Palm Coast City Attorney: Wait Until November for Heighter Replacement by Appointment, Not Election

Last Updated: 12:44 p.m.

Palm Coast’s city attorney is recommending to the council to appoint a member to the seat just vacated by Cathy Heighter, who has resigned, but also to wait until November to make that appointment, and to make the appointment effective for the remaining two years on Heighter’s term, foregoing an election for that seat until 2026.




The attorney drafted a a brief opinion to the council Monday afternoon. The opinion was emailed to council members early this morning. The attorney’s interpretation of the city charter’s language was necessary because the charter’s provision on vacancies continues–despite a recent rewrite–to lack clarity. To some extent, so does the attorney’s opinion, which leaves room for the council to fill in remaining interpretations.

The charter directs that if a council-seat vacancy occurs within the first two years of a four year term, the council must appoint a replacement within 90 days. But if the vacancy falls within six months of the next “regularly scheduled election, the remaining Council members may delay the appointment.” (Emphasis added: delaying or not delaying is the council’s decision.)

The charter’s wording does not make it entirely clear whether the delay in the appointment is to enable an election or simply to delay the appointment until after the election. If it’s the latter, the wording doesn’t make clear whether the delay is to accommodate the seating of the next council to give it a voice in the appointment, or whether current council members should make the appointment.




In this case, at least two council members, possibly three–Mayor David Alfin, Council members Ed Danko and Nick Klufas–will be gone by the end of November. Danko and Klufas are running for County Commission seats. Whatever today’s outcome, they must resign their seats at the end of November. Alfin is running for re-election. His fate may not be known until November 5 if he survives today but faces a runoff. New council members are sworn in during the first December meeting of the council.

“I recommend that City Council wait until after the upcoming November 5, 2024, election to appoint a new City Council member,” Duffy wrote. “Waiting until after the upcoming November Election will give both City Staff and Council an efficient amount of time to go through the process of creating an application, interviewing candidates and ultimately appointing a Council member who meets the qualifications for Office under Article IV (1)(b) of the City Charter.”

In other words, the city and the council may begin the search for a new member, which takes several weeks anyway, by advertising the position, gathering resumes and giving council members time to review them. But that still leaves open a key question: which council should make the appointment–the current council, or the one including its new sworn-in members in the first week of December?

“The current council makes the decision about who makes the decision,” Alfin said today. “That’s going to lead us to a discussion on the dais about process.” It’ll be an interesting dynamic, he said, with a council now lacking a tie-breaker, if it has to come to that.




Alfin said he would go either way. “I would like to ensure that the current city council has sufficient time to form consensus on a process that is fair and deliberate, which means I could go either way,” Alfin said. whether this council or the next council is the decider is less important to me than the process be fair and complete.”

Council member Theresa Pontieri, who is poised to be the senior member of the council come December, depending on Alfin’s fortunes, is of two minds about an appointment versus an election. “Whether or not we as council decide to appoint somebody or send it to the November election, I don’t know, I have honestly not made that determination myself,” she said, but she sees a lack of time for quality candidates to qualify. Even if there were a brief window for qualification, chances are that candidates would have to pay the nearly $1,000 to qualify, since there’s no time to gather upwards of 400 petitions, “precluding many people from running.” Pontieri is uncomfortable with that sort of exclusion.

The appointment route gives the council ample time to lay out the process and give due consideration to the appointment, with lots of public comment, Pontieri said. “I truly am on the fence with regards to what the better route is,” she said. She is off the fence about these factors: the pool of candidates must be solid; the interview process must be public; and the current council must make the appointment, if there is to be an appointment. She is leaving it to the mayor to decide whether a special meeting is necessary.




Alfin said he’s not aware of any agenda item in coming weeks that would warrant accelerating the appointment, though the council is scheduled to approve the budget and next year’s tax rate at a pair of hearings in September.

Klufas said today he favors having the current council make the appointment, though he said that may hinge on the quality of candidates the search will produce. “We have a pretty good track record,” he said.

What is clearer from the city attorney’s opinion, with no dispute from Alfin, is that a special election concurrent with the November ballot appears out of reach. Supervisor of Elections Kaiti Lenhart said she would have to have candidates qualified by Sept. 6, when the ballot goes to the printer. Absent a special meeting, the council is not scheduled to meet until Aug. 27, leaving hardly any room for any kind of qualification process short of a messy scramble. That gives added weight to the coming appointment, because it would be for a full two years and could give that appointee the edge of incumbency in the 2026 election.

The city has not lacked for resignations in the last few years. Heighter’s is the fifth in six years. With one exception, all seats were quickly filled by appointment after two-week windows for candidates to apply. The exception was the resignation of Mayor Milissa Holland, when the council very quickly scheduled a special election.




Steven Nobile resigned his District 3 seat on April 23, 2018. Two weeks later the council agreed to advertise the position for two weeks, hold open interviews (only three people applied), and make the appointment in early June. The lawyer Vincent Lyon was appointed on June 6, seven weeks and two days after Nobile’s resignation.

Jack Howell resigned his District 2 seat on July 9, 2020, weeks before that year’s primary. The council elected to appoint a replacement after a two-week search for candidates, and to set a special election for the November ballot. Jon Netts, the former council member and mayor, was appointed on Aug. 4. (Netts died in early 2021.)

Holland resigned her seat on May 18, 2021, six months into her second term. The council the next day elected to hold a special election on July 27, which Alfin won. The city had to pay for the special election.

Victor Barbosa resigned his District 2 seat on March 1, 2022, just 16 months into his first term. The council almost immediately advertised the position and by March 16 had eight applicants. John Fanelli, the school district administrator, was appointed on March 22, and a special election set for that year’s midterms.