Palm Coast Council Plays Up Charter Review. Until Its Lawyer Says It’s Not What It Seems.

The Palm Coast City Council and administration are confused, and confusing, about the beleaguered charter review process hobbling to the end of its public workshops Thursday. What mutant version of the process survives beyond then is anybody’s guess, as the workshops have been largely sideswiped by unresolved and at times bitter wrangles over that process rather than producing any sense of what residents want out of their charter.

But a review of the charter review so far strongly suggests that confusion and wrangles are almost all the city’s doing.

Ever since the council agreed in May to review its charter—the city’s constitution—it has referred to the approach as a charter review process. The process would lead to the possibility of presenting charter amendments to voters in a 2018 referendum if necessary. There’s a likelihood but never a certainty that proposals would be made, especially if there’s a dearth of suggestions (as there has been).

But there was little doubt that a review was under way, at least if you went by what the city was saying, soliciting, disseminating to the press, advertising on its own website or plastering on its slides in charter review “workshops.”

Its own administration’s presentation, the basis for the council’s approach—which was never voted on but merely agreed to by consensus, itself a dubious way to go about re-examining the city’s constitution for the first time in 18 years—referred to it as a “Charter Review Process.” The terms were enshrined in August when the council adopted the method it would go about soliciting residents’ ideas and opinions for the review through four public workshops and a $6,000-facilitator, who herself says at those workshops: “The city did approve in some manner conducting this charter review by the council.”

The web page the city put up to explain the process and solicit input goes even further. It’s titled explicitly “City Council Charter Review,” going well beyond reasonable doubt about the council’s intentions by stating explicitly that “The Palm Coast City Council will be reviewing the City Charter in late 2017 and early 2018,” and repeating the words “charter review” four times in two short explanatory paragraphs.

Though with less fanfare and marketing than it does, say, when the city is sponsoring its Senior Games, the city also issued one lone press release from its PR office to advertise the workshops, on Sept. 19, referring to the process as the “Palm Coast City Charter Review special workshops,” and stating again that “The Palm Coast City Council will be reviewing the City Charter this fall and is encouraging citizen participation throughout the charter review process.”

The message seemed clear: the council was welcoming a review of the charter for the first time since the city’s inception in 1999.

To the few people who have bothered following the process (the three workshops so far have drawn about a dozen people each, not counting city officials padding the attendance), and going by what the city had stated, there was no doubt a review was under way—with the council as the reviewing body.

At the last such workshops, at Buddy Taylor Middle School on Oct. 18, residents discovered what lawyering up the charter-review process means when Bill Reischmann, the city attorney, made a startling statement: “The process we’re doing here is not a charter review committee. At no time, and I want to make this really clear, at no time did the council appoint itself as a charter review committee. That’s not what these four workshops are. This is not a charter review committee review process.”

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“That’s not what these four workshops are. This is not a charter review committee review process.”

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Reischmann is right. But only to the extent that the council, when it discussed that method in May, did not refer to itself as a “committee” that would review the charter. But its discussion just as clearly laid out why: even Mayor Milissa Holland and Council member Steven Nobile, who have been diametrically opposed on most issues—including on charter review—agreed that the council should be the panel reviewing it, not a committee, as long as public input was generously solicited.

Holland somewhat patronizingly said a public committee would not be educated enough on the issues to do an effective job, as council members would: “I hate for us to go through that entire exercise of each getting an appointment, or making an appointment to one individual, and then having our staff to take an extraordinary amount of time to educate them. We were elected by the majority of the residents of this city to make decisions on their behalf, in the best interest of the residents,” she said at the time (although the city charter does call for any necessary resources being set aside for a committee-review process).

Council members Heidi Shipley and Nobile echoed those words, the latter saying he was fine with leaving out an appointed committee “and letting the council do it, as long as it’s open, because that’s the process.”

There was no question that a review would be under way. And in spirit if not in fact, the council was appointing itself the charter review committee, since there would be no appointed committee, and since a charter review “process” was unquestionably under way.

Reischmann’s statement to the small audience at the last charter workshop, in other words, was daring for its sophistry—and never addressed the contradictions between the terminology he was using and the terminology the city had used throughout its official pronouncements and written documentation, with the word “committee” the only difference. The city was trying to have it both ways. Its lawyer was codifying the sleight in terms designed, if necessary, to withstand court scrutiny, as lawyers are trained to do.

It was not necessarily an attempt to mislead so much as the inevitable culmination between what the council has intended all along and the sloppy, contradictory messaging it’s been projecting since May. The hybrid approach and the poor messaging amplified the contradiction: the council was reviewing the charter, with its facilitator serving as proxy in the public workshops, even though its own charter states a committee must be appointed to that purpose. As a result all three charter workshops so far have seen plenty of their time diverted to the ongoing debate over the contradiction, with Reischmann again and again defending the city’s approach—and again doing so with the strictest of legal interpretations on his side: “It’s my opinion that you don’t have to do it through charter review committee. You could, but you don’t have to,” he said.

The council only relented to conducing a charter review with great reluctance, as a majority of members don’t think it’s warranted. There’s been no clamor for it, though the city has never held a comprehensive, top-down review as required by its own charter since 2009 either.

The hybrid approach it finally adopted (“this is not a hybrid,” Reischmann insisted) is an attempt to placate the pressure for a review from Nobile and, to a lesser extent, from Shipley, while ensuring that the process remain firmly in the council’s hands. Any drafting of proposed changes will be limited to what the council decides. But the hybrid approach also depended on projecting a sense of great public participation—or at least inviting participation, though the city administration did very little to promote the workshops.

It’s not clear that the council will choose to draft any proposed amendments when its turn comes to debate the issue in earnest next month, given the small number of solid suggestions at the workshops and the lone one or two submitted online. It may well use the small turnouts as further proof that it need do nothing more than the cosmetic exercise it’s indulged so far, an innocuous proposed amendment or two aside for appearances’ sake.

The law does allow cities to amend their charters on a piecemeal rather than comprehensive basis, with council members opting to draft changes and presenting them to voters at election time. But Palm Coast’s charter spells out what a comprehensive review requires, and that’s an appointed-committee approach.

That’s not the comprehensive charter-review process the council is perceived to have projected. While Reischmann has been playing interference on behalf of the council at the workshops, the political fallout will be the council members’ alone to deal with, slight as it may be (judging from turnout).

But the overall credibility of the process, and by extension that of the council, has not been vibrant as a result.

At the last meeting, Nobile—who in the first workshop had sounded more disenchanted with the process—tried to aid Reischmann’s advocacy (after Reischmann, with City Manager Jim Landon in back of the room like a warden, insisted that he had not been instructed “to come up with a plan as an advocate for a certain position.”)

“We could appoint the five-person commission,” Nobile said, addressing critics of the process in the small audience, “I pick someone, the other members pick someone, and you don’t even have to be involved. This is better, because you’re involved. We’re involving you. This is not part of the charter review. This is just open meetings saying what do you want to see changed, and then ultimately you’re going to vote on it, so regardless of what the city council says, we’re going to put things on there, you’re going to vote on. So we’re not saying you’re going to do this, we’re going to change that. What I’m trying to understand is, tell me what the problem is, and then we could fix it, because what we’re dealing with is an interpretation, and we could argue this interpretation until the day it lands in court.”

The fourth and last public workshop is scheduled for Thursday evening at 6 p.m. at the Flagler Palm Coast High School cafeteria.