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2
3 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAPE
4 CANAVERAL, BREVARD COUNTY, FLORIDA; ESTABLISHING AN
5 ELECTION PROCEDURE UNDER CHAPTER 26 OF THE CITY CODE TO BE
6 UTILIZED TO CONDUCT SPECIAL ELECTIONS OF THE ELECTORS OF
7 THE CITY TO FILL CITY COUNCIL VACANCIES THAT MAY OCCUR IN
8 THE FUTURE AS A RESULT OF ONE OR MORE COUNCILMEMBERS
9 FILING A NOTICE OF RESIGNATION WITH A PROSPECTIVE EFFECTIVE
10 DATE TO RUN FOR A DIFFERENT OFFICE IN ACCORDANCE WITH
11 FLORIDA'S RESIGN -TO -RUN LAW IN INSTANCES WHEN THERE IS AN
12 INTERVENING GENERAL CITY ELECTION; PROVIDING THAT ANY
13 SUCH SPECIAL ELECTION SHALL OCCUR AT THE SAME TIME AS THE
14 REGULARLY SCHEDULED INTERVENING GENERAL ELECTION IN
15 ACCORDANCE WITH THE CITY CHARTER AND CITY CODE; PROVIDING
16 FOR CONFLICTS, SEVERABILITY, INCORPORATION INTO THE CODE,
17 AND AN EFFECTIVE DATE.
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, during two recent mayoral elections in 2015 and 2021, two sitting
24 councilmembers, with remaining terms of one and two years, resigned to run for mayor pursuant
25 to Florida's Resign -to -Run law (sec. 99.012, Fla. Stat.); and
26
27 WHEREAS, in both elections, the resignations submitted by the councilmembers were filed
28 with the City Clerk at least one week prior to the commencement of the qualifying period for the
29 office of mayor, and with a prospective effective date closely corresponding to the date of when the
30 newly elected mayor was scheduled to take office as allowed by Florida's Resign -to -Run law; and
31
32 WHEREAS, due to the resignations, the City Council, in both instances, was required to fill
33 the vacancies created on the City Council for the remainder of the unexpired terms of the two
34 resigning city councilmembers as provided by Section 2.06 of the City Charter; and
35
36 WHEREAS, in 2015 and 2021, the City Council, after seeking and being given advice from
37 the City Attorney in a detailed memorandum of law dated August 5, 2015, adopted an emergency
38 ordinance in favor of scheduling a special election to allow the citizens of Cape Canaveral the
39 opportunity to fill the prospective vacancies in conjunction with the mayoral election, in lieu of the
40 City Council filling the vacancies in the future by appointment when the resignations became
41 effective and the councilmembers left office; and
42
43 WHEREAS, the two elections in 2015 and 2021 brought to Tight the issue that when an
44 incumbent councilmember invokes the provisions of the Florida Resign -to -Run Law in certain
45 situations, an intervening general election may exist that will permit the City Council to fill the future
ORDINANCE NO. 02-2022
City of Cape Canaveral
Ordinance No. 02-2022
Page 1 of 7
1 prospective vacancy by special election versus waiting for the vacancy to become effective and then
2 filling it by appointment; and
3
4 WHEREAS, the City Council has previously declared that in such situations, the City Council
5 favors, as a matter of policy, allowing the electors of the City of Cape Canaveral to fill the prospective
6 vacancy if there were an intervening City general election that would allow the City to timely
7 qualify candidates for the vacant councilmember seat; and
8
9 WHERAEAS, in furtherance of this policy and to avoid a similar need to consider and adopt
10 emergency ordinances in the future related to councilmember vacancies caused by resignations to
11 run for a different office, the City Council now desires to adopt and incorporate into the City's
12 Election Code the election procedure successfully utilized by the City to fill councilmember
13 vacancies caused by Florida's Resign -to -Run Law during the 2015 and 2021 mayoral general
14 elections; and
15
16 WHEREAS, in furtherance of preserving the right of citizens to elect councilmembers of their
17 choice, the City Council also desires to restate the findings and case law relied upon by prior City
18 Councils to interpret the City Charter and successfully conduct special elections when vacancies
19 occur by resignations of councilmembers under Florida's Resign -to -Run Law; and
20
21 WHEREAS, the City Council declares that there is a sound legal basis for this policy decision
22 to supplement the City Council election and appointment procedures set forth in the City Charter;
23 and
24
25 WHEREAS, Section 2.06 of the City Charter generally provides that once the office of a
26 councilmember becomes vacant, the City Council, by majority vote, shall be required to fill the
27 vacancy by appointment until the next general election, at which time the electors of the City shall
28 be required to elect a candidate to fill the vacancies for the remainder of the term or elect a
29 candidate to serve a new three year term based on the City's regular election cycle; and
30
31 WHEREAS, the City Council, however, has historically interpreted Section 2.06 to mean that
32 the appointment powers bestowed upon the City Council by City Charter to fill councilmember
33 vacancies are intended to allow the City Council to fill a vacancy on a temporary basis because the
34 electors have reserved the right to elect a person to fill the same vacancies at the "next general
35 election." See State v. Gamble, 13 Fla. 9 (1869) (construing the power of the Governor to fill a
36 vacancy until "the next election" to mean that the appointment power to fill the office is not for the
37 remainder of the unexpired term and that the power remains with the people); See also, Model City
38 Charter 8th Edition, Section 2.06 Commentary (interpreting similar language to mean "the council
39 shall temporarily fill vacancies until the next general election, when the voters will fill such vacancies
40 for the remainder of the term); and
41
42 WHEREAS, relevant to interpreting Section 2.06 of the City Charter consistent with
43 prevailing legal authority, and under the circumstances presented in 2015 and 2021, the City Council
44 found that given the timing of the irrevocable notices of resignation in accordance with Florida's
45 Resign -to -Run Law, which were filed prior to qualifying and election of the mayor, an "intervening
City of Cape Canaveral
Ordinance No. 02-2022
Page 2 of 7
1 general election" existed which made it appropriate to call a special election before the vacancies
2 occurred for purposes of allowing the City electors to fill any vacancies on the City Council prior to
3 the effective date of the vacancies, rather than by City Council appointment; and
4
5 WHEREAS, in support of its reasoning that an "Intervening general election" existed, the
6 City Council took legislative notice of Spector v. Glisson, 305 So. 2d 777, 782 (Fla. 1974), wherein the
7 Florida Supreme Court held that if a judicial vacancy is known reasonably in advance of an
8 intervening primary and general election, the vacancy must be filled by election. The Court further
9 stated that "We have historically since the earliest days of our statehood resolved as the public
10 policy of this State that interpretations of the constitution, absent clear provision otherwise, should
11 always be resolved in favor of retention in the people of the power and opportunity to select officials
12 of the people's choice, and that vacancies in elective office should be filled by the people at the
13 earliest practical date." In other words, the Florida Supreme Court has emphasized that there is a
14 strong preference for elections in Florida:
15
16 We feel that it necessarily follows from this consistent view and steadfast public
17 policy of this State as expressed above, that if the elective process is available, and
18 if it is not expressly precluded by the applicable language, it should be utilized to
19 fill any available office by vote of the people at the earliest possible date. Thus the
20 elective process retains that primacy which has historically been accorded to it
21 consistent with the retention of all powers in the people, either directly or through
22 their elected representatives in their Legislature, which are not delegated, and also
23 consistent with the priority of the elective process over appointive powers except
24 where explicitly otherwise provided. We thereby continue the basic premise of our
25 democratic form of government, that it is a 'government of the people, by the
26 people and for the people.
27
28 Spector v. Glisson, 305 So. 2d 777, 782 (Fla. 1974); and
29
30 WHEREAS, the City Council also relied upon Judicial Nominating Com'm, Ninth Cir. v.
31 Graham, 424 So. 2d 10 (Fla. 1982), concluding that "the constitution mandates an election when
32 there is sufficient time to afford the electorate an opportunity to fill a judicial vacancy." Id. The
33 Court also summarized its conclusion as follows:
34
35 In summary, if the vacancy is known in sufficient time to schedule a special
36 election during the already scheduled primary and general election dates, then
37 a special election should be held. On the other hand, if an irrevocable
38 communication of an impending vacancy is presented to the governor at the time
39 of or after the first primary, then we have held there is insufficient time to use the
40 primary and general election process during that year and the governor is
41 authorized to use the merit selection process for a term ending in January following
42 the general election two years later.
43
44 Graham, 424 So. 2d 10, 12 (Fla. 1982) (bold emphasis added); See also, Padovano, J., dissenting,
45 Trotti v. Detzner, 147 So. 3d 641, 645 (Fla. 1st DCA 2014) (concluding that the rationale of the
City of Cape Canaveral
Ordinance No. 02-2022
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1 Spector decision is as compelling today as it was over 40 years ago in that elective offices should
2 be filled by elections whenever possible); and
3
4 WHEREAS, based on the aforesaid, the City Council previously declared in 2015 and 2021
5 that an "intervening general election" existed supporting a special election to fill the councilmember
6 vacancies because the effective date of the prospective resignations was known by the City in
7 sufficient time to schedule a special election to fill the two vacancies during the already scheduled
8 mayoral general election date, and therefore, the City Council determined that the City should
9 conduct a special election to fill the vacancies and allow the electors of Cape Canaveral an
10 opportunity to elect candidates of their choice to fill the unexpired terms of the councilmembers
11 pursuant to Section 2.06 of the City Charter; and
12
13 WHEREAS, the City Council also took legislative notice of Section 100.3605, Florida Statutes,
14 and Sarasota Alliance For Fair Elections, Inc. v. Browning, 28 So. 3d 880, 886-87 (Fla. 2010), and
15 recognized that the Legislature has granted local governments extensive power to control many
16 aspects of the local election process and that while the Florida Election Code is a detailed and
17 extensive statutory scheme, the Florida Supreme Court has held that the Legislature has not evinced
18 an intent to preempt the field of election laws; and
19
20 WHEREAS, the intent and purpose of exercising this local authority is to conduct an orderly
21 City election when necessary whereby the electors of the City of Cape Canaveral are afforded a
22 reasonable opportunity to participate in the qualifying and selection of candidates to fill
23 councilmember vacancies occurring under circumstances previously experienced during the 2015
24 and 2021 mayoral general election as a result of Florida's Resign -to -Run Law when there is a City
25 intervening general election; and
26
27 WHEREAS, the City Council of the City of Cape Canaveral, hereby finds this Ordinance to be
28 in the best interests of the public health, safety, and welfare of the citizens of Cape Canaveral.
29
30 NOW, THEREFORE, THE CITY OF CAPE CANAVERAL HEREBY ORDAINS AS FOLLOWS:
31
32 Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by this
33 reference as legislative findings and the intent and purpose of the City Council of the City of Cape
34 Canaveral.
35
36 Section 2. Code Amendment to Chapter 26 — Elections. The City of Cape Canaveral
37 Code of Ordinances, Chapter 26 — Elections is hereby amended as set forth below (underlined type
38 indicates additions and strikeout type indicates deletions, while *** indicate deletions from this
39 Ordinance of said Chapter that shall remain unchanged in the City Code):
40
41 CHAPTER 26 - ELECTIONS
42
43 ***
44 Sec. 26-6 Council Vacancies - Resign -to -Run Law and Intervening City General Election
City of Cape Canaveral
Ordinance No. 02-2022
Page 4 of 7
1
2 (a) Whenever a vacancy on the city council is caused by one or more councilmember(s)
3 resigning from their councilmember seat(s), pursuant to the requirements of Florida's Resign-to-
4 Run Law, in order to run for a different office, and the vacancy or vacancies will take effect
5 prospectively and said notice of resignation is filed with sufficient time to allow the City to qualify
6 candidates to fill the vacancy or vacancies by election at the same time as the next regularly
7 scheduled general City election (aka an "Intervening General City Election"), the city clerk shall
8 conduct a special election to fill the vacancy or vacancies on the same election day as the general
9 City election in accordance with the requirements of this section and other applicable law.
10
11 (b) The special election to fill the vacant councilmember seat(s) shall be by separate ballot from
12 the ballot regularly scheduled to be conducted at the general City election.
13
14 (c) If the special election requires the filling of more than one councilmember vacancy, the
15 election to fill the vacancies shall be conducted on a single ballot in accordance with the procedures
16 and requirements set forth herein. The candidate receiving the greatest number of votes on the
17 ballot to fill the vacancies shall be elected to the office of a councilmember to serve the seat with
18 the greatest remaining term. The candidate receiving the next -greatest number of votes on the
19 ballot to fill the vacancies shall be elected to the seat with the next greatest remaining term, and so
20 on until each of the vacancies are filled. If two or more persons receive an equal and highest number
21 of votes for the same vacant seat, such persons shall draw lots to determine who shall be elected
22 to the seat in question per Section 100.181, Florida Statutes. Further, if the number of qualified
23 candidates equals the number of vacant seats to be filled by special election, both candidates will
24 be deemed elected, but shall, if necessary, draw Tots on the day that they are required to take office
25 to determine which candidate will serve the seat with the greatest remaining term.
26
27 After candidates have been elected as provided in this section by the greatest number of
28 votes, and one or more vacancies remain open due to an insufficient number of candidate(s)
29 qualifying for the special election, any unfilled councilmember seats shall be deemed vacant on the
30 date that the newly elected councilmember(s) are scheduled to take office, and the City Council
31 shall appoint a duly qualified person(s) to fill any such vacancy on or within 90 days of said date
32 pursuant to section 2.06 of the City Charter.
33
34 (e) The City Clerk is authorized to notify the Brevard County Supervisor of Elections of any
35 special election required by this section, and the City Clerk shall verify that the Supervisor of
36 Elections consents to the date of the special election pursuant to Section 100.151, Florida Statutes.
37 If consent is not given, the City Clerk shall immediately notify the City Council, City Manager, and
38 City Attorney by email communication, and the City Council may take whatever action is necessary
39 to fill any vacancy consistent with the requirements of the City Charter.
40
41 If The qualifying period for any special election required by this section shall be the same as
42 the City general election unless otherwise required by the City Council to provide a reasonable
43 qualifying period to conduct the special election.
44
City of Cape Canaveral
Ordinance No. 02-2022
Page 5 of 7
1 (g) As soon as possible, the City Clerk shall provide public notice of any special election and the
2 qualifying period required by this section. Such notice shall be by publication in a newspaper of
3 general circulation within the City, posting on bulletin boards located at the City library, City Hall,
4 appropriate Parks and Recreation facilities, the City website and any other City social media
5 platforms deemed appropriate, and any other places located within the territorial limits of the City
6 expressly required by law for municipal elections or deemed reasonable by the City Clerk. This
7 notice shall be in addition to the general election notice required by section 100.342, Florida
8 Statutes.
9
10 (h) The following ballot shall be used for the special election substantially as follows:
11
12 CITY OF CAPE CANAVERAL
13 llnsert # ofl CITY COUNCIL VACANCIES
14 (Vote for (Insert # of vacanciesl)
15
16 Candidate Name
17
18 Candidate Name
19
20 Candidate Name
21
22 Candidate Name
23
24
25 The City Manager, in consultation with the City Clerk, City Attorney and the Supervisor of
26 Elections, shall be allowed to modify the ballot as required by law. The City Council shall be advised
27 of any such amendments as soon as practicable.
28
29 Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent
30 ordinances and resolutions adopted by the City Council, or parts of prior ordinances and
31 resolutions in conflict herewith, are hereby repealed to the extent of the conflict.
32
33 Section 4. Incorporation Into Code. This Ordinance shall be incorporated into the Cape
34 Canaveral City Code and any section or paragraph, number or letter, and any heading may be
35 changed or modified as necessary to effectuate the foregoing. Grammatical, typographical, and
36 like errors may be corrected and additions, alterations, and omissions, not affecting the
37 construction or meaning of this ordinance and the City Code may be freely made.
38
39 Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or provision
40 of this Ordinance is for any reason held invalid or unconstitutional by any court of competent
41 jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed
42 a separate, distinct and independent provision, and such holding shall not affect the validity of the
43 remaining portions of this Ordinance.
44
City of Cape Canaveral
Ordinance No. 02-2022
Page 6 of 7
1 Section 6. Effective Date. This Ordinance shall become effective immediately upon adoption
2 by the City Council of the City of Cape Canaveral, Florida.
3
4
5
7
8
9
ADOPTED by the City Council of the City of Cape Canaveral, Florida, this 19th day of
April, 2022.
10 ATTEST:
11
12
13
14 Mia Goforth, CMC
15 City Clerk
16
17
18
19
20
21
22
23
24 First Reading: March 15, 2022
25 Advertisement: April 7, 2022
26 Second Reading: April 19, 2022
27
28 Approved as to legal form and sufficiency
29 for the City of Cape Canaveral only by:
30
31
32
33
34 Anthony A. Garganese, City Attorney
Wes Morrison, Mayor
For Against
Kim Davis X
Mickie Kellum Second
Wes Morrison X
Angela Raymond Motion
Don Willis X
City of Cape Canaveral
Ordinance No. 02-2022
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SEAL of Cape Canaveral, Florida