed individually below. I. IS SECTION 50 OF THE CITY CHARTER SUBJECT TO INTERPRETATION? It is this writers opinion that the Charter provision contains plain and definite language. Thus, there should be no room for construction and no necessity for interpretation. The only proper function of this body must be to effectuate the intent of the electorate. The electorate of the City of Boynton Beach faced the issue of whether a two term prohibition should be eliminated on three separate occasions dating back to 1976. In September of 1976 a special election was called whereby the voters were required to decide whether any restriction on the number of successive terms a person may serve in an elective capacity should be eliminated. This special election resulted in the defeat of the proposal. Again, in 1984 the electorate was requested to determine whether or not the two consecutive term prohibition should be deleted from Section 50 of the Charter. This election once again resulted in the defeat of such a proposal. In 1986, the electorate faced a similar question on the ballot which similarly went down to defeat. Thus, it appears clear that the intent of the citizens of the City of Boynton Beach is that an elected official shall only serve two consecutive terms. . ~ Assuming, as this writer believes, that the language of Section 50 is clear and unambiguous, neither of the candidates who are subject to the interpretations provided in this opinion should be permitted to run for either reelection or a new seat. Apparently, however, the candidates in question allege that the language of Section 50 is ambiguous because of the lack of two fundamental definitions. These definitions, which are not provided in the Charter provision include the definition of "term" and "elective offices". The allegation that the lack of definitions for these particular terms results in latent 5 ambiguities is addressed below. II. IS EITHER CANDIDATE'S INTERPRETATION OF THE CHARTER PROVISION APPROPRIATE? (A.) IS SERVING ANYTHING LESS THAN A FULL TWO YEAR TERM SUFFICIENT TOAVOIDTHE PROHIBITION IN SECTION 50? This question has come up on numerous occasions and has been addressed by this City's prior attorney. The prior City Attorney has consistently taken the approach that the limitation, by its own terminology, applies to a full two year term of office. This approach is evidenced by Memoranda dated January 24, 1983 (regarding the eligibility of then Mayor Trauger to run for reelection), by letter dated November 20, 1981, councilman Samuel Wright Memoranda dated December (regarding the ability of then to seek reelection), and by 26, 1984, (related to then councilman Robert Ferrell's ability to seek reelection). This attorney respectfully declines to accept the proposition that the limitation by its own terminology applies to one who has served a full two year term of office. There is no doubt that Section 50 of the City Charter states that "all elective offices shall be for the term of two years..." however, a "term of office" has classically been interpreted to mean the fixed legal period during which an incumbant may legally~, hold. a particular office. See Generally, McQuillin, Municipal Corporations, 3rd Edition, Section 12.108, and cases cited therein. Thus, the statement contained in the Charter acts to define the maximum permissible legal period during which office may be held for a particular term, and does not specifically define a "term" for purposes of the two term limitation. Up until recently, the City Attorney's have been required to provide interpretations of the two consecutive term prohibition under two scenarios. The first situation dealt with reelection subsequent to filling an unexpired term, while the second dealt with problems resulting from a change from at large elections to district elections, and 6 redistricting itself. It is well established that the prohibition would not be applicable to one who has either been appointed or elected to fill an unexpired term of a prior elected official. Ervin v. Collins, 85 So.2d 852 (Fla. 1956). Thus, one who had either been elected by special election, or appointed to fill an unexpired term should not be prohibited from seeking two additional terms in his own right. However, the rationale of the Ervin Court is not necessarily applicable to situations resulting from redistricting. It is well settled in Florida that the electorate, via charter amendment, may consolidate, abolish or change the nature and geographic location of municipal offices. The principle applicable is that power to create gives the power to abolish. When the City of Boynton Beach went from at large to district elections, and later when the City was redistricted, the electorate exercised their power to amend or abolish the terms and geographic extent of the council offices. In neither case however, did the electorate eliminate the existing tenure of any council member. In fact, the electorate specifically provided that any councilman effected by the districting proposals would be permitted to continue in office until the end of their elected two year term. Former Councilman Ferrell and former Councilman Wright both chose to resign from their specific seats prior to the expiration of their completed term. In neither case were they required to do such by Charter Amendment, nor were they faced with anything other than a politically inconvenient change in the election cycle. It would appear that the Charter's reference to eligibility or lack of eligibility to hold office based upon two consecutive terms represents a reference to a candidate who has been elected in two consecutive election cycles rather than to a candidate who has held one or more term of office for two complete years. See Generally, In Re: Advisory_ 7 Opinion to Governor, 188 So. 219 (Fla. 1939) wherein the Court interpreted a four year term as relating to four year appointment and/or election cycles. To suggest that the Charter's statement relating to a term of two years is self-defining would suggest that the prohibition upon two consecutive terms can be easily defeated by a candidate's choice to resign his office at any time prior to the last day of his tenure. Such a determination, as a practical matter, would render the two term limitation meaningless and unenforceable. Previous legal counsel to the City relied upon Viera v. Slaughter, 318 So.2d 490 (Fla. 1st DCA 1975) to support his two full year analysis. This analysis would allow Former Councilman Ferrell to run for office either as a result of resignation to run for the newly redistricted council seat or as a result of his resignation to run for County Commission. This attorney respectfully declines to accept such an interpretation of Viera and suggests that Viera is limited to a factual setting wherein a transitional or interim term is filled. It is interesting to note that this City has never been required to confront this specific issue. In the case of Former Councilman Wright, the councilman_, moved out of the City prior to the election in question. Similarly, in 1979 former Mayor and Councilwoman Emily Jackson filed papers to run in a special election after serving two full elected terms. Although her papers were accepted by the City Clerk, Ms. Jackson later withdrew from the race prior to the election. (For a brief but interesting perspective on the election of 1979 see, City of Boynton Beach v. Riscoe, 376 So.2d 30 (Fla. 4th DCA 1979)). (B) IS IT PERMISSIBLE UNDER THE CHARTER TO SERVE TWo CONSEcuTiVE TF/~MS AS COUNCILMAN, CONSECUTIVE TERMS AS MAYOR? FOLLOWED BY TWO Up until the general election of 1985, the City Charter for the selection of a Mayor from the ranks of the 8 elected councilmen. During the municipal election of 1985, the Mayor was elected as an at large position for the first time. The contention now is that since the position of Mayor is an independently elected office, the two term limitation must apply to the Mayor and council separately. Thus, a Mayor may run for two consecutive terms and later, if he chooses, run for two consecutive terms as councilman without sitting out an election cycle. This City has never been required to address this specific issue. This particular problem, and its resolution, is given little assistance by an interpretation of the specific language of the charter provision. When the electorate of the City was faced with a referendum to amend Section 50 of the Charter in March, 1986, the official ballot title and the official substance of the amendment which was available for the voters to review on their ballot suggested to them that the consecutive two term limitation applied to all elected officeholders, with no distinction being made between Mayor and councilman. The voters voted against this charter amendment believing that it would provide for a maximum of three consecutive two year terms rather than the then current requirement which prohibits elected officials from serving more than two consecutive two year terms. However, Ordinance 86-1, which placed the charter amendment on the ballot, specifically provided new language which would have unequivocally indicated that elective office shall include both Mayor and council member. Thus, it is questionable whether the electorate voted down extending the permissible consecutive term limitation to three two year terms, or whether they voted down the application of the term "elected office" to Nonetheless, considered synonymous include both Mayor and council member. it appears that the electorate have always the position of Mayor and councilmen as for purposes of the two term limitation. Furthermore, the electorate has consistently voted down every attempt to either eliminate or liberalize the limitation. It appears clear from the continued rejection of these referenda that the electorate's interpretation of the charter's intent is clear and unequivocal, and that the two term limitation shall apply to all elected officeholders, no matter what office they have been elected to hold. To interpret the two consecutive term limitation otherwise would effectively eviscerate this limitation. It would permit any officeholder to run for two consecutive terms as councilman and later run for two consecutive terms as Mayor ad infinitum. III. WHETHER THIS COUNCIL HAS THE AUTHORITY TO DIRECT T~ CITY CLERK TO ACCEPT OR REJECT A CANDIDATE'S QUALIFYING PAPERS? Section 18 of the City Charter provides in pertinent part: Sec. 18. Judges of own qualifications, rUles of procedure; expulsion of members; quorum; fines and penalties. The City Council shall be the judges of the qualifications, election and returns of its own members;... Pursuant to the powers delineated in this Section, it appears that the City Council has authority to give direction to the City Clerk with reg~d! to who shall or shall not be qualified to file for elective office. The Court in McPherson v. Flynn, 397 So.2d 665 (Fla. 1981) resolved a similar provision contained in the Florida Constitution, Article III, Section 2, which provided that the House of Representatives is the sole judge of its members' qualifications. The McPherson Court indicated that there was no jurisdictional or constitutional significance in distinguishing between eligibility for candidacy and qualifications for a particular office. In brief, the Court stated that candidacy is an integral part of the election process. Thus, if authority or jurisdiction is 10 Iprovided to a legislative body by organic (either State law Constitution or City Charter) that legislative body (the City Council) has the authority and the right to make the political determination. However, there is one specific distinction between the McPherson case and the case before this City Council. Under the provisions of the State Constitution, the House of Representatives is the sole judge of its members' qualifications. In the McPherson case, the Court chose not to accept jurisdiction because they believed the constitutional provisions prohibited them from doing so. In the matter presently before this council however, the City Council would not be the sole judge, and any decision by this Council would be subject to judicial review. Nonetheless, it appears that it is within the City Council's authority to direct the City Clerk to accept, or reject, any candidate's papers if this Council believes that under its interpretation of Charter provisions a candidate is unqualified to hold office. Should this council decide to prohibit a candidate from filing qualifying papers, the ultimate decision will result in a judicial forum. If this Council chooses not to take a stand on the qualifications of a candidate for office, then it would be the duty of the City Clerk to accept all qualifying papers if procedural'and technical requirements are met. IV. WHAT LEGAL PRECEDENT WOULD APPLY IF THE QUALIFICATIONS OF A CANDIDATE WERE SUBJECT TO JUDICIAL INTERPRETATION? Should this dispute, or potential dispute, end up in a judicial forum, the Court would be faced with making a two pronged analysis. If, and only if, the Court decides that the charter provision in question is ambiguous, and does not expressly prohibit the candidacies in question, would the Court then attempt to determine the intent of the provision under standard rules of statutory construction. Thus, the Court would have to determine that an ambiguity exists because no definition of a full term is provided, or that 11 the charter does not specifically delineate which elective offices the prohibition attaches to. Upon such a determination that the charter provision is ambiguous, the Courts have classically taken the approach that the right to be a candidate for public office is a Valuable right, and no-one should be denied this right unless the constitution or applicable valid law expressly declares him ineligible. Thus, since it is the people's charter the Court would be interpreting, it would be appropriate than to give them an opportunity to impose their views and say what they meant. It appears that the voters of Boynton Beach have had ample opportunity to say what they mean regarding the two consecutive term limitation. However, under the interpretations of Viera and Ervin, the Court may choose to construe the provisions of Section 50 of the City Charter as ambiguous and in favor of eligibility to run for office. Should this Council decide to prohibit individuals from filing their papers to run for office, and should this Council be reversed by a Court of law, there is the possibility that the City of Boynton Beach may be held liable for any attorney's fees and costs which result from the litigation. SUMMARY It is the belief of this attorney that the intent of Section 50 of the City Charter is Clear and unequivocal. As such, it is believed that neither candidate should be permitted to qualify and file their papers for elective office. Such a decision is primarily political in nature and is rightfully within the jurisdiction of the City Council to determine. Should the City Council decide the matter in a fashion which is adverse to a particular candidate and that candidate invokes the jurisdiction of our courts, the courts would first have to determine that an ambiguity in the City Charter exists. If a court decides that no ambiguity exists it would appear that neither 12 candidate should be permitted to run for election. If, however, the courts believe that an ambiguity does exist in Section 50, they would have a tendency to resolve the ambiguity in favor of eligibility to run, and probably take the approach that the electorate is the most appropriate entity to decide the intent of the application of the limitation contained in the City Charter. 13