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HomeMy WebLinkAboutItem 06 First Reading of Ordinance on City Commission Initiated Charter Amendments City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761 Phone: (407) 905-3100 ▪ www.ocoee.org STAFF REPORT Meeting Date: February 20, 2024 Item #: 6 Contact Name: Rick Geller, City Attorney Department Director: Rick Geller, City Attorney Contact Number: City Manager: Robert Frank Subject: First Reading of Ordinance on City Commission Initiated Charter Amendments to Sections C-9, C-10, and C-17. (City Attorney Geller) Background Summary: Members of the City Commission have asked the City Attorney on various occasions whether the City’s citizens could vote to amend the City Charter in response to a Court Order entered by a Circuit Court Judge on December 7, 2023, that limited the Commission’s authority to regulate the candidacy of those running for the City Commission. On February 6, 2024, the City Commission, through consensus, officially directed the City Attorney to recommend revisions to the City Charter. The attached Ordinance contains three recommended amendments, to Sections C-9, C-10, and C-17, as described below. The City Commission’s Interpretation of Section C-17, City Charter On November 7, 2023, the City Commission adjudged that Section C-17 of the City Charter barred a former City Commissioner from running in the March 2024 election to recapture the last year of the term of office from which he had submitted an “irrevocable” letter of resignation under Florida’s Resign- to-Run statute, Florida Statutes § 99.012. Section C-17 states in pertinent part: Filling of vacancies. If any vacancy…occurs in the City Commission, an eligible person shall be selected by the City Commission within thirty (30) days of the vacancy to serve until the successor is elected. …. The successor to the office of…Commissioner shall be elected at the next general city election if such election is to be held within twelve (12) months of the vacancy. …. The successor shall serve for the unexpired term of the member who created the vacancy. Based on Black’s Law Dictionary’s definition of “successor” as “one who replaces or follows another,” the City Commission determined that Section C-17 must refer to two different people—the “member who created the vacancy” and member’s “successor.” The former Commissioner could not be both people; however, he could run for the seat after his original term expires, in the March 2025 election. Page 149 of 309 City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761 Phone: (407) 905-3100 ▪ www.ocoee.org Circuit Court Order On December 7, 2023, in the case of Oliver v. Sibbitt (Case No. 2023-CA-017123-O), an Orange County Circuit Court Judge entered an Order Granting Emergency Motion for Temporary Injunction. The Circuit Judge ordered the City Clerk to accept the former City Commissioner’s qualifying papers as a candidate in the March 2024 election. The Circuit Judge never criticized or otherwise addressed the City Commission’s interpretation of Section C-17, having never reached the issue. Instead, the Circuit Judge held that the City Commission lacked authority under the City Charter to adjudicate the former Commissioner’s qualifications as a candidate. The Circuit Judge wrote (emphasis added by the court): The City Charter does not give the City the right to judge the qualifications of candidates. Instead, Section C-10 of the Ocoee City Charter states, ‘[t]he City Commission shall be the judge of the election and qualifications of its members and of the grounds for forfeiture of their office...’ (emphasis added). It is clear Plaintiff is not a member of the City Commission and therefore, the City Commission is not the judge of his qualifications as a candidate. Hence, the Circuit Judge differentiated between members of the Commission and those who seek election to become a member, narrowly interpreting the City Commission’s role as “judge of the election” so as to exclude candidacy for election. Under this interpretation, an unqualified candidate for the City Commission can submit qualifying papers, run for office, siphon votes from one or more qualified candidates, and win election without the City Commission having any recourse before the election. The City decided not to appeal the Order, considering both the expense to the City and the ability of the City’s citizens to, in effect, overturn the Judge’s decision at the voting booth. Section C-9 – Interpreting and Enforcing the Charter To remove any doubt created by the Order and to confirm or establish that the City Commission has authority to interpret and enforce the City’s own governing Charter, a proposed amendment to Section C-9 of the Charter would add: The City Commission has the authority to interpret and enforce the provisions of this Charter, which shall be binding unless such interpretation and enforcement is held by a court of competent jurisdiction, including after any appeals, to be clearly erroneous, arbitrary, capricious, or otherwise unconstitutional. Section C-10 – Adjudging Qualifications of Candidates A proposed amendment to Section C-10 of the Charter would confirm or establish the authority that the City Commission believed it possessed on November 7, 2023, to adjudge the qualifications of, not only its elected members, but also of candidates and persons seeking to qualify as candidates to the City Commission in an election. Amended Section C-10 would state: Page 150 of 309 City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761 Phone: (407) 905-3100 ▪ www.ocoee.org The City Commission shall be the judge of the qualifications and eligibility of candidates for the City Commission, the election and qualifications of its members, and of the grounds for forfeiture of their office under this Charter. The amendment would also state that the City Commission has the power to establish procedural rules for implementing this section and ensuring due process, including reasonable notice to affected parties. …. Decisions made by the City Commission under this section shall be subject to review by the a courts of competent jurisdiction on a petition for writ of certiorari. A petition for writ of certiorari is the proper method of seeking an appellate-level review of a local government’s quasi-judicial decision. On a petition for writ of certiorari, a court can quash a local government’s quasi-judicial decision that fails to comply with procedural due process, is not based on competent substantial evidence, or otherwise departs from the essential requirements of law resulting in a miscarriage of justice. Section C-17 – Irrevocable Resignation Finally, an amendment to Section C-17 would confirm or establish that the City Commission correctly adjudged on November 7, 2023, that a member who resigns from their office cannot thereafter seek to recapture any part of the same term of office. The amendment would state: The successor shall serve for the unexpired term of the member who created the vacancy. A member who resigns from their office cannot thereafter seek election to any part of the same term of office from which the member resigned. The City Commission’s Options Section C-59 authorizes the City Commission to appoint a Charter Review Commission “at such times as deemed necessary….” Therefore, if deemed necessary, the City Commission could reconvene the Charter Review Commission to make a recommendation back to the City Commission on whether to place the proposed amendments on the ballot. Alternatively, the City Commission could decide that reconvening the Charter Review Commission to make recommendations about the Commission’s own authority is not necessary. The City Commission can ask the voters directly to consider the proposed amendments. Florida Statutes § 166.031(1) states in pertinent part: The governing body of a municipality may, by ordinance…submit to the electors of said municipality a proposed amendment to its charter …. The governing body of the municipality shall place the proposed amendment contained in the ordinance…to a vote of the electors at the next general election held within the municipality or at a special election called for such Page 151 of 309 City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761 Phone: (407) 905-3100 ▪ www.ocoee.org purpose. …. A municipality may amend its charter pursuant to this section notwithstanding any charter provisions to the contrary. Therefore, the City Commission can decide to conduct two readings of the attached Ordinance and place one or all three of the proposed Charter amendments on the November 5, 2024 ballot. The ordinance would become effective on March 20, 2024, the day after the March 19, 2024, general city election. Issue: Should the Honorable Mayor and City Commissioners (1) reconvene the Charter Review Commission to consider the recommended Charter amendments; or (2) conduct two readings and approve of one or all three of the proposed Charter amendments to Sections C-9, C-10, and C-17 of the City Charter? Recommendations: The City Attorney recommends conducting two readings of the attached, proposed Ordinance and empowering the City’s voters to decide whether to approve of the proposed amendments to Sections C-9, C-10, and C-17 of the City Charter. Attachments: 1. Ordinance Financial Impacts: None Type of Item: First Reading Page 152 of 309 1 ORDINANCE NO. 2024-_________ AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA, PROPOSING AMENDMENTS TO THE CITY OF OCOEE’S CHARTER PERTAINING TO: (1) § C-9, TO CONFIRM OR ESTABLISH THAT THE CITY COMMISSION HAS AUTHORITY TO INTERPRET AND ENFORCE THE PROVISIONS OF THE CHARTER, AND PROVIDING FOR JUDICIAL REVIEW; AND (2) § C-10, TO CONFIRM OR ESTABLISH THAT THE CITY COMMISSION HAS AUTHORITY TO INTERPRET AND ADJUDGE THE QUALIFICATIONS AND ELIGIBILITY OF CANDIDATES FOR THE COMMISSION, ESTABLISH PROCEDURAL RULES TO PROVIDE NOTICE AND DUE PROCESS TO ANY AFFECTED PARTIES, AND PROVIDE FOR JUDICIAL REVIEW; AND (3) § C-17, TO CONFIRM THAT A COMMISSION MEMBER WHO RESIGNS FROM THEIR OFFICE CANNOT THEREAFTER SEEK ELECTION TO ANY PART OF THE SAME TERM OF OFFICE FROM WHICH THE MEMBER RESIGNED; AND PROVIDING A FORM OF BALLOT FOR THE PROPOSED AMENDMENTS AT THE NEXT GENERAL CITY ELECTION AFTER THE EFFECTIVE DATE OF THIS ORDINANCE, ON NOVEMBER 5, 2024 OR AS OTHERWISE SET BY THE CITY COMMISSION; DIRECTING THE CITY CLERK TO FILE THE REVISED CHARTER AS APPROVED BY THE VOTERS WITH THE FLORIDA DEPARTMENT OF STATE; AND PROVIDING FOR CONFLICTS, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, Article VIII, § 2 of the Constitution of the State of Florida and Chapter 166, Florida Statutes, vests the City of Ocoee (the "City") with broad Home Rule authority to conduct municipal government, and exercise any power for municipal purposes except as otherwise prohibited by law; and WHEREAS section C-10 of the City Charter states that the City Commission “shall be the judge of the election and qualifications of its members”; and Page 153 of 309 2 WHEREAS, the City Commission interprets section C-10 to mean that the City Commission has authority to not only judge the election and qualifications of its elected members but judge the eligibility and qualifications of those seeking to become a member of the City Commission through an election; and WHEREAS, the Charter Review Commission appointed on April 18, 2023, interpreted the City Commission to have such authority under section C-10, and proposed no changes to section C- 10 for the ballot at the next general city election, on March 19, 2024; WHEREAS, in an Order Granting Emergency Motion for Temporary Injunction entered on December 7, 2023, an Orange County Circuit Judge in case of Oliver v. Sibbitt (Case No. 2023-CA- 017123-O) held, “The City Charter does not give the City the right to judge the qualifications of candidates. Instead, Section C-10 of the Ocoee City Charter states, ‘[t]he City Commission shall be the judge of the election and qualifications of its members and of the grounds for forfeiture of their office...’ (emphasis added [by the court]). It is clear Plaintiff is not a member of the City Commission and therefore the City Commission is not the judge of his qualifications as a candidate.” WHEREAS, the City Commission disagrees with the Circuit Judge’s holding, but to remove any doubt, the City Commission wishes for the City’s voters to confirm the City Commission’s authority to interpret and enforce the City Charter; WHEREAS, the City Commission seeks to confirm or establish its authority to adjudge the qualifications and eligibility of, not only its elected members, but also of candidates and persons seeking to qualify as candidates for election to the City Commission; WHEREAS, section C-17 of the City Charter (Filling of vacancies) states in relevant part, “The successor to the office of Mayor or Commissioner shall be elected at the next general city election if such election is to be held within twelve (12) months of the vacancy. If a general city Page 154 of 309 3 election will not be held within twelve (12) months, the successor shall be elected at a special election which shall be called by the City Commission within ninety (90) days of the vacancy. The successor shall serve for the unexpired term of the member who created the vacancy”; and WHEREAS, Black’s Law Dictionary (10th ed. 2014) defines “successor” as “A person who succeeds to the office, rights, responsibilities, or place of another; one who replaces or follows a predecessor”; and WHEREAS, "Florida courts have generally defined a successor as "he that followeth or cometh in another's place" or, more recently, as one "who follows or takes the place another has left and sustains the like part or character." Argonaut Ins. Co. v. Commercial Standard Ins. Co., 380 So. 2d 1066, 1068 (Fla. 2d DCA 1980) (quoting Beatty v. Ross, 1 Fla. 198, 209 (1847)); and WHEREAS, the City Commission interprets “the successor” and “the member who created the vacancy,” as used in section C-17, as referring to two different people; and WHEREAS, Florida’s Resign-to-Run Act, § 99.012(b), Florida Statutes, requires an “irrevocable” resignation by a member to run for another office; therefore, a member who creates a vacancy by resignation must resign irrevocably and cannot thereafter seek election to any part of “the unexpired term” from which the member resigned; WHEREAS, the City Commission wishes for the City’s voters to confirm the City Commission’s understanding that, under the Charter, a member who resigns from their office cannot thereafter seek election to any part of the same term of office from which the member resigned; and WHEREAS, Florida Statutes § 166.031(1) states in pertinent part, “The governing body of a municipality may, by ordinance…submit to the electors of said municipality a proposed amendment to its charter …. The governing body of the municipality shall place the proposed amendment contained in the ordinance…to a vote of the electors at the next general election held within the Page 155 of 309 4 municipality or at a special election called for such purpose.” Further, § 166.031(3) states, “A municipality may amend its charter pursuant to this section notwithstanding any charter provisions to the contrary,” and WHEREAS, pursuant to Florida Statutes § 166.031, the City Commission conducted advertised public hearings and has adopted this Ordinance to submit the proposed Charter amendments set forth herein to the voters at the next general city election after the effective date of this Ordinance, on November 5, 2024 or as otherwise set by the City Commission; and WHEREAS, Florida Statutes § 166.031(2) states, “Upon adoption of an amendment to the charter of a municipality by a majority of the electors voting in a referendum upon such amendment, the governing body of said municipality shall have the amendment incorporated into the charter and shall file the revised charter with the Department of State. All such amendments are effective on the date specified therein or as otherwise provided in the charter.” NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: SECTION 1. Recitals. The foregoing recitals are incorporated as if set forth at length and are hereby made a part of this ordinance. SECTION 2. Authority. The City Commission of the City of Ocoee has the authority to adopt this Ordinance pursuant to its Home Rule and other powers set forth in Article VIII of the Constitution of the State of Florida and Chapter 166, Florida Statutes, including Florida Statutes §§ 166.021 and 166.031, as well as Chapter 5 of the City Code pertaining to elections and C-13 and C-14 of the City Charter as “the legislative body of the city” to “adopt any ordinances.” SECTION 3. Format of Proposed Amendments to the Charter. In the proposed amendments to the Charter in the sections that follow, words that are stricken are deletions; words Page 156 of 309 5 that are underlined are additions; and stars (***) indicate omitted sections and subsections that do not represent Charter amendments. SECTION 4. Proposed Amendment to § C-9 of the Charter ([City Commission] created, composition, designation, election generally): 4.1 Text of the Amendment. The City shall submit the following proposed amendment to § C-9 of the Charter to the qualified electors of the City of Ocoee: § C-9. [City Commission] created, composition, designation, election generally. There is hereby created a City Commission, to consist of five (5) members, one (1) of whom shall be known and designated as the "Mayor"; the other four (4) shall be known and designated as "Commissioners." One (1) of the Commissioners shall also be known and designated as "Mayor pro tem." The Mayor shall represent the city at large, and the Commissioners shall each represent the single-member district in which they reside. The Mayor shall be elected by the electors of the city at large. Each of the Commissioners shall be elected by the electors residing only in the respective single-member district which he represents on the City Commission. The Mayor pro tem shall be elected from among the Commissioners by the City Commission but shall continue to represent the district in which such Commissioner resides. The Mayor pro tem shall be elected at the first City Commission meeting following the swearing in of the candidates elected at each general Page 157 of 309 6 city election (unless there is a runoff election, in which case the Mayor pro tem shall be elected at the first City Commission meeting following the swearing in of the candidates elected at such runoff election) and shall serve as Mayor pro tem until the successor is elected. The City Commission shall hold office in the manner hereinafter provided and shall constitute the governing body and authority of the City of Ocoee with all the powers and privileges herein granted and provided. The City Commission has the authority to interpret and enforce the provisions of this Charter, which shall be binding unless such interpretation and enforcement is held by a court of competent jurisdiction, including after any appeals, to be clearly erroneous, arbitrary, capricious, or otherwise unconstitutional. Except as otherwise provided in this Charter, whenever this Charter contains a reference to "all members of the City Commission", such reference shall include the entire City Commission and shall not be construed to include only those members present and voting. 4.2 Ballot Title and Questions. The ballot title and summary for the proposed amendment to § C-9 of the Charter, set forth in Section 4 of this Ordinance, shall be set forth below, and shall be followed by the words “yes” and “no”: Page 158 of 309 7 Question #1 AMENDMENT OF § C-9, OCOEE CITY CHARTER, AUTHORIZING CITY COMMISSION TO INTERPRET AND ENFORCE CHARTER. Section C-9 of the City of Ocoee’s Charter shall be amended to provide that the City Commission has authority to interpret and enforce the City Charter subject to review of such decisions by a court of competent jurisdiction. Shall the above-described amendment be adopted? ___ YES ___ NO SECTION 5. Proposed Amendment to § C-10 of the Charter (Judge of qualifications): 5.1 Text of the Amendment. The City shall submit the following proposed amendment to § C-10 of the Charter to the qualified electors of the City of Ocoee: § C-10. Judge of qualifications. The City Commission shall be the judge of the qualifications and eligibility of candidates for the City Commission, the election and qualifications of its members, and of the grounds for forfeiture of their office under this Charter. and f For that these purposes, the City Commission has shall have, to the extent permitted by law, the power to censure, subpoena witnesses, administer oaths, and require the production of evidence, and establish procedural rules for implementing this section and ensuring due process, including reasonable notice to affected parties. A member charged with Page 159 of 309 8 conduct constituting grounds for forfeiture of office shall be entitled to a public hearing on demand. and notice of such a hearing shall be published in a newspaper of general circulation in the city at least seven (7) days prior to the hearing. Decisions made by the City Commission under this section shall be subject to review by the a courts of competent jurisdiction on a petition for writ of certiorari. Nothing contained herein shall be construed to deprive any candidate or member of the City Commission of such member's right to due process under the Constitution and the laws of the United States and the State of Florida. 5.2 Ballot Title and Questions. The ballot title and summary for the proposed amendment to § C-10 of the Charter, set forth in Section 5 of this Ordinance, shall be set forth below, and shall be followed by the words “yes” and “no”: Question #2 AMENDMENT OF § C-10, OCOEE CITY CHARTER, TO AUTHORIZE CITY COMMISSION TO JUDGE CANDIDATE QUALIFICATIONS. Section C-10 of the City of Ocoee’s Charter shall be amended to provide that the City Commission has authority to judge the qualifications and eligibility of candidates for the Commission, establish procedural rules for C-10, including ensuring that notice and due process is given to affected persons, and provide for review of such decisions by a court of competent jurisdiction. Shall the above-described amendment be adopted? ___ YES ___ NO Page 160 of 309 9 SECTION 6. Proposed amendment to § C-17 of the Charter (Filling of Vacancies) 6.1 Text of the Amendment. The City shall submit the following proposed amendment to § C-17 of the Charter to the qualified electors of the City of Ocoee: § C-17. Vacancies; forfeiture of office; filling of vacancies. A. Vacancies. The office of a member of the City Commission shall become vacant upon the member's death, resignation, forfeiture of office or removal from office in any manner authorized by law. *** C. Filling of vacancies. 1. Interim Members. If any vacancy, other than the Office of Mayor, occurs in the City Commission, an eligible person shall be selected by the City Commission within thirty (30) days of the vacancy to serve until the successor is elected. If a vacancy occurs in the office of Mayor, the Mayor pro tem shall serve as an interim Mayor until the successor is elected. The City Commission shall appoint an interim Commissioner to fill the vacancy created by the Mayor pro tem serving as Mayor; such interim Commissioner shall serve until such time as a Mayor is elected. The Mayor pro tem shall thereafter resume representation of his their single-member district for the remainder of the term. Page 161 of 309 10 2. Successors. The successor to the office of Mayor or Commissioner shall be elected at the next general city election if such election is to be held within twelve (12) months of the vacancy. If a general city election will not be held within twelve (12) months, the successor shall be elected at a special election which shall be called by the City Commission within ninety (90) days of the vacancy. The successor shall serve for the unexpired term of the member who created the vacancy. A member who resigns from their office cannot thereafter seek election to any part of the same term of office from which the member resigned. If all members of the City Commission are removed at the same time, the Governor of the State of Florida shall appoint an interim City Commission that shall call a special election within ninety (90) days of appointment. 6.2 Ballot Title and Questions. The ballot title and summary for the proposed amendment to § C-10 of the Charter, set forth in Section 5 of this Ordinance, shall be set forth below, and shall be followed by the words “yes” and “no”: Question #3 AMENDMENT OF § C-17, OCOEE CITY CHARTER, PRECLUDING RESIGNING MEMBER FROM ELECTION TO SAME TERM Section C-17 of the City of Ocoee’s Charter shall be amended to state that a member of the City Commission who resigns cannot thereafter seek election to any part of the same term of office from which the member resigned. Shall the above-described amendment be adopted? Page 162 of 309 11 ___ YES ___ NO SECTION 7. Miscellaneous. 7.1 Codification & Corrections. If the Charter amendment provided for in this Ordinance receives affirmative votes from the majority of the votes cast, such amendment shall be incorporated into the Charter of the City of Ocoee. Any section, paragraph number, letter and/or any heading may be changed or modified as necessary to effectuate the foregoing. Grammatical, typographical and similar like errors may be corrected, and additions, alterations, and omissions not affecting the construction or meaning of this Ordinance or the Charter may be freely made. In the event it becomes necessary, as determined by the City Commission, to make any modification to any ballot question, ballot summary, or to remove a proposed charter amendment from the ballot contained herein after adoption of this ordinance, the City Commission may make such modification by resolution. 7.2 Directions to City Staff. City Staff, under direction of the City Manager, are authorized to take such actions as are necessary and advisable to effect and carry out this Ordinance and the Charter amendments and election provided for herein, including working with the Orange County Supervisor of Elections to put the questions set forth herein on the ballot at the next general city election after the effective date of this Ordinance, on November 5, 2024 or as otherwise set by the City Commission. If the Charter is amended by a majority vote of the qualified electors of the City, the City Clerk shall file a copy of the revised Charter with the Florida Department of State in accordance with § 166.031(2), Florida Statutes. Page 163 of 309 12 7.3 Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is, for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, severed, distinct, and independent provision, and such holding shall not affect the validity of the remaining portions of this Ordinance. 7.4 Conflict. In the event of a conflict or conflicts between this Ordinance and any other Ordinance or provision of law, this Ordinance controls to the extent of the conflict, as allowable under the law. 7.5 Effective Date. This Ordinance shall become effective on March 20, 2024, or as soon thereafter as this Ordinance is approved on a second reading. Any Charter amendment provided for herein shall become effective immediately upon approval by the qualified voters of the City of Ocoee and certification by the Orange County Supervisor of Elections or other appropriate officer or entity. PASSED AND ADOPTED this ___ day of __________, 2024. ATTEST: Melanie Sibbitt, City Clerk (SEAL) APPROVED: CITY OF OCOEE, FLORIDA Rusty Johnson, Mayor ADVERTISED ___________________, 2024 READ FIRST TIME _______________, 2023. READ SECOND TIME AND ADOPTED _______________________________, 2024. UNDER AGENDA ITEM NO. _______ Page 164 of 309 13 FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this ______ day of ______________, 2024. FISHBACK DOMINICK By: Richard S. Geller City Attorney S:\AKA\CLIENTS\Ocoee, City of\Charter Review - Elections O164-27414\Ordinance to Amend C-9, C-10, and C-17\Ordinance for Ballot Qs Amending C-9, C-10, and C-17 of the City Charter - rsg - 1 8 24.docx Page 165 of 309