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HomeMy WebLinkAboutMinutes 09-03-1992 Special CITY COUNCIL SPECIAL MEETING September 3, 1992 A Special Meeting of the Cape Canaveral City Council was held on September 3, 1992, at the City Hall Annex, 111 Polk Avenue, Cape Canaveral, Florida. The meeting was called to order at 7:00 P.M. by Mayor Salamone. ROLL CALL: Mayor Joy Salamone Present Mayor Pro Tem John Porter Present Councilmember Andy Kedzierski Absent Councilmember Rocky Randels Present Councilmember Ann Thurm Present Acting City Manager Bennett Boucher Present City Attorney John Kancilia Present City Clerk Faith Miller Present BUSINESS: 1 . Discussion Re : Consideration of legal action pertaining to the petition on nepotism. Mrs. Thurm stated that a petition had been presented to the City Council at the previous meeting containing over 400 names of individuals who were for the Charter change that the Council had failed to pass for referendum. The petition dealt with what was referred to as nepotism. Mrs. Thurm stated that she had found many instances of fraud, decent, lies, deception and purjury in the petition. She felt that the City Council should take legal action to stop the petition. Mrs. Thurm explained that the issue was not a personal thing. She stated that after November she would not be a member of the City Council. Mrs. Helen Filkins distributed a list of reasons why she felt the petition was not legal and she proceeded to explain same. She felt that the intent of the provisions included in the City Charter for initiative petitions pertained to both ordinance changes and charter amendments. Mrs. Filkins explained that she was against the petition because of the word "nepotism" . She felt that nepotism was not the issue addressed by the petition. Mrs. Thurm stated that she believed it was possible to instruct the City Attorney to send a letter to the Elections Office in Titusville stating that the Council did not want the issue on the ballot. She felt the petition could be stopped immediately. Mr. Kancilia stated that he was not aware of the ability to stop the petition. He stated that the proponents of the petition had an interest in seeing that the petition be submitted to the electorate and the opponents had an interest in seeing that the petition not be submitted to the voters. He did not believe that the City Council by a letter could cause the petition to be unlodged. Mr. Charles Stenglein stated that there were no personal grievances against any member of the City Council and he spoke in favor of the petition. He felt that it was beneficial to the City not to have family members on City advisory boards. Mayor Salamone stated that regardless of how the City Council felt, she felt that the constitution allowed the citizens the right to petition. She stated that it was not in the City's best interest to stop the petition and that if another citizens ' group wished to oppose the petition it was their right to do so. City of Cape Canaveral, Florida City Council Special Meeting September 3, 1992 Page 2 Mr. George Hutchinson stated that anyone involved in politics knew that the citizen had a right to petition. He stated that the citizens should be allowed to vote yes or no on the issue. He stated that the petition was not a personal matter and that the volunteers were admired for their City involvement. He spoke in favor of maintaining the highest degree of ethics. 110, Mrs. Helen Filkins stated that she was not opposed to referendums. She stated that she strongly supported the petition process unless the referendum was deceptive. She stated that she had spoken to the Supervisor of Elections and that the City was legally responsible, and not the State, and that the Supervisor of Elections had said that it would only take a letter from the City Attorney which stated that the petition did not abide by all the City laws. The meeting was adjourned at this point to begin the budget hearing previously scheduled. The meeting was reconvened after the public hearing on the budget at 7 :48 P.M. Mrs. Thurm read several comments told to her by individuals who had signed the petition. She stated that several individuals wanted to remove their names from the petition. Motion by Mrs . Thurm, seconded by Mr. Randels to authorize John Kancilia to send a letter to the Supervisor of Elections office asking that the petition be stopped as it was not in the best interest of the City. Mr. Lamar Russell suggested that the letter include a statement that the petition did not meet all the laws of the City. Mr. Randels stated that there may be a better way to handle the situation and he hesitated to ask the City Attorney to perform an investigation. He questioned whether or not it would be worthwhile to address a letter to the State Attorney's office questioning the rules and regulations regarding petitions. Mr. Kancilia stated that this was a very complicated subject. He stated that the following was his honest opinion. He stated that he had no personal or professional stake in this issue. He stated that he had reviewed what was the state of the law and what he thought the Council could or could not do in this situation. Mr. Kancilia stated that Mrs. Filkins had handed out a memorandum which raised various legal issues. He stated that the only reference in the Cape Canaveral City Charter to initiative petitions occurred in Article XXI, Sections 12-16. He stated that the City Charter referred to Initiative Petition for Ordinance. The petition referred to a Charter Amendment. He stated that he had been told that the intent was for the section to address City Charter amendments as well . In the law the intent was what the words meant and not what the writer may have meant. He stated that lawyers interpret legislative pronouncements on an objective standard that was fairly what the words mean and he could find no intendment that these sections applied to charter amendments. He stated that if Council was not satisfied with his opinion they could seek a second opinion. Since there were no specific provisions regarding the initiative petition for a charter amendment, then none could be applied. The only requirement would be the State Statutes, Section 166 . 031 which only required signatures of 10% of the qualified electors. There were no other requirements regarding witnessing and notarizing of petitions. City of Cape Canaveral, Florida City Council Special Meeting September 3 , 1992 Page 3 Mr. Kancilia stated that there was a Florida constitutional provision which stated that amendments to the Florida State Constitution on an initiative could contain only one subject. The City could control the procedure for referendums and initiatives as it affected the City Charter, but because the State had adopted a single subject standard did not mean that it applied to City 11, Charter amendments. Mr. Kancilia stated that as to the improprieties regarding the execution of the petition (false notaries, misrepresentations) were all questions of fact. The difficulty with the City Council and the City Attorney becoming involved would be that the Council and the Attorney would be asked to decide who was or was not telling the truth. If the City utilized its resources to take one side or the other in this case, it would put the other side at a disadvantage. Cities were prohibited from utilizing public funds for political purposes. Mr. Kancilia stated that the State of Florida called this issue "nepotism" as well . He stated that prior to 1989, the State Statute which was now Section 112. 3135, was contained in Florida Statutes, Chapter 116. Chapter 116 was under the jurisdiction of the Attorney General and any request for an advisory opinion must be submitted to the Attorney General. In 1989, the particular statute in question was moved to Chapter 112 which fell under the jurisdiction of the Commission on Ethics. Up until 1989, the Attorney General issued opinions relating to this statute. Since 1989, the Commission on Ethics had issued opinions. In one Attorney General opinion issued in 1983, the Attorney General held that it did not violate the Statute when the Mayor under the Town Commission system appointed the son of a Commissionmember to a salaried position and the Commission approved it . In other cases, the Attorney General had held that the City Council could not appoint a relative of a Councilmember to a position. In the Commission on Ethics ' opinion No. 90-58, it clearly stated that the City Council was prohibited from appointing the husband of a Councilmember to the Land Development & Regulatory Agency. The opinion further stated that this applied regardless of whether the appointee would receive any compensation for service on the agency. On June 16, 1992, the Court of Appeals for the Third Circuit (South Florida) held that the anti-nepotism law was applicable to appointments for service on unpaid boards; however, the law did not prohibit the appointment of a person to a City Board of Adjustment if that person 's father-in-law, who was a member of the City Commission that appoints the Board, recuses himself and did not advocate the appointment. However, there was a case in 1989 in the First Circuit in Tallahassee, where a civil service commission promoted the brother of the Sheriff and the Sheriff recused and nothing to do with the deliberations or the appointment and the Court held that the Sheriff 's brother could not be appointed because he worked for the other brother. He stated that the entire issue was very complex and would not be resolved by his opinion alone. Mr. Kancilia stated that the City could regulate the area of conflict of interest, nepotism, etc. However, to the extent that the State regulated this area the City was preempted from enacting a conflicting regulation, ordinance or charter. Mr. Kancilia stated that if in fact there were controlling ordinances, charter provisions and statutes which required a particular manner in which the petition should be prepared and submitted, it would be his duty and the City 's duty not to present City of Cape Canaveral, Florida City Council Special Meeting September 3 , 1992 Page 4 the petition to the Supervisor of Elections until those requirements were met. In this particular case, the requirements for an initiative petition for ordinance did not apply to charter amendments. Therefore, there was no violation with the procedural method in which the petition had been presented. It was his opinion that he could not write a letter stating that the 10 procedural requirements had not been met. Mr. Porter stated that his mother would resign from the Code Enforcement Board. He stated that he had advocated improving the City 's reputation as a quality City. He stated that he was extremely sorry to see Mr. Kedzierski leave the City Council. He stated that he was extremely supportive of referendum issues . He stated that the volunteers were a valuable asset to the City. Mr. Porter stated he had hoped that the petition would have been withdrawn. He stated that the wording of the petition was an injustice, but the concept was good. Mr. Randels stated that there were no ethical problems in actual practice with any of the existing Boardmembers. He felt that the City Council could come up with a more adequate to address the situation. Mrs. Thurm stated that the City could send a letter to stop the petition. She wanted to avoid any more embarrassment to the City. She felt that the petition was not handled properly and she explained her reasons for same. Mr. Art Berger asked Council to make a decision and to stand by what they felt was right. There was further discussion among Council regarding the petition. Mrs. Filkins stated that she felt the petition was not legal and it was a bad amendment because it was worded incorrectly. Mrs. Thurm stated that she did not feel that the City should expend any more money for a second legal opinion, but that the City should try to stop the petition. Mayor Salamone stated that the City Attorney could not write the letter to Shirley Bacchus because he did not feel that it was legally or procedurally correct. Mr. Porter stated that he hoped the petitioners would take the petition back to allow the Council the time to provide more appropriate wording. (IP Motion failed with members voting as follows: Mayor Salamone Against Mayor Pro Tem Porter Against Councilman Randels For Councilwoman Thurm For There being no further business, the meeting adjourned at 8 :50 P.M. Approved this 15th day of September , 1992. 0, 4 4i. 4/ILA& Jots C. Salamone, MAYOR ATTEST: fI' • • / • aith G. Miller, Ci Clerk