The Palm Coast City Council on Tuesday will set in motion the legal mechanism—through amended ordinances—to resolve an ongoing conflict with the Supervisor of Elections over past and future elections.
The supervisor has run Palm Coast’s past elections, and was due to run its 2014 elections (two council seats are up). But Supervisor Kimberle Weeks over the last months has raised objections to inconsistencies or errors in city ordinances that she claimed render the city’s process improper or illegal. The city contends that the errors amount to textual amendments that can easily be fixed by the council, as is the council’s intention.
Weeks is not so sure. “In my opinion,” Weeks wrote in an email Monday, in answer to questions about Palm Coast’s proposed ordinance changes, “no ordinance or resolution is going to resolve the matter if the requirements to amend the city charter have not been met. The requirements to amend the city charter to change their election cycle are outlined in the City Charter (Section 10) and in the Florida Statues.”
Late last year Weeks’s objections had reached such a pitch that Palm Coast was having to put contingencies in place, in case the supervisor decided not to run the city’s election come summer and fall. Palm Coast is ready to run its own election, though that would create extra costs and confusion, with parallel elections unfolding at the same time.
But an attorney with the state Division of Elections, Palm Coast’s attorney and County Attorney Al Hadeed—the latter in a long memo to Weeks outlining the issues and the solutions—have all told Weeks that what problems may exist can be resolved amicably and quickly by amending ordinances and through an interlocal agreement between the city and the supervisor.
In the ordinances going before the city council Tuesday, one change pertains to the timetable for candidates to qualify for office. It would require candidates for mayor or city council to submit their qualifying petitions 28 days before the qualifying period (or pay a fee equivalent to 10 percent of the seat’s salary). The qualifying period is no longer set by the city, but by state law.
Another proposed ordinance change adds a section relating to “election procedures. That ordinance directly addresses Weeks’s concerns and the council’s wish to “clear up any confusion due to the possibility of City Charter language being interpreted as in conflict with binding state law,” and to give the county canvassing board sole authority to canvass the election. The ordinance sets out explicitly that the city clerk will coordinate all city elections with the supervisor of elections, including the printing of ballots and the coordination of absentee ballots. (The city council is not voting on the proposals Tuesday, but merely discussing them in a workshop, with a vote on the ordinances likely the following week, then again two weeks after that.)
The council has already, of course, changed its voting cycles from odd years to even years, to coincide with state and federal elections, and to both increase turn-out and save money. But the change, in 2011, while approved by voters and enacted by ordinance, was error-prone: not all the wording in city ordinances and the city charter was changed accordingly. Those were minor errors, not, by any means, willful attempts by the city to mislead voters—errors that all attorneys involved agree were or could be corrected.
Weeks contends that the fact that the 2011 vote took place in a primary rather than in a general election is by itself cause for invalidation, as, by charter, she says the vote should have taken place in a general election. So she’s putting in question the elections that followed the 2011 changes and the coming election despite repeated attempts by lawyers involved in the issue to dissuade her from such an approach.
“As to those who were elected in 2011 based on the charter amendment,” County Attorney Al Hadeed wrote Weeks on Dec. 19, “the time for challenging these terms of office has long passed.” Hadeed added: “The statute governing candidate elections requires a court filing within 10 days of the winning candidates being certified.”
The extent of Hadeed’s involvement until now had been unclear. As county attorney, any constitutional officer may query his opinions, much like a local government may query the state attorney general for an opinion on local matters. But there are limits. “As you know,” Hadeed wrote, explaining those limits to the county commission in a Jan. 10 memo, “while the County Attorney’s office is willing and able to provide legal advice to our Constitutional Officers, it is an unauthorized use of public funds for the county to pursue or otherwise involve itself in litigation, unless the litigation involves an issue that falls under the jurisdiction of Flagler County, or we are a named party.”
The memo to commissioners summarized Hadeed’s involvement in the matter dividing the supervisor and Palm Coast, since Weeks on Dec. 2 submitted numerous documents to Hadeed for his review and opinion.
“In summary,” Hadeed wrote the commissioners, “it was my opinion that all matters related to the 2011 charter amendment can be resolved through the implementation of an interlocal agreement between the Supervisor of Elections and the City of Palm Coast that requires the city to take specified actions to remove any arguable deficiencies with the 2011 charter amendment and to eliminate any ‘cloud’ which may exist with respect to the 2014 election cycle.”
Weeks had sought an Attorney general’s opinion regarding those matters. The Attorney Genera’s office, Hadeed noted, is not available for the specific questions she raised—nor is a lawsuit necessary, he said, suggesting that Weeks had been (or may still be) considering suing the city.
“I need confirmation that it would be legal to conduct an election for the city in 2014,” Weeks wrote Monday, “therefore it was requested by the city to obtain an Attorney General Opinion to confirm the city met all requirements to amend their city charter. Per my discussions with the Attorney General’s office, only the city can request such an opinion. To date, the city has stated they would not comply with my request by stating it was not necessary. I would not have requested that they obtain this opinion if I didn’t feel it was necessary. If the city is confident they have complied with requirements to change their charter, they should have no reservations of obtaining the Formal Opinion. The question remains, does the city hold elections in odd numbered years, or did they properly follow requirements to change their city charter to change their election cycle to even numbered years. Perhaps you can explain why the city is not working with me to resolve this matter. Where is it stated the Charter may be amended by ordinance or resolution?”
“A declaratory suit or Attorney General Opinion,” Hadeed had written, “are unnecessary for the issues of election dates, qualifying periods, and absentee ballots provided the city enacts an ordinance consistent with state law.”
Hadeed’s full memo to Weeks is below.