HomeMy WebLinkAboutcocc_ordinance_no_34-2021_20210727_emergency1 ORDINANCE NO. 34-2021
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4 AN EMERGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
5 CAPE CANAVERAL, BREVARD COUNTY, FLORIDA; REGARDING
6 THE NOVEMBER 2, 2021 GENERAL ELECTION; DECLARING A
7 SPECIAL ELECTION OF THE ELECTORS OF THE CITY TO FILL TWO
8 PROSPECTIVE CITY COUNCIL VACANCIES DUE TO TWO
9 RESIGN -TO -RUN RESIGNATIONS RECENTLY FILED WITH THE CITY
10 CLERK BY TWO MEMBERS OF THE CURRENT CITY COUNCIL;
11 PROVIDING THAT SUCH ELECTION SHALL OCCUR DURING THE
12 REGULARLY SCHEDULED ELECTION FOR THE OFFICE OF MAYOR
13 ON NOVEMBER 2, 2021 IN ACCORDANCE WITH THE CITY CHARTER
14 ' AND CITY CODE; PROVIDING PROCEDURES FOR GOVERNING THE
15 CONDUCT OF SAID GENERAL ELECTION; PROVIDING FOR
16 CONFLICTS, SEVERABILITY, AND AN EFFECTIVE DATE.
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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
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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
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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
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31 WHEREAS, the qualifying period for the election of Mayor is currently scheduled to
32 commence on Monday, August 2, 2021, and end on Friday, August 13, 2021 in accordance with
33 Section 26-3 of the City Code; and
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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
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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
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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
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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
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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
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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
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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
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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
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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 a judicial 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
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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.
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14 Spector v. Glisson, 305 So. 2d 777, 782 (Fla. 1974).
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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:
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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44 NOW, THEREFORE, THE CITY OF CAPE CANAVERAL HEREBY ORDAINS AS FOLLOWS:
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City of Cape Canaveral
Ordinance No. 34-2021
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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.
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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 councilmember 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.
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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:
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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 councilmember Brown's current seat.
25 In the event that two or more persons receive an equal and highest number of votes for the
26 same office, such persons shall draw lots to determine who shall be elected to the office in
27 question per Section 100.181, Florida Statutes. Further, in the event that only two persons qualify
28 for the election to fill the two vacancies, the two candidates shall draw Tots on November 16,
29 2021 to determine which candidate will serve the unexpired two year term and the loser serving
30 the unexpired one year term.
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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.
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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.
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City of Cape Canaveral
Ordinance No. 34-2021
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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.
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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.
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14 5. The following ballot instructions shall apply:
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16 (a) To the extent permitted by law, the ballot used for the election shall be in a form
17 substantially as follows:
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19 CITY OF CAPE CANAVERAL
20 TWO CITY COUNCIL VACANCIES
21 (Vote for Two)
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23 Candidate Name
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25 Candidate Name
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27 Candidate Name
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29 Candidate Name
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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.
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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.
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City of Cape Canaveral
Ordinance No. 34-2021
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1 Section 5. No Incorporation Into Code. This Ordinance shall not be incorporated into the Cape
2 Canaveral City Code.
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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.
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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 61st 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 61st 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.
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18 ADOPTED, by at least a two-thirds vote of the City 'o cil of the ity of Cape Canaveral, Florida,
19 this 27th day of July, 2021.
20 Robert Hoog
21 Bob Hoog, Mayor
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25
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27 ATTEST: For Against
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29 Mike Brown X
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31 Robert Hoog X
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33 Mickie Kellum Second
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35 Wes Morrison X
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37 Angela Raymond Motion
Mia Goforth, CMC
City Clerk
38 -
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40 Approved as to legal form and sufficiency
41 for the City of Cape Canaveral only by:
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44 Anthony A. Garganese, City Attorney
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City of Cape Canaveral
Ordinance No. 34-2021
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