HomeMy WebLinkAboutcocc_council_mtg_packet_20210727_specialCITY OF CAPE CANAVERAL
CITY COUNCIL SPECIAL MEETING
City Hall Council Chambers
100 Polk Avenue, Cape Canaveral, Florida 32920
AGENDA
July 27, 2021
1:00 P.M.
For those that cannot attend the Meeting and wish to submit a public comment:
Email your comment to CityClerk@CityofCapeCanaveral.org by noon the day of the Meeting.
To stream the Meeting at home: Please visit www.cityofcapecanaveral.org/city_meetings
CALL TO ORDER
PLEDGE OF ALLEGIANCE
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 11:15 p.m. - 1:45 p.m.
THIS IS A SPECIAL MEETING. THEREFORE, PURSUANT TO SECTION 2-57(a)(2), THIS
AGENDA IS LIMITED TO THE FOLLOWING ITEM FOR DISCUSSION AND ACTION.
1. Discussion and any action deemed necessary related to the 2021 Municipal Election and the
Method of filling two City Council vacancies, which will occur on November 16, 2021, as a result
of Council Members Brown's and Morrison's decision to resign to run.
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 [(321) 868-1220 x207 or x206] 48 hours in advance of the meeting.
CITY OF
CAPE CANAVERAL
CITY COUNCIL SPECIAL MEETING • JULY 27, 2021
AGENDA ITEM SUMMARY • ITEM # 1
Subject: Discussion and any action deemed necessary related to the 2021 Municipal Election and
the Method of filling two City Council vacancies, which will occur on November 16, 2021, as a result
of Council Members Brown's and Morrison's decision to resign to run.
Department: City Clerk's Office
Summary: Pursuant to Section 2.02 of the City Charter, the Mayor's seat is open for election of a
new three (3) year term on November 2, 2021. In accordance with Section 2.02(d), the newly elected
Mayor shall assume the duties of office at the next regular meeting of the city council following
their election, which will be at the regular meeting on November 16, 2021. City Code Section 26-3.
- Qualifying Period, states "Candidates for the offices of the mayor and city council shall qualify and
pay the applicable qualifying fee and assessment during regular business hours of the city at any
time after 12:00 noon of the 92nd day prior to the municipal election and no later than 12:00 noon
of the 81 st day prior to the date of the municipal election." With the General Election scheduled for
November 2, 2021, the Qualifying dates/times are from twelve noon, August 2, 2021 through twelve
noon on August 13, 2021.
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 position
of Mayor. Both Council Members Brown and Morrison submitted resignations (Attachment 1) on
Friday, July 23, 2021 with an effective date of November 16, 2021, which is the date that the new
Mayor will assume office in accordance with the City Charter.
A similar scenario happened in 2015. On August 5, 2015, City Attorney Garganese rendered a legal
memorandum (Attachment 2) which was shared by City Manager Morley with the current Mayor
and Council on July 25, 2021. Because qualifying for the Mayoral Election commences August 2,
2021 and the City Council's next regular meeting is scheduled August 17, 2021, 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. In short, the City Council should decide whether
there is sufficient time to consider the November 2nd General Election to be defined as an
"intervening General Election", thereby authorizing a vote at General Election for the two (2)
vacancies.
To prepare for any action the City Council deems necessary, City Attorney Garganese has prepared
Draft Emergency Ordinance No. 34-2021 (Attachment 3). The Emergency Ordinance is only
necessary if City Council determines that an "intervening general election" exists that will allow
sufficient time for the two vacancies to be filled by the voters at the November 2, 2021 general
election per Section 2.06 of the City Charter. If the City Council determines otherwise or does not
achieve a required 2/3 majority vote, no action is required and the two vacancies will be filled by
majority vote of the City Council when the vacancies occur on November 16, 2021 in accordance
City of Cape Canaveral
City Council Special Meeting • July 27, 2021
Agenda Item # 1
Page 2 of 2
with Section 2.06 of the City Charter. In light of the previous 2015 similar situation, the emergency
Ordinance has been prepared to allow the City Council to take immediate action either way.
Should the Council adopt Draft Emergency Ordinance No. 34-2021, to fill the two (2) vacancies by
General Election, then it would be prudent to use the same Qualifying Period for both the Mayoral
and Council Vacancy races, otherwise the City will incur additional, unknown expense.
The issues before the City Council are to decide whether to adopt Draft Emergency Ordinance No.
34-2021, which would fill the two (2) vacancies by General Election or not adopt the Ordinance and
appoint individuals to fill the vacated seats within 90 days of the effective date of the resignations.
The Brevard County Supervisor of Elections Office Staff have advised the last date to receive
candidate names for ballots is Monday, August 16, 2021.
Submitting Department Director: Mia Goforth Date: 07/26/21
Attachments:
1) Resignation Letters from Council Members Brown and Morrison
2) Draft Emergency Ordinance No. 34-2021;
3) City Attorney's August 5, 2015 legal memorandum.
Financial Impact: Staff time and effort to prepare this agenda item; as of yet unknown costs
charged by the Brevard County Supervisor of Elections Office, beyond the current estimate of
$28,000 for running the Election of Mayor, scheduled for Tuesday, November 2, 2021.
Reviewed by Administrative/Financial
Services Director: John DeLeo Date: 07/26/21
The City Manager recommends the City Council take the -following actions:
Discuss and take action deemed necessary related to the 2021 Municipal Election and the Method
of filling two City Council vacancies, which will occur on November 16, 2021, as a result of Council
Members Brown's and Morrison's decision to resign to run.
Approved by City Manager: Todd Morley Date: 07/26/21
Attacment 1
Thursday, July 22, 2021
To Mia Goforth
City Clerk
100 Polk Avenue
Cape Canaveral, FL 32920
Dear Mia
I, Mike Brown, Councilmember for the city of
Cape Canaveral, Florida, hereby submit my
resignation as requied by Florida Statutes
99.012. This resignation will be effective on
November 16, 2021.
Respectfully,
Mike Brown
RECEIVED
JUL 23 2021
By: CCO DL 10A
City Council Member Wes Morrison
City of Cape Canaveral
RECEIVED
JUL 2 3 2021
By: CCO DL 2:49p
Home Office
7640 Ridgewood Avenue
Cape Canaveral, FL 32920
Phone: 321-593-2335
W.Morrison(@CityOfCapeCanaveral.org
July 22, 2021
Mia Goforth
City Clerk
City of Cape Canaveral
100 Polk Avenue
Cape Canaveral, FL 32920
M.Goforth@CityofCapeCanaveral.org
Dear Ms. Goforth,
I, Wes Morrison, City Council Member for the City of Cape Canaveral, Florida hereby submit my
Letter of Resignation as required by Florida Statutes 99.012. This resignation will be effective
on November 16, 2021.
Sincerely,
Wes Morrison
City of Cape Canaveral Council Member
CC:
Office of Governor Ron DeSantis
State of Florida
The Capitol
400 S. Monroe St.
Tallahassee, FL 32399-0001
GovernorRon.Desantis@eog.myflorida.com
Office of FL Secretary of State
State of Florida
R.A. Gray Building
50o South Bronough Street
Tallahassee, Florida 32399-0001
SecretaryofState@DOS.MyFlorida.com
Attacment 2
1 ORDINANCE NO. 34-2021
2
3 AN EMERGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
4 CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; REGARDING THE
5 NOVEMBER 2, 2021 GENERAL ELECTION; DECLARING A SPECIAL
6 ELECTION OF THE ELECTORS OF THE CITY TO FILL TWO PROSPECTIVE
7 CITY COUNCIL VACANCIES DUE TO TWO RESIGN -TO -RUN
8 RESIGNATIONS RECENTLY FILED WITH THE CITY CLERK BY TWO
9
10 MEMBERS OF THE CURRENT CITY COUNCIL; PROVIDING THAT SUCH
11 ELECTION SHALL OCCUR DURING THE REGULARLY SCHEDULED
12 ELECTION FOR THE OFFICE OF MAYOR ON NOVEMBER 2, 2021 IN
13 ACCORDANCE WITH THE CITY CHARTER AND CITY CODE; PROVIDING
14 PROCEDURES FOR GOVERNING THE CONDUCT OF SAID GENERAL
15 ELECTION; PROVIDING FOR CONFLICTS, SEVERABILITY, AND AN
16 EFFECTIVE DATE.
17
18
19 WHEREAS, the City of Cape Canaveral is granted the authority, under Section 2(b), Article
20 VIII, of the State Constitution, to exercise any power for municipal purposes, except when expressly
21 prohibited by law; and
22
23 WHEREAS, the City Council is authorized by Section 166.041 (3)(b), Florida Statutes, and
24 Section 2.14 of the City Charter, to adopt emergency ordinances by 2/3 vote of the City Council in
25 cases when City Council action is expeditiously required to address an emergency situation; and
26
27 WHEREAS, pursuant to Sections 6.01 and 6.03 of the City Charter and Section 2-26 of the
28 City Code, the City is scheduled to conduct a general election to elect a Mayor on November 2,
29 2021; and
30
31 WHEREAS, the qualifying period for the election of Mayor is currently scheduled to
32 commence on Friday, August 2, 2021, and shall continue for a two week period in accordance with
33 Section 26-3 of the City Code; and
34
35 WHEREAS, the Supervisor of Elections has advised the City that the deadline for submitting
36 candidate names for municipal elections held on November 2, 2021 is August 16, 2021; and
37
38 WHEREAS, at least 10 days prior to the commencement of the qualifying period, two sitting
39 councilmembers submitted letters of resignation with a prospective effective date of November 16,
40 2021 pursuant to the requirements of Section 99.012, Florida Statutes ("resign -to -run law"); and
41
42 WHEREAS, in accordance with Section 99.012(3)(f)2., Florida Statutes, the subject offices of
43 the two resigning councilmembers shall be deemed vacant upon the effective date of the
44 resignation submitted by the official in his or her letter of resignation, which in this case will be
45 November 16, 2021; the day that the newly elected Mayor is required to take office as required by
46 the City Charter; and
City of Cape Canaveral
Ordinance No. 34-2021
Page 1 of 7
1
2 WHEREAS, due to the resignations, the City will be required to fill the vacancies created on
3 the City Council for the remainder of the unexpired terms of the two resigning city councilmembers
4 as provided by Section 2.06 of the City Charter; and
5
6 WHEREAS, Section 2.06 of the City Charter generally provides that once the office of a
7 councilmember becomes vacant, the City Council, by majority vote, shall be required to fill the
8 vacancy by appointment until the next general election, at which time the electors of the City shall
9 be required to elect a candidate to fill the vacancies for the remainder of the term or elect a
10 candidate to serve a new three year term based on the City's regular election cycle; and
11
12 WHEREAS, the City Council hereby finds that the appointment powers bestowed upon the
13 City Council by City Charter to fill councilmember vacancies are intended to allow the City Council
14 to fill a vacancy on a temporary basis because the electors have reserved the right to elect a person
15 to fill the same vacancies at the "next general election". See State v. Gamble, 13 Fla. 9 (1869)
16 (construing the power of the Governor to fill a vacancy until "the next election" to mean that the
17 appointment power to fill the office is not for the remainder of the unexpired term and that the
18 power remains with the people); See also, Model City Charter 8th Edition, Section 2.06 Commentary
19 (interpreting similar language to mean "the council shall temporarily fill vacancies until the next
20 general election, when the voters will fill such vacancies for the remainder of the term); and
21
22 WHEREAS, due to the fact that the two letters of resignation were filed with the City prior to
23 the upcoming qualifying period and the November 2, 2021 general election, the City Council
24 finds that there is an "intervening general election" scheduled to occur before the statutorily
25 imposed effective date of the resignations on November 16, 2021, and before the City Council
26 would be authorized by City Charter to temporarily fill the vacancies; and
27
28 WHEREAS, the City Council hereby takes legislative notice of the detailed memorandum of
29 law provided to the City by the City Attorney, dated August 5, 2015 (which the City Attorney has
30 opined for purposes of this Ordinance is still applicable today), and the Florida cases and other legal
31 authority cited therein, for purposes of providing the City Council guidance relevant to interpreting
32 Section 2.06 of the City Charter under these particular circumstances when there is an "intervening
33 general election" which may be appropriate to allow the City electors to fill any vacancies on the
34 City Council prior to the effective date of prospective effective dates of the councilmember
35 resignations which will be the cause of the vacancy; and
36
37 WHEREAS, specifically, the City Council takes notice of Spector v. Glisson, 305 So. 2d 777,
38 782 (Fla. 1974), wherein the Florida Supreme Court held that if ajudicial vacancy is known reasonably
39 in advance of an intervening primary and general election, the vacancy must be filled by election.
40 The Court further stated that "We have historically since the earliest days of our statehood resolved
41 as the public policy of this State that interpretations of the constitution, absent clear provision
42 otherwise, should always be resolved in favor of retention in the people of the power and
43 opportunity to select officials of the people's choice, and that vacancies in elective office should be
44 filled by the people at the earliest practical date." In other words, the Florida Supreme Court has
45 emphasized that there is a strong preference for elections in Florida:
City of Cape Canaveral
Ordinance No. 34-2021
Page 2of7
1
2 We feel that it necessarily follows from this consistent view and steadfast public
3 policy of this State as expressed above, that if the elective process is available, and
4 if it is not expressly precluded by the applicable language, it should be utilized to
5 fill any available office by vote of the people at the earliest possible date. Thus the
6 elective process retains that primacy which has historically been accorded to it
7 consistent with the retention of all powers in the people, either directly or through
8 their elected representatives in their Legislature, which are not delegated, and also
9 consistent with the priority of the elective process over appointive powers except
10 where explicitly otherwise provided. We thereby continue the basic premise of our
11 democratic form of government, that it is a 'government of the people, by the
12 people and for the people.
13
14 Spector v. Glisson, 305 So. 2d 777, 782 (Fla. 1974).
15
16 WHEREAS, in addition, in Judicial Nominating Com'm, Ninth Cir. v. Graham, 424 So. 2d 10
17 (Fla. 1982), the Florida Supreme Court concluded that "the constitution mandates an election when
18 there is sufficient time to afford the electorate an opportunity to fill a judicial vacancy." Id. The
19 Court also summarized its conclusion as follows:
20
21 In summary, if the vacancy is known in sufficient time to schedule a special
22 election during the already scheduled primary and general election dates, then
23 a special election should be held. On the other hand, if an irrevocable
24 communication of an impending vacancy is presented to the governor at the time
25 of or after the first primary, then we have held there is insufficient time to use the
26 primary and general election process during that year and the governor is
27 authorized to use the merit selection process for a term ending in January following
28 the general election two years later.
29
30 Graham, 424 So. 2d 10, 12 (Fla. 1982) (bold emphasis added); See also, Padovano, J., dissenting,
31 Trotti v. Detzner, 147 So. 3d 641, 645 (Fla. 1st DCA 2014) (concluding that the rationale of the
32 Spector decision is as compelling today as it was over 40 years ago in that elective offices should
33 be filled by elections whenever possible); and
34
35 WHEREAS, based on the aforesaid, the City Council hereby finds that the November 2,
36 2021 regularly scheduled general election on November 2, 2021 is an "intervening general election"
37 because the effective date of the prospective resignations of November 16, 2021 is known by the
38 City in sufficient time to schedule a special election to fill the two vacancies during the already
39 scheduled general election date, and therefore, the City should conduct an election to fill the
40 vacancies and allow the electors of Cape Canaveral an opportunity to elect candidates of their
41 choice to fill the unexpired terms of the councilmembers pursuant to Section 2.06 of the City
42 Charter; and
43
44 WHEREAS, the City Council also takes legislative notice of Section 100.3605, Florida
45 Statutes, and Sarasota Alliance For Fair Elections, Inc. v. Browning, 28 So. 3d 880, 886-87 (Fla. 2010),
City of Cape Canaveral
Ordinance No. 34-2021
Page 3 of 7
1 and recognizes that the Legislature has granted local governments extensive power to control many
2 aspects of the local election process and that while the Florida Election Code is a detailed and
3 extensive statutory scheme, the Florida Supreme Court has held that the Legislature has not evinced
4 an intent to preempt the field of election laws; and
5
6 WHEREAS, in furtherance of the City Council's desire to conduct an election to fill the two
7 prospective vacancies, the City Council desires to also exercise its authority to adopt procedures for
8 the conduct of municipal elections within the City of Cape Canaveral to the extent not preempted
9 or in conflict with the specific provisions of the Florida Election Code that are expressly applicable
10 to municipalities, and to the extent not preempted or in conflict, it is the intent and purposes of this
11 Ordinance that the election procedures adopted by the City Council shall prevail; and
12
13 WHEREAS, the intent and purpose of exercising this local authority is to conduct an orderly
14 City election whereby the electors of the City of Cape Canaveral are afforded a reasonable
15 opportunity to participate in the qualifying and selection of candidates at the November 2, 2021
16 general election for purposes of not only electing a new Mayor, but also to fill the two
17 councilmember vacancies that will become effective on November 16, 2021; and
18
19 WHEREAS, the City Council finds that it is imperative to adopt this Ordinance so that eligible
20 candidates and the public are aware of the City Council's decision to conduct an election on
21 November 2, 2021 to fill the two prospective vacancies in accordance with Section 2.06 of the City
22 Charter and other applicable provisions of the City Charter, City Code and law; and
23
24 WHEREAS, the City Council finds that an emergency situation exists requiring the City
25 Council to enact this Ordinance by emergency procedures without the regular requirement of
26 publishing a public advertisement in a newspaper of general circulation 10 days prior to adoption
27 because time is of the essence to publicly announce the election to fill the two vacancies, qualify
28 eligible candidates, and to modify local procedures and requirements set forth in the City's
29 election code in order to facilitate said election; and
30
31 WHEREAS, the City Council also finds that an emergency situation exists because time is of
32 the essence for the City Council to take necessary and immediate action to promote and protect
33 the electors' right to elect qualified candidates to serve on the City Council before critical election
34 qualifying and ballot deadlines for the November 2, 2021 election expire; and
35
36 WHEREAS, the City Council finds that absent the ability of the City Council to adopt this
37 Ordinance by emergency procedures, the City Council would not have the ability to adopt necessary
38 election procedures to preserve the elector's right to choose councilmembers of their choice before
39 the critical qualifying and ballot deadline for the November 2, 2021 election expire; and
40
41 WHEREAS, the City Council of the City of Cape Canaveral, hereby finds this Ordinance to be
42 in the best interests of the public health, safety, and welfare of the citizens of Cape Canaveral.
43
44 NOW, THEREFORE, THE CITY OF CAPE CANAVERAL HEREBY ORDAINS AS FOLLOWS:
45
City of Cape Canaveral
Ordinance No. 34-2021
Page 4of7
1 Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by this
2 reference as legislative findings and the intent and purpose of the City Council of the City of Cape
3 Canaveral.
4
5 Section 2. Call for a Special Election on November 2, 2021 to Fill Vacancies. Due to the
6 letters of resignation from the City Council submitted to the City Clerk by Mayor Pro Tem Mike
7 Brown, dated July 23, 2021, and councilmember Wes Morrison, dated July 23, 2021, the City Council
8 hereby finds that said resignations shall take effect on November 16, 2021 by operation of law.
9 Further, upon the effective date, two vacancies on the City Council will occur. Therefore, pursuant
10 to Section 2.06 of the City Charter, the City Council hereby finds and declares that said prospective
11 vacancies shall be filled by the electors of the City at the November 2, 2021 general election.
12
13 Section 3. Election Procedures. The following procedures shall govern the conduct of the
14 City's general election to be held on November 2, 2021:
15
16 1. The election to fill the two vacant councilmember seats shall be by separate ballot
17 from the mayoral race pursuant to Section 2-26 of the City Code. Further, the election of the two
18 vacant councilmember seats shall be conducted on a single ballot in accordance with the
19 procedures and requirements set forth herein. The election of the mayor shall be a separate ballot
20 as originally scheduled. The candidate receiving the greatest number of votes on the ballot to fill
21 the two vacancies shall be elected to the office of a councilmember to serve the unexpired two (2)
22 year term of Councilmember Morrison's current seat. The candidate receiving the second -greatest
23 number of votes on the ballot to fill the two vacancies shall be elected to the office of a
24 councilmember to serve the unexpired one (1) year term of Mayor Pro Tem Brown's current seat. In
25 the event that two or more persons receive an equal and highest number of votes for the same
26 office, such persons shall draw lots to determine who shall be elected to the office in question per
27 Section 100.181, Florida Statutes. Further, in the event that only two persons qualify for the election
28 to fill the two vacancies, the two candidates shall draw lots on November 16, 2021 to determine
29 which candidate will serve the unexpired two year term and the loser serving the unexpired one
30 year term.
31
32 After candidates have been elected as provided above by the greatest number of votes, and
33 one or more offices remains open due to an insufficient number of candidate(s) qualifying for the
34 election, said office(s) shall be deemed vacant on November 16, 2021, and the City Council shall
35 appoint a duly qualified person(s) to fill any such vacancy on or within 90 days of November 16,
36 2021 pursuant to section 2.06 of the City Charter.
37
38 2. The City Clerk shall immediately notify the Brevard County Supervisor of Elections of
39 the City Council's decision to conduct an election to fill the two vacancies on the City Council at the
40 November 2, 2021 general election, and ensure that the Supervisor of Elections consents to the date
41 of the election pursuant to Section 100.151, Florida Statutes. If consent is not given, the City Clerk
42 shall immediately notify the City Council, City Manager, and City Attorney by email communication.
43
City of Cape Canaveral
Ordinance No. 34-2021
Page 5 of 7
1 3. The qualifying period for the two vacant seats shall be the same as the election of
2 Mayor commencing on August 2, 2021 at 12:00 noon and ending on August 13, 2021 at 12:00
3 noon.
4
5 4. As soon as possible, the City Clerk shall provide public notice of the election and the
6 qualifying period set forth in paragraphs 1 and 2. Such notice shall be by publication in a newspaper
7 of general circulation within the City, posting on bulletin boards located at the City library, City Hall,
8 appropriate Parks and Recreation facilities, the City website and any other City social media
9 platforms deemed appropriate, and any other places located within the territorial limits of the City
10 expressly required by law for municipal elections or deemed reasonable by the City Clerk. This
11 notice shall be in addition to the general election notice required by section 100.342, Florida
12 Statutes.
13
14 5. The following ballot instructions shall apply:
15
16 (a) To the extent permitted by law, the ballot used for the election shall be in a form
17 substantially as follows:
18
19 CITY OF CAPE CANAVERAL
20 TWO CITY COUNCIL VACANCIES
21 (Vote for Two)
22
23 Candidate Name
24
25 Candidate Name
26
27 Candidate Name
28
29 Candidate Name
30
31
32 (b) In the event the proposed ballot must be amended, the City Manager, in consultation
33 with the City Attorney and the Supervisor of Elections, shall be allowed to modify the ballot as
34 required by law. The City Council shall be advised of any such amendments as soon as practicable.
35
36 Section 4. Conflicts with Prior Inconsistent Ordinances and Resolutions; Florida Election Code.
37 This Ordinance shall prevail to the extent that the provisions of this Ordinance conflict with any prior
38 inconsistent ordinances and resolutions adopted by the City Council, or parts of prior ordinances and
39 resolutions in conflict herewith. The Florida Election Code shall apply to the November 2, 2021 City
40 election only to the extent the Florida Election Code preempts municipal ordinances or expressly
41 applies to municipalities. However, this Ordinance shall prevail to the extent of any conflicts with the
42 applicable provisions of the Florida Election Code to the extent allowed under Section 100.3605, Florida
43 Statutes.
44
City of Cape Canaveral
Ordinance No. 34-2021
Page 6 of 7
1 Section 5. No Incorporation Into Code. This Ordinance shall not be incorporated into the Cape
2 Canaveral City Code.
3
4 Section 6. Severability. If any section, subsection, sentence, clause, phrase, word or provision
5 of this Ordinance is for any reason held invalid or unconstitutional by any court of competent
6 jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed a
7 separate, distinct and independent provision, and such holding shall not affect the validity of the
8 remaining portions of this Ordinance.
9
10 Section 7. Effective Date. This Ordinance shall become effective immediately upon adoption
11 by the City Council of the City of Cape Canaveral, Florida, and shall be effective until the 61 st day
12 following the date on which it was adopted pursuant to section 2.14 of the City Charter. However,
13 upon the occurrence of the 61' day, this Ordinance shall be deemed automatically reenacted for a
14 period of time to certify the results of the general election on November 2, 2021, not to exceed 60
15 days after the automatic reenactment, unless this Ordinance is expressly repealed by the City Council
16 before said date.
17
18 ADOPTED, by at least a two-thirds vote of the City Council of the City of Cape Canaveral, Florida,
19 this 27th day of July, 2021.
20
21
22 Bob Hoog, Mayor
23
24
25
26
27 ATTEST: For Against
28
29 Mike Brown
30
31 Mia Goforth, CMC Robert Hoog
32 City Clerk
33 Mickie Kellum
34
35 Wes Morrison
36
37 Angela Raymond
38
39
40 Approved as to legal form and sufficiency
41 for the City of Cape Canaveral only by:
42
43
44 Anthony A. Garganese, City Attorney
45
City of Cape Canaveral
Ordinance No. 34-2021
Page 7 of 7
Attacment 3
GARGANESE, WEISS & D'AGRESTA, P.A.
Attorneys at Law
111 N. Orange Ave., Suite 2000
P.O. Box 2873
Orlando, Florida 32802-2873
Phone (407) 425-9566
Fax (407) 425-9596
August 5, 2015
VIA EMAIL
David L. Greene
City Manager
City of Cape Canaveral
105 Polk Avenue
Cape Canaveral, Florida
Anthony A. Garganese
Board Certified City, County & Local
Govemment
agarganese®orlandolaw.net
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 Tem Hoog.
As you are aware, both Councilmember Petsos and Mayor Pro Tem 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 Tem
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 Tem 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
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David L. Greene, City Manager
8/5/2015
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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 councilmember'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 McClung 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
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(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 ofa 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
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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 Tem 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 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).
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
govemment, 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 Tem 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
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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 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."
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 Govemor
to use the merit selection process to fill several judicial vacancies by appointment.
However, the Govemor 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 uthe 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
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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. 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).
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 Tem 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
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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
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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 Tem 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 Tem 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 councilmember 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
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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)