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HomeMy WebLinkAboutAgenda Packet 8-7-15 Special Meeting City of Cape Canaveral CITY COUNCIL SPECIAL MEETING [city seal] CAPE CANAVERAL LIBRARY MEETING ROOM 201 Polk Avenue Tuesday August 7, 2015 4:00 PM AGENDA CALL TO ORDER: ROLL CALL: PUBLIC PARTICIPATION: Any member of the public may address any items that do not appear on the agenda and any agenda item that is listed on the agenda for final official action by the City Council excluding public hearing items which are heard at the public hearing portion of the meeting, ministerial items (e.g. approval of agenda, minutes, informational items), and quasi-judicial or emergency items. Citizens will limit their comments to three (3) minutes. The City Council will not take any action under the "Public Participation" section of the agenda. The Council may schedule items not on the agenda as regular items and act upon them in the future. DISCUSSION: 1. Discussion and any action deemed necessary related to the 2015 Municipal Election and the Method of filling City Council vacancies created by the resignation of Council Members Hoog and Petsos. ADJOURNMENT: Pursuant to Section 286.0105, Florida Statutes,the City hereby advises the public that: If a person decides to appeal any decision made by the City Council with respect to any matter considered at this meeting,that person will need a record of the proceedings,and for such purpose that person may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admission into evidence of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. In accordance with the Americans with Disabilities Act: all interested parties may attend this Public Meeting.The facility is accessible to the physically handicapped. Persons with disabilities needing assistance to participate in the proceedings should contact the City Clerk's office (868-1220 x220 or x221) 48 hours in advance of the meeting. 105 Polk Avenue • Post Office Box 326 • Cape Canaveral, FL 32920-0326 Telephone (321) 868-1220 • Fax: (321) 868-1248 www.cityofcapecanaveral.org • email: info@cityofcapecanaveral.org City of Cape Canaveral City Council Agenda Form [city seal] City Council Special Meeting Date: 8/7/2015 Item No. 1 Subject: Discussion and any action deemed necessary related to the 2015 Municipal Election and the method of filling City Council vacancies created by the resignation of Council Members Hoog and Petsos. Department: Administrative Services Summary: The Mayor's Term expires in November 2015. City Code Section 26-3 states "The qualifying period for candidates for the office of the Mayor and City Council shall be at any time after 12:00 noon of the 88th day prior to the general election and no later than 12:00 noon on the 74th day prior to the date of the General Election. With the General Election scheduled for November 3, 2015, the qualifying dates/time are noon on August 7th through noon on August 21st Florida Statutes Section 99.012(3) provides: "No officer may qualify as a candidate for another state, district, county, or municipal public office if the terms or any part thereof run concurrently with each other without resigning from the office he or she presently holds." In order to satisfy the requirements of the resign-to-run law, a Council Member desiring to run for Mayor is required to submit an irrevocable resignation at least 10 days before the first day of qualifying for the Mayor position. Mayor Pro Tern Hoog submitted his resignation on July 22, 2015 with an effective date of November 17, 2015. Council Member Petsos submitted his resignation on July 28, 2015 with an effective date of November 17, 2015. Discussion related to the filling of vacancies by Staff and the City Attorney have been ongoing. On August 5, 2015 City Attorney Garganese rendered his legal memorandum (Attachment 1). The legal memorandum was immediately forwarded to the Mayor and the City Council Members. Because qualifying for the Mayoral Election commenced today and the City Council's next regular meeting is not scheduled until August 18, 2015, time is of the essence for City Council to address the City Charter question which is explained in the City Attorney's August 5, 2015 legal memorandum. To prepare for any action the City Council deems necessary, City Attorney Garganese has prepared an emergency ordinance (Attachment 2). The emergency ordinance is only necessary if City Council determines that an "intervening general election" exists that will allow the two vacancies to be filled at the November 3, 2015 general election per Section 2.06 of the City Charter. If the City Council determines otherwise or because they lack the 2/3 majority vote required, no action is required and the two vacancies will be filled by majority vote of the City Council when the vacancies occur on November 17, 2015 in accordance with Section 2.06 of the City Charter. Please understand Staff does not want to presuppose what the City Council will decide; it is your decision. The emergency ordinance was prepared to place the City Council in a position to take immediate action either way. City Council Meeting Date: 8/07/2015 Item No. 1 continued Page 2 of 2 The issue before the City Council is whether Section 2.06 of the City Charter requires the two prospective City Council vacancies, which will occur on November 17, 2015, to be filled at the November 3, 2015 general election. Discussions with Supervisor of Election Lori Scott and her Staff have occurred. They advise the last date to receive candidate names is August 28th. Additionally Supervisor Scott has provided the Uniform Primary and General Election Ballot Requirements (Attachment 3) Further explanation of the issues and ordinance will be provided at the meeting. Submitting Department Director: Angela Apperson Date: 8/7/15 Attachments: #1 August 5, 2015 legal memorandum from City Attorney Garganese #2 Ordinance No. XX-2015 (provided as an option) #3 Uniform Primary and General Election Ballot requirements Financial Impact: Cost of legal memorandum, Ordinance preparation and Staff time. Reviewed by Administrative/Financial Services Director: John DeLeo Date: 8/7/15 The City Manager recommends that City Council provide direction to Staff to move forward with either of the following potential options: 1. If the City Council determines that the City Charter does not require the two prospective vacancies to be filled at the November 3, 2015 general election, the two vacancies will be filled by appointment of the City Council, by majority vote, at such time the two council seats actually become vacant on November 17, 2015; or 2. If the City Council determines that the City Charter does require the two prospective vacancies to be filled at the November 3, 2015 general election, because said election constitutes an "intervening general election," the City Council should consider adoption of the attached Emergency Ordinance which is necessary to establish procedures for the conduct of the election. The adoption of the emergency ordinance requires a 2/3 majority vote of the City Council pursuant to Florida Statutes and City Charter. Approved by City Manager: David L. Greene Date: 8/7/15 Attachment 1 GARGANESE, WEISS & D'AGRESTA, P.A. Attorarys at Law 111 N.Orange Ave.,Suite 2000 P.O.Box 2873 Anthony A. ese Orlando,Florida 32802-2873 Board CertifiedGCaungr 3 Load Phone(407)425-9566 Govern ment Fax(407)425-9596 agarganeseaorlandolawaret August 5, 2015 VIA EMAIL David L. Greene City Manager City of Cape Canaveral 105 Polk Avenue Cape Canaveral, Florida Re: Recent Resign-to-Run Resignations submitted by Councilmen Petsos and Hoog Dear David: This letter follows our previous telephone discussion on Monday and your and the City Clerk's request for guidance regarding the recent prospective resignations from the City Council filed by Councilmember Petsos and Mayor Pro Tern Hoog. As you are aware, both Councilmember Petsos and Mayor Pro Tern Hoog have submitted resign-to-run resignation letters with the City Clerk for purposes of announcing their intentions to run for the position of mayor during the November 3,2015 City election. Councilmember Petsos' letter was dated and received by the City on July 28, 2015 and states that the effective date of his resignation is November 17, 2015. Councilmember Petsos' current term of office ends in November 2016 ("Petsos Term"). Mayor Pro Tern Hoog's letter was dated and received by the City on July 22, 2015 and states that the effective date of his resignation is also November 17, 2015. Mayor Pro Tern Hoog's current term of office ends in November 2017 ("Hoog Term"). As such, because the resignations are effective before the Hoog Term and Petsos Term expire, the resignations will create two vacant seats on the City Council: (i) an unexpired one year Petsos Term; and (ii)an unexpired two year Hoog Term. Under these circumstances, the City Charter will require the City Council to address filling the vacancies. The purpose of this letter is to advise you and the City Council regarding the procedure for filling the vacancies. Section 99.012(3), Florida Statutes (2015) (the "resign-to-run" law), provides: "No officer may qualify as a candidate for another state, district, county, or municipal public office if the terms or any part thereof run concurrently with each other without resigning Ft.Lauderdale(954)670-1979 •Kissimmee(321)402-0144• Cocoa(866)425-9566 Website:www.orlandolaw.net•Email:firm@orlandolaw.net David L. Greene, City Manager 8/5/2015 Page-2— from the office he or she presently holds. By its plain meaning, this law applies in this situation. The purpose and intent of this law has been expressed by the Florida Supreme Court as follows: The Legislature, in its wisdom,considered it inequitable for an elected official or appointive official holding office to use the prestige and power of that office in seeking election to a higher or different office. Furthermore, the Legislature agreed that by providing for prospective resignations the people of the State of Florida would not be compelled to bear the unnecessary cost of special elections occasioned by elected or appointed officials who,while holding one office, seek and obtain another elective office. Holley v. Adams, 238 So. 2d 401, 408 (Fla. 1970) In order to satisfy the requirements of the resign-to-run law,the councilmembers in this case were required to submit an irrevocable resignation at least 10 days before the first day of qualifying for the mayor position with an effective date of the resignation being no later than the earlier of two dates: the date the councilmember would take office,if elected; or the date the counclmember's successor is required to take office. §99.012(3)(d), Fla. Stat. Of course, rather than selecting a prospective effective date, the councilmembers could have also chosen to resign effective immediately and qualify as a non-office holder upon submitting their respective letters of resignation. See McCluna v.McCauley,238 So. 667 (Fla. 4th DCA 1970). Importantly, and relevant to municipalities,the law provides that With regard to an elective ... municipal office,the vacancy created by the office's resignation may be filled for that portion of the officer's unexpired term in a manner provided by the respective charter. The office is deemed vacant upon the effective date of the resignation submitted by the official in his or her letter of resignation.'§99.012(3)(f)2., Fla.Stat. (bold emphasis added). Thus, given that councilmember Petsos and Mayor Pro Tem Hoog both chose a prospective effective date of resignation of November 17,2015 under the resign-to-run law, their respective councilmember seats shall be deemed vacant on that date by operation of law. Therefore,based on the resign-to-run law,the effective date of the resignations will create two vacancies on the City Council on November 17, 2015, and the vacancies will trigger the application of section 2.06 of the City Charter which addresses the procedure for filling vacancies on the City Council: Sec. 2.06 -Vacancies; forfeiture of office; filling of vacancies. (a) Vacancies. The office of a council member shall become vacant upon the member's death, resignation, or removal from office or forfeiture of office in any manner authorized by law. David L. Greene, City Manager 8/5/2015 Page-3— (b) Forfeiture of office.A council member shall forfeit that office if the council member. (1) Fails to meet the residency requirements or fails to possess the qualifications of registered voters, (2) Violates any express prohibition of this Charter, (3) Is convicted of a crime involving moral turpitude, or (4) Fails to attend three consecutive regular meetings of the city council or more than 30 percent of all meetings of the city council held annually,without being excused by resolution duly adopted by the city council. (c) Filling of vacancies. Upon occurrence of a vacancy on the city council, the city council, by a majority vote of all its remaining members,shall appoint a qualified person to fill the vacancy until the vacancy is filled at the next general election. Said appointment shall occur within 90 days of the vacancy.At the next general election,the vacant position shall be filled by a vote of the electors for the remainder of the original term. Any councilmember so elected shall take office immediately upon election at the next scheduled city council meeting. Notwithstanding the requirements in section 2.11(c), if at any time the membership of the city council is reduced to less than four, the remaining members may, by majority action, appoint additional members to raise the membership to five. (bold emphasis added). Based on a literal reading and meaning of section 2.06, the City Charter provides that at such time a councilmember seat becomes vacant, the City Council is required to appoint a qualified candidate to serve in the seat within 90 days of the vacancy until the next general election. At the next general election, the electors shall elect a person to serve the remainder of the original term, if any,or elect a person to serve a new three year term under the City's normal election cycle. Here, the two councilmember seats are deemed vacant on November 17, 2015 because that is the effective date stated in the letters of resignation. See ,§99.012(3)(f)2., Fla. Stat. Therefore, based on a strict and literal interpretation of section 2.06 of the City Charter, once the vacancies occur on November 17, 2015, the City Council, by majority votes,will be required to appoint two qualified persons to fill the two vacant councilmember 1 In this case,assuming the two vacant seats are not filled by the electors at the November 3,2015 general election, there will only be three councilmembers on the city council at the time the vacancies occur on November 17,2015: councilmembers Bond and Walsh and the newly elected Mayor. Section 2.06(c)of the City Charter provides that in such cases where the city council is reduced to less than four,the remaining members may,by majority action, David L. Greene, City Manager 8/5/2015 Page-4— seats. The appointments must occur within 90 days of the vacancy date and are good until the next general election date which will occur on November 8, 2016. On November 8, 2016,the electors,pursuant to the City Charter,will vote to elect one qualified person to fill a new three year term for councilmember Petsos'seat because the original term of his seat will expire at that time. Further,the electors will vote to elect one qualified person to fill the unexpired one year remaining on Mayor Pro Tern Hoog's original term,which will expire in November 2017. However,while the aforesaid legal analysis is fully supported by the literal and plain reading of the City Charter, it is clear that the objective of section 2.06 of the City Charter is to permit the City Council to make temporary interim appointments to the City Council until the general election,when the electors will decide who should serve the remainder of the unexpired term of the seat previously vacated or a new three year term if the term for that seat is schedule to start anew. See State v. Gamble, 13 Fla. 9 (1869) (construing the power of the Governor to fill a vacancy until "the next election" to mean that the appointment power to fill the office is not for the remainder of the unexpired term and that the power remains with the people); See also, Model City Charter 8"'Edition,Section 2.06 Commentary (interpreting similar language to mean "the council shall temporarily fill vacancies until the next general election, when the voters will fill such vacancies for the remainder of the term). Furthermore, in Florida,the Florida Supreme Court has emphasized that there is a strong preference for elections: We feel that it necessarily follows from this consistent view and steadfast public policy of this State as expressed above,that if the elective process is available, and if it is not expressly precluded by the applicable language, it should be utilized to fill any available office by vote of the people at the earliest possible date. Thus the elective process retains that primacy which has historically been accorded to it consistent with the retention of all powers in the people, either directly or through their elected representatives in their Legislature,which are not delegated, and also consistent with the priority of the elective process over appointive powers except where explicitly otherwise provided.We thereby continue the basic premise of our democratic form of government,that it is a'government of the people, by the people and for the people. Spector v. Glisson, 305 So. 2d 777, 782 (Fla. 1974). In this particular case, Councilman Petsos and Mayor Pro Tern Hoog submitted their respective irrevocable letters of resignation before the qualifying period of the next City general election. In fact, the two week qualifying period for the next City general election for mayor is scheduled to commence on Friday,August 7,2015. In addition,the City Clerk has informed me that the Supervisor of Elections has advised her that all candidate names appoint additional members to raise the membership to five. David L. Greene, City Manager 8/5/2015 Page-5— for the upcoming November 3, 2015 election must be submitted to the Supervisor by August 28,2015 in order to be placed on the ballot. As such,given the timing of the letters. of resignation submitted to the City by Messrs. Petsos and Hoog,there is an intervening general election scheduled for November 3, 2015 before their respective councilmember seats are deemed vacated on November 17,2015. Therefore,assuming the City was able to comply with applicable election laws2, there may be no reason why the two vacated councilmember seats could not be filled at the next general election on November 3,2015, rather than by appointment by the City Council after the general election. Section 2.06 of the City Charter does not expressly address this particular situation involving an intervening general election prior to a vacancy becoming effective. In addition, after an exhaustive search of Florida case law, I could not find any cases on-point related to filling a vacancy on a city council by city charter. However,there are several important cases in the context of filling judicial vacancies by gubernatorial appointment or special election that, in my view, provide guidance in this situation because they express fundamental principles that a court could find equally persuasive in the context of filling city council vacancies.3 For example, in Spector v.Glisson,305 So.2d 777(Fla. 1974),the Florida Supreme Court held that if a judicial vacancy is known reasonably in advance of an intervening primary and general election, the vacancy must be filled by election. In support of its holding,the Court cited to Weeks v. Gamble, supra, and stated that'We have historically since the earliest days of our statehood resolved as the public policy of this State that interpretations of the constitution, absent dear provision otherwise, should always be resolved in favor of retention in the people of the power and opportunity to select officials of the people's choice, and that vacancies in elective office should be filled by the people at the earliest practical date." Likewise, in Judicial Nominating Com'm. Ninth Cir. v. Graham,424 So. 2d 10 (Fla. 1982),a judicial nominating commission sought a writ of mandamus directing the Governor to use the merit selection process to fill several judicial vacancies by appointment. However,the Governor called for a special election to fill the vacancies because there was an intervening primary and general election. Under these circumstances, the Court concluded that"the constitution mandates an election when there is sufficient time to afford the electorate an opportunity to fill a judicial vacancy." Id. The Court also summarized its conclusion as follows: In summary, if the vacancy is known in sufficient time to schedule a special election during the already scheduled primary and general election dates, then a special election should be held. On the other hand, if an irrevocable communication of an impending vacancy is presented to the governor at the time of or after the first primary, then we have held there is insufficient time 2 This assumption and the applicable general election laws are addressed later in this letter. 3 Clearly,the Governor's authority to appoint a person to fill a judicial vacancies or call for an election are governed by completely different constitutional and statutory provisions that are not applicable here. David L. Greene, City Manager 8/5/2015 Page-6— to use the primary and general election process during that year and the governor is authorized to use the merit selection process for a term ending in January following the general election two years later. Graham, 424 So. 2d 10, 12 (Fla. 1982); See also, Padovano, J., dissenting, Troth v. Detzner, 147 So. 3d 641, 645 (Fla. 1'c DCA 2014) (concluding that the rationale of the Spector decision is as compelling today as it was over 40 years ago in that elective offices should be filled by elections whenever possible). Based on the aforesaid,the City Council should examine whether the November 3, 2015 general election is an Intervening election"that will provide the City sufficient time to afford the electorate an opportunity to fill the two City Council vacancies being created by the resignations of councilmember Petsos and Mayor Pro Tern Hoog. If the City Council determines that it is an °intervening election," the City Council could interpret the City Charter as requiring a special election on November 3, 2015 to fill the two vacancies. In my opinion, this interpretation would be legally defensible. Whether the November 3,2015 City general election is an"intervening election"will depend on the applicable election laws. In other words,do the election laws allow the City to call a special election to fill the two vacancies on the City Council in conjunction with the regularly scheduled November 3, 2015 City election for Mayor. Section 26-1 of the City Code provides that the City has adopted the state election code, chs. 97-106, Florida Statutes, as the procedure for conducting municipal elections within the City. In addition, that section states, "the duties, authority and responsibility of state and county officers, board and bodies set forth in the state election code shall apply to the corresponding municipal entities in the conduct of municipal elections." Relevant here are several sections of the Florida Statutes, which are set forth as follows: Section 100.3605 Conduct of Municipal Elections. (1)The Florida Election Code, chapters 97-106,shall govern the conduct of a municipality's election in the absence of an applicable special act, charter, or ordinance provision. No charter or ordinance provision shall be adopted which conflicts with or exempts a municipality from any provision in the Florida Election Code that expressly applies to municipalities. (2) The governing body of a municipality may, by ordinance, change the dates for qualifying and for the election of members of the governing body of the municipality and provide for the orderly transition of office resulting from such date changes. David L. Greene, City Manager 8/5/2015 Page-7— 100.151. Special elections called by local governing bodies, notice. County commissioners or the governing authority of a municipality shall not call any special election until notice is given to the supervisor of elections and his or her consent obtained as to a date when the registration books can be available. 100.342. Notice of special election or referendum. In any special election or referendum not otherwise provided for there shall be at least 30 days' notice of the election or referendum by publication in a newspaper of general circulation in the county,district,or municipality,as the case may be. The publication shall be made at least twice, once in the fifth week and once in the third week prior to the week in which the election or referendum is to be held. If there is no newspaper of general circulation in the county,district, or municipality,the notice shall be posted in no less than five places within the territorial limits of the county, district, or municipality. First and foremost, pursuant to section 100.3605, Florida Statutes,chapters 97-106 of the Florida Statutes shall govern municipal elections in the absence of an applicable special act, charter, or ordinance that applies to the municipality. However, if a statute "expressly applies to municipalities," a municipal charter or ordinance cannot conflict or exempt the municipality from the express provision of the statute. In other words, with respect to conducting municipal elections, municipal charters and ordinances will govern the election process unless a particular section of the Florida Statutes expressly requires a municipality to conduct the election otherwise. Therefore,the City has significant lee way to adopt election procedures to conduct municipal elections including conducting a special election to fill vacancies on the City Council. See Sarasota Alliance For Fair Elections. Inc.v.Browning,28 So.3d 880,886-87(Fla.2010)("while we agree that Florida's Election Code is a detailed and extensive statutory scheme, we conclude that the Legislature's grant of power to local authorities in regard to many aspects of the election process does not evince an intent to preempt the field of election laws.). In this situation,the Supervisor of Elections has advised the City that the deadline to provide candidate names to the Supervisor for the upcoming general election is August 28, 2015.4 Moreover, the two week qualifying period for the upcoming mayorial election will not commence until this coming Friday. Thus, it is conceivable that the City Council could determine that the November 3,2015 general election is an Intervening election"which will provide the City sufficient time to afford the electorate an opportunity to fill the two City Council vacancies being created by the resignations of councilmember Petsos and Mayor 4 For purposes of this letter,I am assuming that means the Supervisor has agreed to conduct a special election on the City's behalf for the two vacant council seats provided the City submits all qualified candidate names to the Supervisor by that date,and that there are no other Supervisor requirements that need to be satisfied related specifically to the special election because it would be held concurrent with the already scheduled general election for mayor. David L. Greene, City Manager 8/5/2015 Page-8— Pro Tem Hoog. Of course, if the City Council made this determination, the City Council and staff will likely have to immediately take appropriate steps to duly qualify candidates for this special election. In making this determination, the City Council should also consider an interesting aspect of the City Code,which appears to have foreshadowed such an election. Section 2- 26 provides: Sec. 2-26. - Elections. All powers and duties of the city specified in the City Charter in the general laws of the state are vested in the city council.The city council is comprised of five members who are elected at large by the registered electors of the city. Two members are elected each year to three-year terms, except on every third year only one member, who is also the mayor, is elected to a three-year term. Further,should any general election include the election of a council person due to a vacancy in that office pursuant to article II, section 2.06, of the Charter, then the unexpired term shall be filled by the candidate receiving the third-greatest number of votes, or the second-greatest number of votes in third year elections involving only the mayor.Should more than one vacancy be filled at the election,then those receiving the greatest number of votes shall be declared elected for the longest terms. (bold emphasis added). This section contemplates that any election to fill vacancies on the City Council occurring at the same time as the election for mayor will be run in conjunction with the election of mayor where the candidate with the greatest number of votes is elected mayor and the candidate(s) with next highest vote total(s) will be elected to fill the unexpired city council term(s). In other words, under the City's historical system of voting for councilmembers by sequence based on the total number of votes received by each candidate and the number of seats up for election, the upcoming qualification period for mayor should not only include qualifying individuals for mayor, but also include qualifying individuals to possibly fill one of the two vacancies depending on the number of votes received in the election. In other words,the two vacant seat elections are"rolled into"the already scheduled election for mayor. Additionally, under these circumstances, it is theoretically possible that while councilmember Petsos and Mayor Pro Tem prospectively resigned to run for mayor,either one or both of the candidates could find themselves being elected to fill one of the vacancies depending on the number of votes cast for the candidates running in the election. At this juncture, if the City Council determines that there is an "intervening election" warranting placing the vacant seats on the ballot on November 3, 2015, I am recommending the City Council consider adopting an emergency ordinance to preserve the right of the electors to vote to fill the vacancies at the upcoming November 3,2015 general election. The ordinance should address, at a minimum: David L. Greene, City Manager 8/5/2015 Page-9— 1. Declaring an intervening election because there is sufficient time to afford the electorate an opportunity to fill the prospective vacancies being created by the resignations of councilmember Petsos and Mayor Pro Tern Hoog. 2. Establishing the date of November 3,2015 for the election to fill the vacancies and identifying the process under which the vacancies will be filled. 3. Establish specific notice provisions for qualifying candidates and declaring the election to fill the vacancies consistent with applicable law "expressly" applicable to municipalities under the Florida Election Code.5 4. Establish the dates for qualifying candidates. Given the City current voting method, the City Council could consider extending the qualifying period up to the deadline imposed by the Supervisor for receiving candidate names(August 28, 2015). See§100.3605, Fla. Stat. (authorizing municipalities to change qualifying dates by ordinance). Lastly, when determining which course of action to take under these very extraordinary circumstances,the City Council should consider one last point. The courts have been guided by another fundamental principle in determining whether it is appropriate to use the appointment power to fill vacancies in elective office;to wit,vacancies in elective office are to be avoided whenever possible. In re Advisory Opinion to the Governor. 600 So.2d 460(Fla. 1992). It seems obvious to me that the primary objectives of section 2.06 of the City Charter is consistent with this principle and that vacancies on the City Council should be avoided to the maximum extent possible so the City Council is in a position to adequately perform the people's business, as intended by the City Charter. In this case, if the City Council decided that the City Charter requires the two vacancies to be filled at the November 3,2015 general election,the two individuals elected to fill the vacancies will take office on the same date that councilmember Petsos' and Mayor Pro Tern Hoog's resignations become effective.6 Therefore,there will practicably be no vacancies occurring for these two council seats if an election is held on that date. On the other hand, if the City Council decided the City Charter requires them to wait until the vacancies actually occur on November 17,2015, and then appoint two qualified individuals to serve the unexpired Petsos and Hoog Terms until the next general election, the City 5 The City Clerk has expressed some concern about how candidates will be notified about qualifying for such an election because she usually publishes notice of qualifying in the newspaper at least 10 days prior to qualifying pursuant to section 100.141,Florida Statutes,and the cross reference to the Florida Election Code in section 2-26 of the City Code. First,section 100.141 is applicable to state officers and not expressly applicable to municipalities. Second,even if section 100.141 were applicable because of the cross reference in section 2-26 of the City Code,the emergency ordinance that I am recommending,if the City Council chooses this direction,will prevail over conflicting provisions of section 2-26. 6 Section 2.06(c)of the City Charter provides that any council member elected to fill a vacancy on the city council takes office immediately upon election at the next scheduled city council meeting,which under current City Council rules will be the third Wednesday of the month after the November 3,2015 general election,which is November 17, 2015. David L. Greene, City Manager 8/5/2015 Page-10— Council (Bond, Walsh, and the newly elected Mayor)will have up to 90 days to make the appointments. Therefore, under the appointment scenario, there is a theoretical chance that the two council seats will remain vacant for up to 90 days depending on how timely the City Council is in making the appointments. As such, under the circumstances, it seems that an election to fill the two vacancies is the only scenario that avoids any chance of a vacancy on the City Council. Obviously,time is of the essence for the City Council to address this issue with the qualifying period commencing this Friday and the next City Council meeting not until August 19, 2015. Please provide a copy of this memorandum to the members of the City Council forthwith. To the maximum extent feasible, I will make myself available for a special meeting of the City Council should you and the members of the City Council deem such a meeting advisable. Anthony A. Garganese City Attorney Cc: City Clerk City Council (via City manager's office) Attachment 2 ORDINANCE NO. XX-2015 AN EMERGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; REGARDING THE NOVEMBER 3, 2015 GENERAL ELECTION; DECLARING A SPECIAL ELECTION OF THE ELECTORS OF THE CITY TO FILL TWO PROSPECTIVE CITY COUNCIL VACANCIES DUE TO TWO RESIGN-TO-RUN RESIGNATIONS RECENTLY FILED WITH THE CITY CLERK BY TWO MEMBERS OF THE CURRENT CITY COUNCIL; PROVIDING THAT SUCH ELECTION SHALL OCCUR DURING THE REGULARLY SCHEDULED ELECTION FOR THE OFFICE OF MAYOR ON NOVEMBER 3, 2015 IN ACCORDANCE WITH THE CITY CHARTER AND CITY CODE; PROVIDING PROCEDURES FOR GOVERNING THE CONDUCT OF SAID GENERAL ELECTION; PROVIDING FOR CONFLICTS, SEVERABILITY,AND AN EFFECTIVE DATE. WHEREAS, the City of Cape Canaveral is granted the authority, under Section 2(b), Article VIII, of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, the City Council is authorized by Section 166.041 (3)(b), Florida Statutes, and Section 2.14 of the City Charter, to adopt emergency ordinances by 2/3 vote of the City Council in cases when City Council action is expeditiously required to address an emergency situation; and WHEREAS, pursuant to Sections 6.01 and 6.03 of the City Charter and Section 2-26 of the City Code, the City is scheduled to conduct a general election to elect a Mayor on November 3, 2015; and WHEREAS, the qualifying period for the election of Mayor is currently scheduled to commence on Friday, August 7, 2015, and shall continue for a two week period in accordance with Section 26-3 of the City Code; and WHEREAS, the Supervisor of Elections has advised the City that the deadline for submitting candidate names for municipal elections held on the November 3, 2015 is August 28, 2015; and WHEREAS, at least 10 days prior to the commencement of the qualifying period, two sitting councilmembers submitted letters of resignation with a prospective effective date of November 17, 2015 pursuant to the requirements of Section 99.012, Florida Statutes ("resign-to- run law"); and WHEREAS, in accordance with Section 99.012(3)(f)2., Florida Statutes, the subject offices of the two resigning councilmembers shall be deemed vacant upon the effective date of the resignation submitted by the official in his or her letter of resignation, which in this case will be City of Cape Canaveral Ordinance No.XX-2015 Page 1 of 7 November 17, 2015; the day that the newly elected Mayor is required to take office as required by the City Charter; and WHEREAS, due to the resignations, the City will be required to fill the vacancies created on the City Council for the remainder of the unexpired terms of the two resigning city councilmembers as provided by Section 2.06 of the City Charter; and WHEREAS, Section 2.06 of the City Charter generally provides that once the office of a councilmember becomes vacant, the City Council, by majority vote, shall be required to fill the vacancy by appointment until the next general election, at which time the electors of the City shall be required to elect a candidate to fill the vacancies for the remainder of the term or elect a candidate to serve a new three year term based on the City's regular election cycle; and WHEREAS, the City Council hereby finds that the appointment powers bestowed upon the City Council by City Charter to fill councilmember vacancies are intended to allow the City Council to fill a vacancy on a temporary basis because the electors have reserved the right to elect a person to fill the same vacancies at the "next general election. See State v. Gamble, 13 Fla. 9 (1869) (construing the power of the Governor to fill a vacancy until "the next election" to mean that the appointment power to fill the office is not for the remainder of the unexpired term and that the power remains with the people); See also, Model City Charter 8th Edition, Section 2.06 Commentary (interpreting similar language to mean "the council shall temporarily fill vacancies until the next general election, when the voters will fill such vacancies for the remainder of the term); and WHEREAS,due to the fact that the two letters of resignation were filed with the City prior to the upcoming qualifying period and the November 3, 2015 general election, the City Council finds that there is an "intervening general election" scheduled to occur before the statutorily imposed effective date of the resignations on November 17, 2015, and before the City Council would be authorized by City Charter to temporarily fill the vacancies; and WHEREAS, the City Council hereby takes legislative notice of the detailed memorandum of law provided to the City by the City Attorney, dated August 5, 2015, and the Florida cases and other legal authority cited therein, for purposes of providing the City Council guidance relevant to interpreting Section 2.06 of the City Charter under these particular circumstances when there is an "intervening general election" which may be appropriate to allow the City electors to fill any vacancies on the City Council prior to the effective date of prospective effective dates of the councilmember resignations which will be the cause of the vacancy; and WHEREAS, specifically, the City Council takes notice of Spector v. Glisson, 305 So. 2d 777, 782 (Fla. 1974), wherein the Florida Supreme Court held that if a judicial vacancy is known reasonably in advance of an intervening primary and general election, the vacancy must be filled by election. The Court further stated that "We have historically since the earliest days of our statehood resolved as the public policy of this State that interpretations of the constitution, absent clear provision otherwise, should always be resolved in favor of retention in the people of the power and opportunity to select officials of the people's choice, and that vacancies in elective office should be filled by the people at the earliest practical date." In other words, the Florida Supreme Court has emphasized that there is a strong preference for elections in Florida: City of Cape Canaveral Ordinance No.XX-2015 Page 2 of 7 We feel that it necessarily follows from this consistent view and steadfast public policy of this State as expressed above, that if the elective process is available, and if it is not expressly precluded by the applicable language, it should be utilized to fill any available office by vote of the people at the earliest possible date. Thus the elective process retains that primacy which has historically been accorded to it consistent with the retention of all powers in the people, either directly or through their elected representatives in their Legislature, which are not delegated, and also consistent with the priority of the elective process over appointive powers except where explicitly otherwise provided. We thereby continue the basic premise of our democratic form of government, that it is a `government of the people, by the people and for the people. Spector v. Glisson, 305 So. 2d 777, 782 (Fla. 1974). WHEREAS, in addition, in Judicial Nominating Com'm,Ninth Cir. v. Graham, 424 So. 2d 10 (Fla. 1982), the Florida Supreme Court concluded that "the constitution mandates an election when there is sufficient time to afford the electorate an opportunity to fill a judicial vacancy." Id. The Court also summarized its conclusion as follows: In summary, if the vacancy is known in sufficient time to schedule a special election during the already scheduled primary and general election dates, then a special election should be held. On the other hand, if an irrevocable communication of an impending vacancy is presented to the governor at the time of or after the first primary, then we have held there is insufficient time to use the primary and general election process during that year and the governor is authorized to use the merit selection process for a term ending in January following the general election two years later. Graham, 424 So. 2d 10, 12 (Fla. 1982) (bold emphasis added); See also, Padovano, J., dissenting, Trotti v. Detzner, 147 So. 3d 641, 645 (Fla. 1st DCA 2014) (concluding that the rationale of the Spector decision is as compelling today as it was over 40 years ago in that elective offices should be filled by elections whenever possible); and WHEREAS, based on the aforesaid, the City Council hereby finds that the November 3, 2015 regularly scheduled general election on November 3, 2015 is an "intervening general election" because the effective date of the prospective resignations of November 17, 2015 is known by the City in sufficient time to schedule a special election to fill the two vacancies during the already scheduled general election date, and therefore, the City should conduct an election to fill the vacancies and allow the electors of Cape Canaveral an opportunity to elect candidates of their choice to fill the unexpired terms of the councilmembers pursuant to Section 2.06 of the City Charter; and WHEREAS, the City Council also takes legislative notice of Section 100.3605, Florida Statutes, and Sarasota Alliance For Fair Elections, Inc. v. Browning, 28 So. 3d 880, 886-87 (Fla. 2010), and recognizes that the Legislature has granted local governments extensive power to control many aspects of the local election process and that while the Florida Election Code is a detailed and extensive statutory scheme, the Florida Supreme Court has held that the Legislature has not evinced an intent to preempt the field of election laws; and City of Cape Canaveral Ordinance No.XX-2015 Page 3 of 7 WHEREAS, in furtherance of the City Council's desire to conduct an election to fill the two prospective vacancies, the City Council desires to also exercise its authority to adopt procedures for the conduct of municipal elections within the City of Cape Canaveral to the extent not preempted or in conflict with the specific provisions of the Florida Election Code that are expressly applicable to municipalities, and to the extent not preempted or in conflict, it is the intent and purposes of this Ordinance that the election procedures adopted by the City Council shall prevail; and WHEREAS, the intent and purpose of exercising this local authority is to conduct an orderly City election whereby the electors of the City of Cape Canaveral are afforded a reasonable opportunity to participate in the qualifying and selection of candidates at the November 3, 2015 general election for purposes of not only electing a new Mayor, but also to fill the two councilmember vacancies that will become effective on November 17, 2015; and WHEREAS, the City Council finds that it is imperative to adopt this Ordinance so that eligible candidates and the public are aware of the City Council's decision to conduct an election on November 3, 2015 to fill the two prospective vacancies in accordance with Section 2.06 of the City Charter and other applicable provisions of the City Charter, City Code and law; and WHEREAS, the City Council finds that an emergency situation exists requiring the City Council to enact this Ordinance by emergency procedures without the regular requirement of publishing a public advertisement in a newspaper of general circulation 10 days prior to adoption because time is of the essence to publicly announce the election to fill the two vacancies, qualify eligible candidates, and to modify local procedures and requirements set forth in the City's election code in order to facilitate said election; and WHEREAS, the City Council also finds that an emergency situation exists because time is of the essence for the City Council to take necessary and immediate action to promote and protect the electors' right to elect qualified candidates to serve on the City Council before critical election qualifying and ballot deadlines for the November 3, 2015 election expire; and WHEREAS, the City Council finds that absent the ability of the City Council to adopt this Ordinance by emergency procedures, the City Council would not have the ability to adopt necessary election procedures to preserve the elector's right to choose councilmembers of their choice before the critical qualifying and ballot deadline for the November 3, 2015 election expire; and WHEREAS, the City Council of the City of Cape Canaveral, hereby finds this Ordinance to be in the best interests of the public health, safety, and welfare of the citizens of Cape Canaveral. NOW, THEREFORE, THE CITY OF CAPE CANAVERAL HEREBY ORDAINS AS FOLLOWS: Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by this reference as legislative findings and the intent and purpose of the City Council of the City of Cape Canaveral. City of Cape Canaveral Ordinance No.XX-2015 Page 4 of 7 Section 2. Call for a Special Election on November 3, 2015 to Fill Vacancies. Due to the letters of resignation from the City Council submitted to the City Clerk by Mayor Pro Tem Bob Hoog, dated July 22, 2015, and councilmember Buzz Petsos, dated July 28, 2015, the City Council hereby finds that said resignations shall take effect on November 17, 2015 by operation of law. Further, upon the effective date, two vacancies on the City Council will occur. Therefore, pursuant to Section 2.06 of the City Charter, the City Council hereby finds and declares that said prospective vacancies shall be filled by the electors of the City at the November 3, 2015 general election. Section 3. Election Procedures. The following procedures shall govern the conduct of the City's general election to be held on November 3, 2015: 1. The election of mayor and the two vacant councilmember seats shall be conducted on a single ballot in accordance with the procedures and requirements set forth in Section 2-26 of the City Code. The candidate receiving the greatest number of votes on the ballot shall be elected to the office of mayor. The candidate receiving the second-greatest number of votes on the ballot shall be elected to the office of a councilmember to serve the unexpired 2 year term of Mayor Pro Tern Hoog's current seat. The candidate receiving the third-greatest number of votes on the ballot shall be elected to the office of a councilmember to serve the unexpired one (1) year term of councilmember Petsos' current seat. In the event that two or more persons receive an equal and highest number of votes for the same office, such persons shall draw lots to determine who shall be elected to the office in question per Section 100.181, Florida Statutes. After candidates have been elected as provided above by the greatest number of votes, and one or more offices remains open due to an insufficient number of candidate(s) qualifying for the election, said office(s) shall be deemed vacant on November 17, 2015, and the City Council shall appoint a duly qualified person(s) to fill any such vacancy on or within 90 days of November 17, 2015 pursuant to section 2.06 of the City Charter. 2. The City Clerk shall immediately notify the Brevard County Supervisor of Elections of the City Council's decision to conduct an election to fill the two vacancies on the City Council at the November 3, 2015 general election, and ensure that the Supervisor of Elections consents to the date of the election pursuant to Section 100.151, Florida Statutes. If consent is not given, the City Clerk shall immediately notify the City Council, City Manager, and City Attorney by email communication. 3. The qualifying period for the election of Mayor commencing on August 7, 2015 shall be extended until 12:00 noon on Thursday, August 27, 2015, and such qualifying period shall also be for qualifying candidates to the office of councilmember in order to fill the two vacancies occurring on November 17, 2015. 4. As soon as possible, the City Clerk shall provide public notice of the election and the qualifying period set forth in paragraphs 1 and 2. Such notice shall be by publication in a newspaper of general circulation within the City, posting on bulletin boards located at the City library, City Hall, appropriate Parks and Recreation facilities, the City website, and any other places located within the territorial limits of the City expressly required by law for municipal City of Cape Canaveral Ordinance No.XX-2015 Page 5 of 7 elections or deemed reasonable by the City Clerk. This notice shall be in addition to the general election notice required by section 100.342, Florida Statutes. 5. The following ballot instructions shall apply: (a) To the extent permitted by law, the ballot used for the election shall be in a form substantially as follows: CITY OF CAPE CANAVERAL MAYOR AND TWO CITY COUNCIL VACANCIES (Vote for One) This vote decides who will be elected mayor and to fill two vacant councilmember seats with unexpired partial terms. The candidate receiving the greatest number of votes shall be elected mayor, and the candidate receiving the second greatest number of votes shall be elected to a two year term, and the candidate receiving the third greatest number of votes shall be elected to a one year term. Vote for only one candidate: Candidate Name Candidate Name Candidate Name Candidate Name (b) It is the intent and purpose of this Section to provide the voters a brief instruction and explanatory statement on the ballot explaining the election procedure required by City Code. In the event the proposed ballot must be amended, the City Manager, in consultation with the City Attorney and the Supervisor of Elections, shall be allowed to modify the ballot as required by law. The City Council shall be advised of any such amendments as soon as practicable. Section 4. Conflicts with Prior Inconsistent Ordinances and Resolutions; Florida Election Code. This Ordinance shall prevail to the extent that the provisions of this Ordinance conflict with any prior inconsistent ordinances and resolutions adopted by the City Council, or parts of prior ordinances and resolutions in conflict herewith. The Florida Election Code shall apply to the November 3, 2015 City election only to the extent the Florida Election Code preempts municipal ordinances or expressly applies to municipalities. However, this Ordinance shall prevail to the extent of any conflicts with the applicable provisions of the Florida Election Code to the extent allowed under Section 100.3605, Florida Statutes. City of Cape Canaveral Ordinance No.XX-2015 Page 6 of 7 Section 5. No Incorporation Into Code. This Ordinance shall not be incorporated into the Cape Canaveral City Code. Section 6. Severability. If any section, subsection, sentence, clause, phrase, word or provision of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this Ordinance. Section 7. Effective Date. This Ordinance shall become effective immediately upon adoption by the City Council of the City of Cape Canaveral, Florida, and shall be effective until the 61st day following the date on which it was adopted pursuant to section 2.14 of the City Charter. However, upon the occurrence of the 61st day, this Ordinance shall be deemed automatically reenacted for a period of time to certify the results of the general election on November 3, 2015, not to exceed 60 days after the automatic reenactment, unless this Ordinance is expressly repealed by the City Council before said date. ADOPTED,by at least a two-thirds vote of the City Council of the City of Cape Canaveral, Florida,this 7th day of August, 2015. Rocky Randels, Mayor ATTEST: For Against John Bond ANGELA APPERSON, Bob Hoog City Clerk,MMC Buzz Petsos Rocky Randels Betty Walsh Approved as to legal form and sufficiency for the City of Cape Canaveral only by: ANTHONY A. GARGANESE, City Attorney City of Cape Canaveral Ordinance No.XX-2015 Page 7 of 7 Attachment 3 1S-2.032 Uniform Primary and General Election Ballot. (1)The purpose of this rule is to prescribe a uniform primary and general election ballot design for each certified voting system. (2) The title shall be printed across the top of an optical scan ballot and on the first ballot screen of a touchscreen ballot in all caps bold. (a)The title of the presidential preference primary ballot shall read as follows: OFFICIAL PRESIDENTIAL PREFERENCE PRIMARY BALLOT PARTY COUNTY,FLORIDA (date) (b)The title of the primary ballot shall read as follows: OFFICIAL PRIMARY BALLOT PARTY COUNTY,FLORIDA (date) (c)The title of the general election ballot shall read as follows: OFFICIAL GENERAL ELECTION BALLOT COUNTY,FLORIDA (date) (d)The title of a nonpartisan ballot shall read as follows: OFFICIAL NONPARTISAN BALLOT COUNTY,FLORIDA (date) (3)Ballot instructions shall be printed directly under the title on the front side of an optical scan paper ballot. For a touchscreen ballot, the ballot instructions may appear at any point before the listing of candidates or may be prominently posted in each voting booth. (a)For optical scan voting systems,the following shall apply: 1. The ballot instructions for those certified voting systems using ovals to be filled in next to the voter's choice, shall read as follows: a. • TO VOTE,COMPLETELY FILL IN THE OVAL NEXT TO YOUR CHOICE. • Use(insert appropriate marking device). • If you make a mistake,don't hesitate to ask for a new ballot. If you erase or make other marks,your vote may not count. b.In a general election,if there are write-in candidates,add the following: • To vote for a candidate whose name is not printed on the ballot, fill in the oval,and write in the candidate's name on the blank line provided for a write-in candidate. 2.The ballot instructions for those certified voting systems using an arrow to point to the voter's choice shall read as follows: a. • TO VOTE,COMPLETE THE ARROW POINTING TO YOUR CHOICE. • Use(insert appropriate marking device). • If you make a mistake,don't hesitate to ask for a new ballot.If you erase or make other marks,your vote may not count. b.In a general election,if there are write-in candidates,add the following: • To vote for a candidate whose name is not printed on the ballot,complete the arrow,and write in the candidate's name on the blank line provided for a write-in candidate. (b)For certified touch screen voting systems the following shall apply: 1.For the Global ES 2001 Blended system,the instructions shall be as follows: a. • Make your selection by touching the screen on the candidate's name or anywhere in the candidate area or on the Yes or No position until the X appears. • If you change your mind,touch the candidate's name or the Yes or No position again to undo the mark. • Touch NEXT at the bottom right of the screen to move to the next ballot page. • Touch PREVIOUS at the bottom left of the screen to move back one page. • Touch CAST BALLOT button on the last ballot screen to record your vote. • To begin voting, touch START. (This instruction may be modified to instruct the voter to touch NEXT, if necessary, because of the placement of the instructions.) b.In a general election,if there are write-in candidates,add the following prior to the cast ballot instruction: • To vote for a candidate whose name is not printed on the ballot,touch WRITE-IN and a touch keyboard will appear.Key in the candidate's name on the keyboard and then touch RECORD WRITE-IN. 2.For the ES&S iVotronic,the instructions shall be as follows: a. • Make your selection by touching your choice on the screen until it becomes highlighted. • If you change your mind, touch the new choice and the highlight will appear on your new choice or if you change your mind,touch the same choice again to undo the highlight,as appropriate. • Touch NEXT or NEXT PAGE at the bottom right of the screen to move to the next ballot page. • Touch PREVIOUS or PREVIOUS PAGE at the bottom left of the screen to move back one page. • Touch REVIEW or REVIEW BALLOT on the last ballot page to review your selections. • Press the flashing red VOTE button to cast your ballot. b.In a general election,if there are write-in candidates,add the following prior to the cast ballot instruction: • To vote for a candidate whose name is not printed on the ballot, touch WRITE-IN and a touch keyboard will appear. Type the candidate's name and then touch ACCEPT. 3.For the Sequoia AVC Edge,the instructions shall be as follows: • Insert your Voter Card into the bright yellow slot located at the bottom left of the voting machine. Push it all the way in until you feel it"click." • Touch anywhere in the box that contains the name of your choice. Confirm that a green check mark appears in the circle located in the box in which your choice appears. • You may change your vote by touching the same selection again.The candidate is unselected and all circles for that contest appear again.You may then make another selection. • Write-in a qualified candidate, during a General Election only, by touching Write-In on the candidate list. When the on- screen keyboard appears,key in the candidate's name,then touch OK. The write-in candidate's name now appears on the list of candidates. • Continue to the following page by touching NEXT at the bottom right of the screen. To return to the previous page, touch BACK at the bottom left of the screen. • Review a summary of all your votes on the REVIEW page. To make a change, touch the office or issue to return to the ballot page for that race. • Complete your voting by touching the yellow square on the final screen. Your ballot is now cast. Your voter card will eject. Return it to a poll worker. 4.For the Diebold 2003B(Blended)+(Plus Audio),the instructions shall be as follows: a. Prior to any action by the voter, a screen will be continuously displayed with the title of the election, various system information, and a message prominently displayed instructing the voter to "Insert card to start." Below this message will be a large graphic depicting a hand holding a Voter Access Card, with additional text stating "Please Insert Your Card" above an arrow pointing to the card insertion slot. b. Upon insertion of the Voter Access Card, another screen appears. If multiple language choices are available, this screen will have buttons for the respective languages. At the top of the screen is a message stating: "The Ballot Presentation is in English. Please select a language and then click the Start button." This message changes depending upon the currently pressed language button. At the bottom of this screen is a button with the word "Start".Again,this word changes dependent upon the language button pressed. If there is only one language, the first screen appearing after the insertion of the Voter Access Card will have a line of text stating: "Instructions to Voters"followed by: • "To vote for a candidate of your choice, touch the box next to the candidate for whom you desire to vote until a red .X. appears. • If you desire to change your vote,re-touch the box selected then touch the box next to the candidate of your choice. • To move forward in the ballot touch the word Next to move back touch the word Previous. • You may change or Review your ballot until you touch Cast Ballot." Below this section is a message stating: "TO BEGIN VOTING,TOUCH THE START BUTTON." (Note that for multiple language ballots, this instructional screen will appear immediately after pressing the Start button on the language screen.All text will be translated into the appropriate language.) c. If voting for a write-in candidate is an option within a race, a write-in choice will fall at the end of the candidate list within that race. When the voter touches the write-in choice, a screen appears with the following instructional text above a large touch keyboard on the screen: • "Write-In Instructions: • Touch the letters that make up your write-in candidate. • Touch the"Backspace"key to correct any errors. • Touch"Record Write-In"to finish your selection." Below the touch keyboard are two buttons,the"Record Write-In"button and a"Cancel"button. (4)(a) Following the instructions, the headings, office titles, and candidates shall be listed in the order provided in Section 101.151, F.S. Nonpartisan offices shall appear following the partisan offices and before constitutional amendments or other issues. Nonpartisan offices shall be preceded by the heading"Nonpartisan" and shall appear in the following order: Justice of the Supreme Court, Judge of a District Court of Appeal, Circuit Judge, County Judge, and School Board Member. Unless otherwise provided by county charter,if a county elects other county officers on a nonpartisan basis,the order of those offices shall be the same as the order in Section 101.151,F.S.,for partisan offices and shall follow school board member.Nonpartisan municipal candidates shall be listed following nonpartisan county candidates, followed by nonpartisan special district candidates. Partisan municipal candidates shall be listed following the partisan county candidates, followed by partisan special district candidates. County, municipal, and special district issues shall appear following constitutional amendments. (b)The headings and office titles shall be in all caps bold.The name of the candidate shall be in upper and lower case. (5)Under each office title, including joint candidacies, shall be printed"(Vote for One)". In races where more than one vote is permitted,there shall be printed"(Vote for no more than(enter#to be elected))". (6)The marking space for a voter to mark a choice shall be as follows: (a)For Diebold Accuvote,on the left of the voter's choice. (b)For ES&S and Sequoia Optech,on the right of the voter's choice. (c)For ES&S M-100, 150,550,and 650 on the left of the voter's choice. (d)For Diebold ES 2001 Blended,on the left of the voter's choice. (e)For ES&S iVotronic,on the right of the voter's choice. (f)For Sequoia AVC Edge,on the right of the voter's choice. (g)For Diebold 2003B(Blended)+(Plus Audio), on the left of the voter's choice. (7) When required, the appropriate abbreviation of a party name or no party affiliation shall be to the right of the candidate's name, in all caps. The party abbreviation shall be the abbreviation provided to the supervisors on the official certification of candidates for the election. The party abbreviation shall not be enclosed in parentheses. Party abbreviation shall not be included on primary ballots,unless there is a Universal Primary Contest on the ballot as provided in subsection(12). (8) No candidate race shall appear in more than one column on an optical scan ballot or on more than one screen of a touchscreen ballot.The issue choices of yes and no shall not be split between columns or pages. (9)On optical scan ballots, when races and/or questions are printed on both sides of the ballot,the words"VOTE BOTH SIDES OF BALLOT"shall be printed on the bottom of the front and back of the ballot in all caps bold. (10) For counties offering multiple languages on touchscreen ballots, the language choice may appear prior to the first ballot screen. (11) For constitutional amendments, the number designation, constitutional amendment and Article and Section shall be in all caps bold. The ballot title for an issue shall be in upper and lower case bold. The substance of the issue and the financial impact statement,if provided,shall be in upper and lower case,following by the choices of YES and NO in all caps. (12)When a primary includes one or more Universal Primary Contests as defined in Rule 1S-2.002, F.A.C.,the following shall apply: (a)The words"Universal Primary Contest" shall appear underneath the office title of the Universal Primary Contest and before the"(Vote for ...)"text. (b) The names of all candidates for all partisan offices, including candidates for the Universal Primary Contest, shall be displayed with an appropriate abbreviation of party name. (13) Each supervisor of elections shall determine the font sizes based on the number of candidates and races on the ballot. However,on optical scan ballots no font size shall be smaller than 10 point and on touchscreen ballots,the ballot image displayed to the voter on the screen must measure no less than 10 point. On any ballot, each category shall have consistent font sizes. For example,if one candidate's name is in 10 point type,the names of all candidates on that ballot shall be in 10 point type. (14)(a) If in any election there are more candidates than will fit in one column or screen, or a candidate's name is so long that the party abbreviation will not fit to the right of the candidate's name, or a candidate's name is too long to fit on one line in the minimum font size, the supervisor of elections shall certify that fact and provide a copy of the proposed ballot to the Division of Elections for approval prior to the printing or distribution of the ballot. The Division shall verify that the facts and circumstances provided by the supervisor require deviation from the rule prior to giving its approval. (b) Likewise, if circumstances dictate that a supervisor of elections must deviate from the rule in any other respect, the supervisor must certify the facts of the circumstances and obtain the approval of the Division of Elections prior to the printing or distribution of the ballot. The Division shall verify that the facts and circumstances provided by the supervisor require deviation from the rule prior to giving its approval. (15)All other specifications for ballots must comply with the Florida Election Code. (16) A primary ballot for the Diebold Accuvote voting system shall be substantially in accordance with Form DS-DE 30, eff. 7/04, hereby incorporated by reference and available from the Division of Elections. A general election ballot for the Diebold Accuvote voting system shall be substantially in accordance with Form DS-DE 31, eff. 7/04, hereby incorporated by reference and available from the Division of Elections. (17) A primary ballot for ES&S Optech voting system shall be substantially in accordance with Form DS-DE 32, eff. 7/04, hereby incorporated by reference and available from the Division of Elections. A general election ballot for ES&S Optech voting system shall be substantially in accordance with Form DS-DE 33,eff. 7/04,hereby incorporated by reference and available from the Division of Elections. (18) A primary ballot for Sequoia Optech voting system shall be substantially in accordance with Form DS-DE 64, eff. 7/04, hereby incorporated by reference and available from the Division of Elections. A general election ballot for Sequoia Optech voting system shall be substantially in accordance with Form DS-DE 65,eff. 7/04,hereby incorporated by reference and available from the Division of Elections. (19)A primary ballot for ES&S M-100, 150,550 and 650 voting systems shall be substantially in accordance with Form DS-DE 16, eff. 7/04,hereby incorporated by reference and available from the Division of Elections. A general election ballot for ES&S M- 100, 150, 550 and 650 voting systems shall be substantially in accordance with Form DS-DE 17, eff. 7/04, hereby incorporated by reference and available from the Division of Elections. (20) A primary ballot for Diebold ES 2001 Blended touchscreen voting system shall be substantially in accordance with Form DS-DE 44, eff. 7/04, hereby incorporated by reference and available from the Division of Elections. A general election ballot for Diebold ES 2001 Blended touchscreen voting system shall be substantially in accordance with Form DS-DE 45, eff. 7/04, hereby incorporated by reference and available from the Division of Elections. (21)A primary ballot for ES&S iVotronic touchscreen voting system shall be substantially in accordance with Form DS-DE 22, eff. 7/04, hereby incorporated by reference and available from the Division of Elections. A general election ballot for ES&S iVotronic touchscreen voting system shall be substantially in accordance with Form DS-DE 23, eff. 7/04, hereby incorporated by reference and available from the Division of Elections. (22)A primary ballot for Sequoia AVC Edge touchscreen voting system shall be substantially in accordance with Form DS-DE 46, eff. 7/04, hereby incorporated by reference and available from the Division of Elections. A general election ballot for Sequoia AVC Edge touchscreen voting system shall be substantially in accordance with Form DS-DE 47, eff. 7/04, hereby incorporated by reference and available from the Division of Elections. (23) A primary ballot for Diebold 2003B (Blended) + (Plus Audio) touchscreen voting system shall be substantially in accordance with Form DS-DE 78, eff. 7/04, hereby incorporated by reference and available from the Division of Elections. A general election ballot for Diebold 2003B Blended + (Plus Audio) touchscreen voting system shall be substantially in accordance with Form DS-DE 79,eff. 7/04,hereby incorporated by reference and available from the Division of Elections. (24)The ES&S iVotronic audio ballot must provide the following: (a)Instructions. 1.Language instructions shall be as follows: a.If English is the only language available,the message"Press the diamond button to begin voting" shall be given. b. If multiple language choices are available, the following message shall be given: "Please select your ballot language. Select your choice by using the down arrow button. Press the diamond shaped select button to confirm your choice." This message is to be read audibly in each language allowed as a choice until a selection is made. 2.General instructions shall be as follows: a. "To repeat these instructions press the up arrow. You will be notified at completion. The up and down arrows control your movement from contest to contest and candidate to candidate. To vote a contest you must press the diamond shaped button to enter the candidate or issue selections.Moving up or down through the candidates or issues will bring you back to the contest titles. When you arrive at a contest, the selections for that contest will be repeated to you so that you may review your ballot at any time. If you wish to change your selection, you may do so by moving to your new choice and selecting it by pressing the diamond button. To begin voting,press the diamond button. End of instructions." b.After the instructions are given and the diamond button is pressed,the system will read the election title,date,and number of contests on the ballot (election header). Following the election header,the system will read the contest number, office title,vote for statement,and number of candidates. c. After the diamond button is pressed to enter a contest, the system shall read the candidate number, name of candidate, party designation,if required,and an indication of whether or not the candidate has been selected by the voter. 3.Write-In Instructions: When a voter has selected to write in the name of a candidate,the following message shall be given: "Use the down arrow button to begin the alpha selection process. Press the diamond button to select a letter. Navigate using the up and down arrow buttons. When complete, arrow down until you reach the return to ballot message at the end of the alphabet. Press the diamond button.The write-in candidate will be read to you.To accept the write-in candidate,press the diamond button." 4. If the voter tries to overvote a contest,the following message shall be given: "You have already checked the maximum candidates in this contest. If you wish to select a different candidate in this contest, you must first uncheck a previous selection by moving to that candidate and pressing the diamond button." 5.At the end of the ballot,the following message shall be read: "You have reached the end of the ballot. To continue, change or review your ballot, press the diamond button. To review your selections, use the up and down arrow buttons to move through the contest titles to hear your selections. To cast your ballot now, press the vote button located at the top center of the voting terminal." 6.When a constitutional amendment is on the ballot the message shall read as follows: "Constitutional amendment number . Proposing an amendment to Article , section of the Florida Constitution." a.The ballot title will then be read. b.Following the ballot title,the substance of the amendment shall be read. c.Following the substance of the amendment,the financial impact statement, if provided, shall be read,followed by the choices of Yes and No. (b) All audio ballot instructions and information shall be given without voice inflection which either favors or disfavors any potential selection. (c)The order of the audio ballot shall be the same as the order of the touchscreen ballot. (25)The Sequoia AVC Edge audio ballot must provide the following: (a)Instructions. 1. Language instructions shall be as follows: If multiple language choices are available,the following message shall be given: "Press the round red select button to begin language selection. Press the triangle shaped green next and yellow back buttons to review language selections and then press the round red select button for your selected language."This message is to be read audibly in each language allowed as a choice until a selection is made. Once the language is chosen, the system will announce the selection, for example,"English selected." 2. General instructions shall be as follows: a. After the selection of the language is complete, or if English is the only language available, the following message of general instructions will be given, "Press the round red select button at any time to exit this recording. Use the triangle shaped green next and yellow back buttons to move back and forth through the choices for each contest. When you hear the desired choice,press the round red select button to select your choice or deselect your choice. For write-in choices, use the triangle shaped green next and yellow back buttons,and the round red select button to spell out the desired choice. Press the square blue help button at any time to hear help instructions." b. After the general instructions are heard, then the first contest title information is read. After hearing the contest title, further instructions are available by pressing the blue help button. Upon pressing the blue help button,the following message shall be read, "Use the triangle shaped green next and yellow back buttons to move through the contests and propositions. Press the round red select button to enter a contest and make choices. When you are finished, move to the end of the contest list to the choice "Done Voting"and select that." c. After the general instructions and contest help instructions are read,the following message shall be read,"Press the SELECT button to begin voting in the first contest." After pressing the SELECT button, the following message will be added, "Please wait while the list of choices is read. After the list is read,press the green triangle shaped next button to hear the first choice. Repeat this action until you hear the choice you want then press the round red select button to select your choice." d. After the instructions and helps are given, and the red select button is pressed, the system will read the election header information,and then proceed to read the contest number,office title,vote for statement and the number of candidates. e. After entering a contest, the voter may obtain instructions on the process of making a selection within a contest,by pressing the blue help button. The system shall read,"Use the triangle shaped green next and yellow back buttons to move through the list of candidates.Press the round red select button to make choices or to cancel them. At the end of this list of candidates is a selection to exit to the next contest." When a contest is fully voted, the system will read, "This contest is fully voted. Press the round red select button to exit this contest and hear the title of the next choice." If there are additional contests,the next contest title information will be read. 3.Write-in Instructions: a. When a voter has selected to write in the name of a candidate,the following message shall be read, "Use the triangle shaped green next and yellow back buttons to move through the alphabet. Press the round red select button to select letters and spell the desired name. At the end of the list of letters are numbers,punctuation and choices to enter or cancel your choice." b. To review the write-in name entered, the voter shall use the triangle shaped green next and yellow back to get to a message that shall read,"Review this write-in entry." After pressing the red select button,the following message shall be read,"The write-in entries you have made are....", after which the write-in letters,entered by the voter,shall be read.After completing the review of the name of the write-in candidate, the following message shall be read, "Press the round red select button to confirm the write-in selection." 4.If the voter tries to overvote a contest,the following message shall be given: "This contest is fully voted. To select this choice you must first deselect the choice you have already made. If you need help, press the square blue help button for instructions for deselecting a choice." a. During this review process the contest title information shall be given, along with one of the following messages, "This contest is fully voted.""This contest is not fully voted.""No selections have been made in this contest." Any and all candidates that have been selected shall be read for the voter's review. b. After the review is completed, the voter shall press the green next button to complete voting, and the following messages shall be given, "Voting is completed. Press the round red select button if you are done voting. Otherwise use the triangle shaped green next and yellow back buttons to move back to the ballot." c. If,after the voter presses the red select button to indicate that voting is done,there are any undervoted contests,the following message shall be given, "You have not made all the choices you are entitled to. To return to the ballot press the left pointing yellow triangular back button. To cast your ballot as it is,press the round red select button." d. If the voter has not made any choices on the ballot (a blank ballot), the following message shall be given, "You have not made any selections on this ballot." 5. At the conclusion of the review process, the following message shall be given, "Press the round red select button when you are finished,this will record your vote. Press the yellow back button to return to the ballot." a. After pressing the red select button, the following message shall be given, "Press the round red select button. Your vote is being recorded." b.After the vote has been recorded,the following message shall be given,"Thank you for voting." 6. When a constitutional amendment is on the ballot the message shall read as follows: "Constitutional amendment number . Proposing an amendment to Article ,section of the Florida Constitution." a.The ballot title will then be read. b.Following the ballot title,the substance of the amendment shall be read. c.Following the substance of the amendment,the financial impact statement,if provided, shall be read, followed by the choices of Yes and No. (b) All audio ballot instructions and information shall be given without voice inflection which either favors or disfavors any potential selection. (c)The order of the audio ballot shall be the same as the order of the touchscreen ballot. (26)The Diebold 2003B(Blended)+(Plus Audio)audio ballot must provide the following: (a)Instructions. 1.Language instructions shall be as follows: If multiple language choices are available,the following message shall be given: "Using the attached standard telephone keypad,for English press 1..." This message is repeated in each available language with the prompt to press the correct number corresponding to the languages available.This message repeats until a language choice is made. 2. General instructions shall be as follows: a.After the language choice is made or if there is only one available language,the following three messages will be presented: (i)A welcome statement that familiarizes the voter with the voting interface: "Welcome to the Audio Ballot Voting System. The Audio Ballot uses a standard 12 key telephone type keypad to navigate through the ballot and make voting selections. The 5 key has a raised feature to help you maintain orientation with the keypad. To adjust the volume, use the rotary switch on the headphone cord. Complete instructions are provided to guide you through the audio ballot, please follow them carefully. At the end of the ballot,you will be prompted to cast your ballot or review it." (ii)A set of repeatable help instructions that shall be as follows: "The main navigation keys are the 4, 5, and 6 keys. Pressing the 4 key moves you backward through the ballot to the previous candidate or race.Pressing the 5 key selects or unselects a candidate. Pressing the 6 key moves you forward through the ballot to the next candidate or race. If you want to change your vote, you must first unselect your current choice by moving to the chosen candidate and pressing the 5 key. Other keys will be explained when needed. The 0 key is the help key. If you get confused during the voting process pause and wait for instructions or press the 0 key for help." (iii)And a prompt to begin voting: "If you are voting an audio only ballot please ensure the textured secrecy panel is covering the display. To begin voting, press 6." These messages repeat until the 6 key is pressed. b. After the 6 key is pressed,the election header is read,followed by the header for the first race,the number of candidates and write-ins in the race,a message indicating whether any votes have been cast in the race, and the first candidate's name is read. Then instructions prompt the voter: "To vote for"first candidate name, "Press 5. To advance to the next candidate,press 6." This message repeats until either the 5 or 6 key is pressed. c.When a selection is made for a candidate,a message informs the voter: "You have chosen to vote for"name, "To cancel your vote for"name, "press 5". "To advance to the next candidate or selection (or race if the last candidate in the race is selected), press 6." "To return to the previous candidate or selection (or race if the first candidate is selected),press 4." d. If the voter does not respond or pauses for directions,the race header is repeated to the voter, and a statement declaring either "This race is fully voted"or"You may cast more votes in this race"or"No votes have been cast in this race" is read to the voter. e. If a voter attempts to exit a race without fully voting the allowed number of candidates, they are prompted to confirm their desire to undervote the race: "You have chosen to under-vote this race. To confirm,press 9.To continue voting,press 1." Pressing 9 takes the voter to the next race.Pressing 1 allows the voter to resume voting the undervoted race. 3.Write-in Instructions: a.When a voter has selected to write in the name of a candidate,the following three messages will be presented: (i)First a welcome message that gives an overview of voting for a write in: "Please listen carefully to all instructions while voting the write-in candidate. Use the keypad to spell the candidate's name. As you press keys to enter a letter, the system will speak each letter back to you and prompt you to either accept it, delete it, or enter a different letter.Letters are assigned to the keys according to the standard telephone layout." (ii)Followed by a repeating set of instructions: "To enter letters of the candidate's name,press keys 2 through 9. Pressing a key multiple times will cycle though the letters assigned to that key.For a space between names,press 1.These instructions will repeat." (iii)Followed by a prompt that allows the voter to leave the write in portion of the ballot: "To cancel your write-in vote,press star." These messages will repeat until the voter either selects a letter or presses star to exit the write in portion of the ballot. b.As the voter makes letter selections,the system announces: "You have entered"letters,"To accept"letter,"Press zero.""To delete" letter,"Press star." c. As each letter is accepted by pressing the zero key, the list of letters entered is presented, then the write-in instructions on how to choose a letter repeat,then a prompt on how to delete the most recently entered letter is given: "To delete" letter,"Press star."Then a prompt instructs: "To accept your entries and vote for this write-in candidate,press zero." d.Pressing zero to accept the write-in vote brings the voter to a confirmation prompt: "You have chosen to vote for" "Write-in candidate" letters. "To confirm, press 9. To continue entering write-in candidate,press 1." "To cancel your write-in vote, press star." Pressing the star key cancels the write-in vote. Pressing 9 accepts the spelling and takes the voter out of the write-in portion of the ballot. 4. If the voter tries to overvote a contest, the system will sound an error beep and the selection will not be allowed. The system will cycle through the messages: "To advance to the next candidate or selection(or race if the last candidate in the race is selected), press 6.""To return to the previous candidate or selection(or race if the first candidate is selected),press 4."Then the race header is repeated, and a statement declaring "This race is fully voted" is read to the voter. This cycle continues until the voter follows directions and presses either the 6 key to advance,the 4 key to return,or the zero key for help. 5.At the end of the ballot,the following message shall be read: "You have reached the end of the ballot. To cast your ballot,press 9.""To return to the previous candidate,press 4." When the voter presses 9 to cast the ballot, another confirmation prompt is presented, giving the voter the option to go back and review the ballot from the beginning: "You have chosen to cast your ballot,to confirm press 9.To review your ballot starting at the first race,press 4." 6.When a constitutional amendment is on the ballot,the message shall read as follows: "Constitutional amendment number . Proposing an amendment to Article , section of the Florida Constitution." a.The ballot title will then be read. b.Following the ballot title,the substance of the amendment shall be read. c. Following the substance of the amendment,the fiscal impact statement, if provided, shall be read, followed by the choices of Yes and No. (b) All audio ballot instructions and information shall be given without voice inflection which either favors or disfavors any potential selection. (c)The order of the audio ballot shall be the same as the order of the touchscreen ballot. (27) All forms referenced in this rule may be obtained from the Division of Elections, Room 316, R.A. Gray Building, 500 South Bronough Street,Tallahassee,Florida 32399-0250,(850)245-6200. Rulemaking Authority 101.151(8)FS.Law Implemented 101.151(8)FS. History—New 6-6-02,Amended 9-8-02, 7-12-04.