HomeMy WebLinkAboutOrdinance No. 08-2015 ORDINANCE NO. 08-2015
AN EMERGENCY ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF CAPE CANAVERAL, BREYARD 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.08-2015
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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.08-2015
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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.08-2015
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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 purpose 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 fmds 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 fmds 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 fmds 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.08-2015
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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 to fill the two vacant councilmember seats shall be conducted on a
single ballot in accordance with the procedures and requirements set forth herein. The provisions
of section Section 2-26 of the City Code shall not apply. The election of the mayor shall be a
separate ballot as originally scheduled. The candidate receiving the greatest number of votes on the
ballot to fill the two vacancies shall be elected to the office of a councilmember to serve the
unexpired two (2) year term of Mayor Pro Tern Hoog's current seat. The candidate receiving the
second-greatest number of votes on the ballot to fill the two vacancies 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. Further, in the event that only two persons qualify
for the election to fill the two vacancies, the two candidates shall draw lots on November 17, 2015
to determine which candidate will serve the unexpired two year term and the loser serving the
unexpired one year term.
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 remain the same. However, the qualifying period for the election to fill the two vacant
councilmember seats shall commence on Monday, August 10, 2015 at 9:30 a.m. and end at 5 p.m.
on Thursday, August 27, 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
City of Cape Canaveral
Ordinance No.08-2015
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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
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
TWO CITY COUNCIL VACANCIES
(Vote for Two)
Candidate Name
Candidate Name
Candidate Name
Candidate Name
(b) 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. Specifically, and without limitation, the provisions set forth in
Section 2-26 of the City Code shall not apply regarding rolling the mayor and two vacancy elections
onto one single ballot. 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.
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,
City of Cape Canaveral
Ordinance No.08-2015
Page 6 of 7
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 61' 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. • .
,. „c G 1 4 ye 24%
ADOPTED,by at least tthirds vote of the City Council of the City of Cape Canaveral,
Florida, this 7th day of Augnst 3 5.
aeg,C1\4
= CR.4.....QA.Q.,
; �-- tA L Rocky Randels,mayor
ATTESi _ For Against
1y} A ' -c`,\1cJTi r John Bond X
ANG A APPERS , Bob Hoog X
City Clerk,MMC
Buzz Petsos X (Motion)
Rocky Randels X
Betty Walsh X (Second)
Approvo ) legal form and sufficiency
for t# ape Canaveral only by:
ANTHONY A.GARGANESE,City Attorney
City of Cape Canaveral
Ordinance No.08-2015
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