Back in February Carmichael McMillan was sanguine on his drive to eliminate red-light cameras from Palm Coast’s streets. He’d gathered 2,000 petitions of the required 15,000 to trigger a ballot referendum, and had until May 19 to gather the rest. He was certain he’d get the petitions, if not what he called the Palm Coast’s City “capitulation” even before the referendum was floated: when faced with a popular initiative, the council has the option to pre-empt a referendum by amending or repealing the ordinances in contention.
“If the council doesn’t capitulate, we expect 30,000 people by November,” McMillan said in February. “We will organize for them to show up to vote, so it’s either you capitulate to the petition, or we’ll get 30,000 people to vote against you.” He added: “I expect them to either fight it or capitulate. Either way, at the end of this road we’re on, these cameras will be gone.”
Less than a week from the May 19 deadline, the council has neither capitulated nor quite fought the petition drive. But McMillan has given it up, even though he’d gathered some 11,500 signatures: it’s not necessarily the still-daunting task of securing the remaining 4,000 signatures in such a short time, or more than the 4,000, since the petition-qualifying process usually ends up shedding a hefty percentage of petitions. Rather, McMillan told his Facebook community on May 8,
he was worried about the penalty the city may have to pay to the red-light camera company should the city be forced to pull out of its contract, which runs through 2019.
That question came up during a city council meeting Tuesday, as it had in a meeting a week earlier, when council member Bill McGuire worried about the implications of severing the contract prematurely. But as in the previous meeting, neither the city attorney nor the city manager were prepared to discuss what those penalties would be, if any did apply.
“I’m not prepared today to put a number on it,” City Attorney Bill Reischmann said Tuesday.
Nor have any numbers been placed on any eventuality at this point. McMillan, however, mischaracterized the issue when he told his Facebook community, by way of explaining why he was ending the referendum drive, that Netts would “use the referendum as an excuse to raise taxes if it were to pass,” a threat Netts never made (and could not make unilaterally, as he would need a majority vote). McMillan also claimed that the elected officials in charge of handling the process “have indicated they will not negotiate in a favorable [manner] to the city”—also a false claim. McMillan was on surer ground when he noted the change in contract language between ATS and the city, after a 2012 amendment to the contract. (See the original contract and the amendment below.)
The city’s contract with American Traffic Solutions does spell out termination terms, but not in all circumstances. According to the contract’s 2012 amendment, the city may be free and clear of the contract, without penalty, if the Legislature were at any point to revoke city’s authority to have red-light cameras in place. That authority was formalized in a 2010 law called the Mark Wandell Act. There’s been several attempts to revoke it since, but none has been successful.
Before the 2012 amendment, the contract with ATS included a clause that allowed the city to terminate the contract of its own authority, at any point it chose to do so, without cause, “if such termination is deemed by the city to be in the public interest,” and with 30 days’ notice.
The 2012 amendment City Manager Jim Landon negotiated with ATS eliminated that clause entirely.
The 2012 amendment states that ATS could terminate the agreement if Palm Coast stopped paying its fees. But it is silent on whether Palm Coast can unilaterally terminate the agreement (unless ATS refuses to provide services). It is also silent regarding any penalties should Palm Coast choose to end the agreement unilaterally, and without cause. In other words, the contract does not spell out consequences. The most the amendment does say in case of severance is to provide for a 90-day period, after the agreement is ended, when citations in the pipeline may be cleared, and their fees collected.
The contract also includes this line, added to the 2012 amendment: “Both parties recognize their respective obligations to mitigate any damage in the event of termination pursuant to this agreement.”
“We’ve had some phone conversations to get that ball rolling,” Landon said of his contact with ATS. But Landon so far has not revealed the substance of those conversations.
That amended agreement was initially set to expire at the end of September 2015. But the amendment included another surprise provision: if ATS were to install new cameras after the 2012 amendment went into effect, the agreement would automatically be extended through September 30, 2019.
None of those provisions were either negotiated openly by the city council, discussed by the council, or approved as such by the council, which to this day remains unaware of the contract’s fine print, including its length. Rather, the council approved the agreement renewal with ATS in general, with little discussion, and the objection of only one council member (Jason DeLorenzo).
On Tuesday, Reischmann outlined the city’s options regarding a referendum on the issue between now and November. The city could enact a new ordinance controlling red-light camera regulations. It could amend existing ordinances. Or it could revoke them, all as preemptive moves to a referendum. Alternately, the city could itself place a referendum on the ballot. It would have to have that language ready by June 20. Voters would get to have their say in November. That referendum could either be binding (that is, the council would have to follow its mandate by enacting or repealing appropriate ordinances). Or it can be advisory—that is, the results would merely be an opinion poll, but not a binding vote.
With McMillan’s drive no longer an issue, the city is relieved of much pressure to do something immediately. On the other hand, council members have been feeling anger rising over red-light cameras, and doing nothing may not be an option.