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State Election Supervisors’ Attorney Told Kim Weeks a Month Ago That Palm Coast Was on Firm Ground

| March 12, 2014

Through the Supervisor of Elections' looking glass. (© FlaglerLive)

Through the Supervisor of Elections’ looking glass. (© FlaglerLive)

Ronald Labasky, the general counsel for the Florida State Association of Supervisors of Elections, told Flagler County Elections Supervisor Kimberly Weeks on Jan. 29 that Palm Coast was on firm legal ground regarding the conduct of its 2011 election, and that Palm Coast’s 2014 election would not expose Weeks to legal liability should anyone contest its legality.

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Weeks has been conducting a long and public battle against Palm Coast over a charter amendment voters approved in Palm Coast in 2011, changing the date of subsequent elections. Weeks contends that the referendum was carried out improperly, that because the city did not properly and immediately update its relevant documents, the amendment lacked validity and could expose her or Palm Coast taxpayers to legal liability should a voter sue in the future, and that Palm Coast should still seek out an opinion from the Attorney General to ensure that it’s doing things properly.

Labasky disagreed. But he was only the latest legal authority to do so: the state Division of Elections’ attorney, the Flagler County attorney, the Palm Coast city attorney and previous Attorney General opinions have all fallen on Palm Coast’s interpretation of the law, seeing no issues with the city’s elections past or future.

Yet Weeks a month later was still publicly casting doubt on Palm Coast’s legal standing despite what she’d read from the man she referred to in correspondence with a voter as “my attorney.”

“Based on what I have reviewed,” Labasky wrote in a Jan. 29 letter to Weeks (who received the letter on Feb. 3), “the election took place, the amendments were approved, and the city has now incorporated the amendments into the charter. It appears from your communications that the city is satisfied that its change of elections is proper and legal. Based on the interpretation and reliance on the legal construction contained in [Attorney General Opinion] 78-62, that would appear to be the situation.” Labasky explicitly agreed with an opinion Weeks had previously received from Gary Holland, the state Division of Elections’ attorney, clearing Palm Coast.

Labasky, who’s been the association’s attorney for 25 years, urged Weeks to follow Palm Coast’s lead on when to conduct the city’s elections. “Since the city is satisfied that there are no legal issues with its election change,” Labasky wrote, “I believe you are entitled to rely on what the city asserts are now the provisions in the charter and when its elections are to be undertaken.”

Weeks is still not taking Labasky’s opinion as final.

“Rely on what the city asserts are now the provisions of the Charter,” Weeks’ own attorney told her.

“Until I receive affirmative documentation that the city has complied with all requirements to modify their city charter following the 2011 election to know it would be legal to hold elections in even numbered years for the city, I am going to have concerns, and not be satisfied knowing the tax payers dollars are at risk,” Weeks wrote in an email responding to questions Tuesday. “Mr. Labasky’s letter was not misinterpreted, it simply didn’t provide firm affirmative confirmation that the matter could not be challenged.” She added: “In my opinion, ‘appear to’ and ‘do’ have different meaning and because I did not receive the ‘do’ confirmation I felt I was in a no better situation of knowing the tax payers and voters were protected. Mr. Labasky’s reminder, ‘You are certainly aware that a citizen or voter of the City could challenge the City’s Charter,’ also leaves room for concern. There is absolutely no excuse for the City to not request the formal opinion that I have asked of them to protect the tax payers pocket book against a costly court challenge. My actions have been to do what is best for the voters to protect them and to allow them to maintain their confidence in fair, honest elections.”

Attorney General’s opinions are advisory only, and are usually written with the same qualifiers that Weeks will not abide.

Palm Coast has been forced to live with the uncertainty of whether the supervisor was going to conduct its election or not since Weeks began questioning the city’s charter change last year. Even after receiving Labasky’s opinion, Weeks did not tell the city that she would conduct its election. She waited to do so until she wrote an OpEd in the Palm Coast Observer last week. Even as she announced that she would conduct Palm Coast’s elections after all, she repeatedly attacked city officials, including the city manager and the city attorney, never mentioning the letter she’d received from Labasky—or a second letter she received from him two weeks later, reiterating Palm Coast’s firm standing.

“I do not follow the lead of employees such as Landon and Reischmann,” Weeks concluded in her piece, referring to City Manager Jim Landon and City Attorney Bill Reischmann. “I follow the laws of the state of Florida.”

But Labasky had told her that the city—through Landon and Reischmann—had indeed followed the law, even if city staff had erred with what amounted to scriveners’ errors regarding dates and late-filed changes to city ordinances. Labasky saw no harm in those mistakes, because state law is just as clear about the fact that once voters approve a charter amendment, that approval is in effect, regardless of whether the city immediately and properly amends its documents to reflect the change or not.

Weeks in her OpEd does not acknowledge that she may have misread the law that four lawyers had interpreted for her (Weeks is not a lawyer), or that she, too, like Palm Coast, may have committed a few mistakes. Rather, she portrayed her decision to conduct the election as an act of grace for Palm Coast taxpayers, to protect them from their city, should the city be exposed to a lawsuit.

But Labasky had disabused Weeks of that presumption, too, in his Jan. 29 letter: “Your office would not be responsible to defend the city charter if someone chose to challenge the city’s position to hold its election in 2014, pursuant to what the charter states,” the supervisors of election association’s attorney wrote. “If a suit was filed the city would need to be named or would need to intervene to defend its charter and at worst you may be named as a party. A declaratory action could be attempted but I do not believe under these circumstances your office has that responsibility and you can proceed forward based on the city’s position concerning the charter’s requirements.”

In her answers to questions on Tuesday, Weeks acknowledged that “Because of Mr. Labasky’s opinion an Interlocal Agreement will be prepared and provided to the City,” but she she reiterated that to date she had not received a confirming opinion that Palm Coast “has met all requirements” to modify its charter. And she repeated her assertion that she is acting to protect Palm Coast voters.

“The citizens of Palm Coast will at least be in a win lose situation if I assist with their election,” Weeks wrote. “They may still have to open up their pocket books for a suit should one be filed, but they will have the confidence that their election is fair and honest. We can only hope this turns into a win win situation for the citizens by no challenge being filed.”

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15 Responses for “State Election Supervisors’ Attorney Told Kim Weeks a Month Ago That Palm Coast Was on Firm Ground”

  1. Will says:

    I would hope that this article and Mr. Labasky’s letter will give some of Ms. Weeks’ fans some pause BEFORE writing in blind support for whatever she does, and what’ shes doing here. Ms. Week’s repetitive announcements from her high throne are excellent examples of HUBRIS:

    World English Dictionary
    hubris or hybris (ˈhjuːbrɪs)

    — n
    1. pride or arrogance
    2. (in Greek tragedy) an excess of ambition, pride, etc, ultimately causing the transgressor’s ruin

  2. Anonymous says:

    This entire matter is out of the jurisdiction of Gary Holland and the Department of State and they cannot and will not voice an opinion, they have told the Supervisor to work this out with the city. If Flaglerlive can’t produce anything confirming absolutely we tax payers are not at risk, then Weeks must be right.

    When Weeks’ attorney warns her that a suit could be filed, this is not firm ground. It appears to me that Labasky reminded Weeks that this is the Citys problem. I dont blame her, I wouldnt even want to be named in a suit. The fact here the city flawed and Weeks brought it to their attention. Even the county and city didn’t recogonize the errors before Weeks did and the city attorney should have ensured this all was done right to begin with. Weeks may not be an attorney, but has done a fine job. I read in previous articles it wasnt until February 28th that the city even told Weeks they wanted her to assist with their election-and she waited 3 months for that response. Weeks has followed her attorney’s advice and moved forward to prepare an interlocal agreement. Weeks did just conduct an election for Bunnell and apparently has been quite busy with that.

  3. Life in the Big City says:

    Are Jim Landon and his crew now trying to run the elections in this town as well?

  4. confidential says:

    Very clear and responsible SOE Mrs. Weeks position, given the fact that Attorney Labasky wrote:” If a suit was filed the city would need to be named or would need to intervene to defend its charter and at worst you (SOE Weeks) may be named as a party”
    SOE Weeks is trying to prevent herself and investiture to be “named as a party for collaborating or forced collaboration in a city lawsuit. Doesn’t it justify her clamors? Of course it does!
    How would we all feel to be named as party in a lawsuit initiated against and entity for wrong doing while being condescendent and quiet about that wrong doing or error.? Thank you and keep up the good work Mrs. Weeks!

  5. Steve Wolfe says:

    This article seems to imply some unnamed motive for Week’s intransigence, but I would refer readers to some true mismanagement by the Palm Coast leaders, specifically the recent Bulldog Drive ownership ordeal, and the $157 million indebtedness of the water utility which has produced over $300 million in revenue since bought by Palm Coast not too long ago. I also have difficulty understanding the City’s approval for the expansion of Palm Harbor Shopping Center absent the commitment of businesses to lease the new spaces in the PHSC planning. The only need made apparent by the presentations on PHSC are an increase in floor space for Publix, and perhaps a new façade for the rest of the shopping center’s current businesses. Throw in drama that continues to swirl about the red light cameras, and revelations causing citizens to “follow the money,” and we have reason to look closer.

    I’m new to the area. Where I come from, local politics are a much bigger game than here, somewhat less accessible. I have been able to see some of this local scene up close and personal, speaking to players one-on-one. While refreshing on the one hand, some of what I have been learning gives reason for pause. It actually lends some credibility to Kimberly Weeks’ crusade against the City Council’s refusal to seek a FREE opinion from the one agent of State Government that would end this matter once and for all. It also makes me more suspicious of all the expert legal voices that have spoken in favor of the City Council’s treatment of the matter.

    I have seen Flagler Live shine much needed light on missteps by local government. I am grateful for the continued vigilance. I urge the City Council to acquiesce on this matter and put it to rest. After all, the AG must be about the only legal expert that is yet to opine. If there is simply a matter of the pride of seven men against one woman, I ask that the men put on their big boy pants and comply with the SOE’s one request. What, I ask, does the City Council have to lose by doing so? Is there something else that we should know?

  6. Read between the lines says:

    Interesting that this story is titled with inaccurate words such as “firm” and the story reports nothing of the sort. If Weeks was warned it could be challenged then I don’t blame her for being concerned. Even if a suit is filed and Weeks is named in the suit it will require that she hire an attorney. Weeks’ attorney stated the city believes they have done everything properly, but he never said the city in fact did. He warns of a suit, and tells Weeks she isn’t at as much risk as the city. Flagler Live has misinterpreted not Weeks. I want to see something that tells me the city did everything correctly and we can’t be sued.

    • just saying says:

      Attorneys would challenge “the sky is blue” should someone pay them enough.

    • Nancy N. says:

      Lawyers NEVER speak in absolutes on matters like these. They don’t make promises. Ms Weeks is asking for the impossible.

      It is not possible for an attorney to tell Ms. Weeks that she can’t be sued over this issue. In this country, anyone can sue anyone else for anything at any time. To say to her that the attorney guarantees she can’t get sued would require a crystal ball.

  7. Dennis McDonald says:

    I heard the Palm Coast Slant presented by Palm Coast’s talking head Cindi Lane during the course of the weekend and decided to look into what was prepared for her to say by the City Manager from a Factual Perspective. I have reviewed the information I have received by Sunshine Request regarding the AG, DoE, County Attorney, City Attorney and this is the bare bones conclusion.

    AG. Will not provide an opinion unless the City requests it.

    DoE. Will not weigh in as it is not “their jurisdiction “.

    County Attorney. His position is County and he has no say in City issues.

    City Attorney. References a 1978 Case law that when I researched I find that the Florida Statute it was based on has been REPEALED. This reference lacks a basis in fact !

    Further the City says it has “worked hard to resolve this issue” How ? By running in every direction except for requesting the AG. opinion SOE Weeks asked them to obtain. The City has worked hard at filling the WNZF air waves and local newsprint with “Landon Speak” and the Voters have had enough.

    Two final points, David Ayers with “wingman” Brian McMillan closed their show Friday by saying that 80% of the whole city had decided this issue. FACT less than 10% [4450 of 50,000] of the Voters in PC decided the issue because of it being held at a Primary Election historically the lowest turn out and Contrary to Florida Law. Will this referendum violation be advanced ? Consider that the majority of Palm Coast residents would like to see Mayor Six Percent Netts gone from office 11/2015 when his elected term ends !

    Last, the SOE said she will provide the interlocal agreement similar to the one she uses for other Cities, but with a addendum because of how the Palm Coast City Charter was modified. Mr Labasky’s comment that ” I do not believe under these circumstances your office has that responsibility and you can proceed forward based on the city’s position concerning the charter’s requirements.” is lawyer speak for I can defend your office when you are sued. Run that big $$ meter Mr Labasky ! The SOE position safe guards by using the addendum protect the Taxpayers so they are held harmless in future legal actions. Never has the SOE said she will hold the Palm Coast election, that would be the outcome of a successful signing of the Interlocal Agreement.

    The bottom line here is that NEVER have any of the legal beagles said the City did it right, except Reicshman who sites forty year old case law based on a Florida Statute that was REpealed. Further that repealed FS. was about County and Constitutional matters NOT municipal city charters. His position does not even begin to advance the City position, foolish !

    So why is the City doing everything they can to circle around getting a free AG Opinion ?
    Here’s my guess, if the referendum was NOT done correctly then any future actions the referendum granted would be VOID. That Void would be that Netts would be termed OUT in November 2015. McGuire and Delorenzo what have to rerun next year at this time. NO extra year.

    Now this is worth pursuing !

    Opinions from the new Palm Coast.
    Dennis McDonald


  8. Diana L says:

    I too, believe the headline is misleading. Why didn’t the City do it correctly, in the first place, and we wouldn’t be having this discussion? Until, the SOE has concrete proof, in writing, I think she is correct.

  9. Genie says:

    It’s sad that our local politicians have the reputations to warrant this kind of scrutiny. It is as if they serve for their own financial interests and not those of the people who elected them. I don’t believe any of us realized for a minute this is what we’d be faced with when we moved to Palm Coast.

    And sadly, it takes an involved community to end this kind of politics. And we don’t have an involved community here.

    My hat is off to Ms. Weeks for standing up for the people in this community. Elected officials like that are in short supply around here.

  10. Steve says:

    No attorney is going to be responsible for saying the city did anything correct or legal. Flaglerlive is so wrong to even try to make us think that Labasky, Holland, the county attorney , city attorney or anyone else would tell Weeks all was good and the city is clear to have an election this year. The supervisor of elections seems to be the only one with any morals and ethics, and who wants to do what is right for us. Mrs. Weeks, you hang tough and know we are behind you 100%. There is nothing wrong with you asking for the city to get a free attorney general opinion.

  11. Ida says:

    Flaglerlive this story title is not appropriate and in no way have you written anything that supports your claim. Weeks has every reason to ask the City for confirmation, and her attorney plainly tells her she is still at risk of a challenge, so how do you get firm out of this? It is discusting that the City isn’t confident enough with what they do to prove they are right. What are they trying to keep hid? The City attorney should have guided the City to begin with so all of this wouldnt be a concern today. The City hasnt hired this attorney to be the City attorney full-time so he isnt involved in everything that is going on, and only involved in what they want him to be involved in, so the dirt would stay under the carpet. Its too bad we dont have more people elected into office like Weeks who looks out for us and how our money is spent. I trust Weeks more than I would trust any Attorney anyday of the week. She’s smart emough to realize no one is going to accept responsibility for wrong doing. So the response she gets is always going to be is “if” from all of them–and this is not firm Flaglerlive.

  12. Brad says:

    Enough is enough with Kimberle Weeks and this idea that she is some kind of “victim” of everything. She conducts herself like a bully hiding behind and position she should not be in and is in no way ever conducting herself in a professional manner. She is NOT a lawyer nor should be representing herself as in a position to interpret the law whether or herself and especially not on behalf of the voters. She should consult with and take the direction of actual lawyers.

    She has done nothing for the tax payers nor voters of Palm Coast (both of which are the good majority in this county) in this Kimberle Weeks-created issue or the early voting location issue. The defenders of this disgrace to our County government that Kimberle Weeks is can split hairs all day long, but at the end of the day it is all too apparent that she uses her office for personal vendettas and not in the best interest of the voters or tax payers. If she put just a fraction of time, effort, and resources into promoting voting rather than her self-created issues and playing the victim, maybe we would finally get voter turnout out from the extremely low levels they have taken on since she took office. You can’t expect good leadership if no one is showing up to vote. Th problem with voting is not the voters either . . . the problem is Kimberle Weeks.

    She owes the residents of Palm Coast, the City government, and especially Jim Landon a public apology. We do not care about her excuses or defensiveness for her appalling actions any longer. We want your public apology and to start finally acting and being a Supervisor of Elections like you were voted to be. IF that is not what she wants to be for the $95,000 of our tax payer dollars then she should resign and get out of the way so Flagler County can finally get voting back in order.

    • Palm Coaster says:

      Brad- it’s apparent you have an ax to grind with Mrs. Weeks. Mrs. Weeks is doing the right thing and looking out for us. If the city wasn’t trying to hide the truth, they would request that opinion to put the matter to a close. Just remember Brad, if you’re not part of the solution, your part of the problem.

      Mrs. Weeks was reelected in 2012 with more votes than any other candidate on the ballot, so obviously you are only one of few that feel she must go. If I didn’t know better, I would say you are envious of her, and want her job. I applaud Mrs. Weeks for standing up to the city to do what she believes is right in our best interest. Weeks has nothing to personally gain by standing up for us, she is doing the job we elected her to do, and serves us well.

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