The Palm Coast City Council met Thursday afternoon in its second closed-door session this week to discuss litigation, this time regarding the lawsuit former mayoral candidate Alan Lowe filed last month to invalidate a ballot referendum on a charter amendment that appears on the current election ballot.
The council met on Monday to discuss the lawsuit the city filed against contractors of the ill-fated splash pad at Holland Park.
The outcome of neither meeting is known. But signals from Thursday’s closed-door meeting at least suggest that the city appears not ready to settle the lawsuit over the referendum: no special meeting has been scheduled, as one would have had to be, for the council to officially vote on a settlement; the attorney representing the city on the litigation did not contact the opposing attorney at all Thursday after the meeting, and while that of itself does not mean she won’t, it is at least another hint of a lacking resolution; and Mayor David Alfin, who chaired the closed door meeting, said after it: “You’re going to see results of today’s discussion next week.”
The city has until Monday to file its answer to the lawsuit in court. Since no meeting is scheduled, and the only things reporters or the public may “see” of a lawsuit’s proceedings outside of what officials tell them is in the court docket, that strongly suggests that the city will be filing its answer, which would mean that it will be fighting the lawsuit. Alternately, there could also be a filing to the court that a settlement has been reached. But with no council meeting scheduled until Nov. 12, after the election, that seems far less likely.
If the referendum fails, the case would be moot. If it succeeds, it won’t be the end of litigation, said Jay Livingston, the attorney from Palm Coast’s Livingston and Sword and one of two attorneys representing Lowe. The other is Douglas Burnett of St. Augustine’s St. Johns Law Group. Rachael Crews of GrayRobinson is representing the city.
“If for some reason it isn’t resolved, that doesn’t end the case,” Livingston said. “This is not about certifying or not certifying of the vote. This is about the validity or invalidity of the ballot measure.” In other words, if voters approve the measure, Livingston and Burnett intend to press on to invalidate the vote after the fact. Livingston reiterated the fact today: “Even a tallied and certified amendment can be invalidated years after a election if the requirements of the ballot summary statute are not met.”
As astounding–and to some, undoubtedly outrageous–as that sounds, there are at least two such precedents.
In 1995, the Court of Appeal for the First District in Florida invalidated a Jacksonville referendum months after voters approved it in an election.
A Jacksonville citizens group wanted to change the city charter so that members of a city civil service board would be appointed instead of elected. They successfully got the proposal on the November 1994 ballot. But the language was vague. It was made up of a single sentence (“Shall the Charter of the City of Jacksonville be amended to amend
and substitute Section 19.02 to Article 19 of the Charter”), it contained an error of fact (there was no such thing as Section 19.02), it had no ballot summary, which violated state law, and nowhere did it explain the most important thing about the proposal: that charter review board members would be appointed instead of elected.
Two voters sued on Oct. 12, less than a month from the election. They lost at the trial level. The amendment passed that Nov. 8. The lawsuit continued on appeal, and the two voters won three and a half months after the election. The court stated that “whenever a constitutional amendment or other public measure is submitted to the vote of the people, the substance of that measure shall be printed in clear and unambiguous language on the ballot.” Deception is not necessary to invalidate the measure. ambiguity and lack of clarity is enough.
Nevertheless, the Jacksonville case–on which Livingston is relying–is not as strong as another precedent to challenge Palm Coast’s referendum. In the Jacksonville case, “we are only concerned with whether the presentation of the proposed amendment on the referendum ballot complied with the statutory summary requirement,” the court stated.
The inclusion of a ballot summary in the Palm Coast referendum is not at issue. Its validity as clear and unambiguous language is. In that regard, a 1990 Florida Supreme Court case speaks more directly to the issue.
That year, the Supreme Court invalidated a referendum six years after the vote was certified. Sarasota voters had approved a county referendum to change the frequency of a charter review board’s meetings from any time it wished to only once a year. Instead of a ballot summary, the ballot measure had included the full text of the proposed charter language with rather lengthy and intractable language (much like the Palm Coast ballot language). But doing so did not tell voters how the proposal differed with the old language–just as the Palm Coast language does not. It did not explain the most important thing about the change: “By failing to contain an explanatory statement of the amendment,” the Supreme Court found, “the ballot failed to inform the public that there was presently no restriction on meetings and that the chief purpose of the amendment was to curtail the Charter Review Board’s right to meet.”
Livingston has argued that the Palm Coast ballot language fails because it does not clearly explain–or explain at all–that it is revoking voters’ right to approve in referendums any plan by the city to borrow more than $15 million or enter into leases of more than three years.
The Supreme Court relied on its own 1982 precedent–a ballot measure ruled invalid before a vote–to declare the Sarasota referendum “deceptive, because although it contains an absolutely true statement, it omits to state a material fact necessary in order to make the statement made not misleading.”
As the appeal court in the Jacksonville case explained in its own analysis of the Supreme Court precedent, “merely setting forth the text of an amendment without explaining its legal effect on existing provisions can very likely be misleading, as it manifestly was in the instant case.”
The Palm Coast referendum doesn’t restate the text of the proposed charter language so much as it paraphrases it in language closer to a marketing campaign than a transparent ballot summary. “It is not about deception,” Livingston said. “The summary needs to explain the purpose and effect of the amendment. I think it is deceptive, but it doesn’t describe the purpose and effect of the amendment even remotely.”
Three Palm Coast City Council members–Ed Danko, Theresa Pontieri and Charles Gambaro–have agreed in part or in full with Livingston and, perhaps unwittingly, with language in the two precedents. Danko has called it “deceptive.” Gambaro and Pontieri have used less strong language, but both agree that the language should have been clearer, and all three, in wo separate votes, have voted to pull the measure from the ballot. They simply haven’t done it simultaneously. By the time Pontieri had the chance to do so, she switched sides, saying at that point she did not want to disenfranchise voters or set a precedent for future councils that would open the door to such pre-emptive ballot invalidations.
That clearly made Pontieri the swing vote in Thursday’s closed-door meeting discussing Livingstson settlement proposal, with Mayor David Alfin and Nick Klufas consistently wanting to keep the ballot measure alive, and Danko and Gambaro wanting it pulled.
It just as clearly made it very unlikely that Pontieri would pull back from what she had said at an open meeting: “Just because we think that a lot of the voters don’t like this doesn’t make it right to interfere in the election,” Pontieri had said on Oct. 1, “because then in the future, when something favorable is on the ballot, the same thing can be done, because the pendulum always swings to the other side. So if we interfere in this election now, a future council can interfere in a more favorable, or what we think is a favorable election the future. And I am certainly not okay with that. So this direction, this action, is not legal.”
The Livingston offer proposes that both sides stipulate to Lowe’s point and both sides agree to a judge’s order that would enjoin the Supervisor of Elections from counting the referendum results. (Voting machines can be calibrated to do just that, singling out one race not to be counted.) FlaglerLive reported on the offer’s details on Wednesday. (See: “Settlement Offer Gives Palm Coast Council Chance to Pull Embattled Debt Referendum from the Ballot.”)
Local governments are permitted by law to hold closed-door meetings to discuss pending litigation, as long as they restrict their discussion to strategy or settlement offers. Participants in the closed-door meeting are required to keep all proceedings confidential until the disposition of the case. So none of them could speak to the substance of the discussion during the hour and four minutes that the meeting lasted. Alfin, who led the meeting (though generally those meetings are led by the government’s attorney), spoke to the tenor and mechanics rather than the substance of the meeting afterward.
The council is also barred from making any decisions or giving its attorney so much as a consensus on the matters discussed behind closed doors, leaving it to the attorneys present to decipher how to proceed in further settlement talks. Whether the council members abided to that or not will become evident once the transcript of the meeting is released, after the disposition of the matter.
Aside from all five council members around the main conference room in the executive suite at City Hall, participants of the closed meetings included Marcus Duffy, the city attorney, Rachael Crews, the GrayRobinson attorney actually litigating the matter on Palm Coast’s behalf, City Manager Lauren Johnston, and a court reporter.
As required by law, Alfin opened the meeting as a public, open meeting, took roll call, announced the nature of the meeting and its expected duration, then closed it to only those participants. He reopened the meeting an hour later to declare it ended. All participants “vocalized their points,” he said. “I think from a community standpoint it was a well-run, well-deliberated meeting.” He reiterated: “I think you’ll learn something next week.”
The council does not have a meeting next week–it doesn’t meet again until Nov. 12, when it will have both a business, or voting, meeting and a workshop. That will be the last meeting for the current council. The new council, with three new members, including the mayor, will be sworn in on Nov. 19. All of which means that Thursday’s closed-door meeting was the only and last occasion the council would have to discuss the litigation, absent another closed or a special meeting. Neither is on the horizon.
Half an hour before the closed-door meeting, Circuit Judge Chris France scheduled a hearing in the case for Nov. 1 at 11:30 a.m. The hearing was scheduled before Thursday’s meeting, and the court sets its calendar independently of attorneys’ negotiations. Those hearings are often scheduled then cancelled because of such things as settlement negotiations, or settlement agreements.
All of that leaves public and press with what amounts to a tea-leaf-reading session, if with rather telling venation.
Deborah Coffey says
It needs to fail. We are living the effects of this Council’s reckless spending.
Standing in the middle of Palm Coast Parkway says
Welcome to the city of Palm Coast, Florida, where the citizens pay their taxes to the city, city workers regularly get the stink eye from elected officials and residents; elected officials all want to be in charge but don’t carry out their elected duties, and in the end, the lawyers always get rich.
Jim says
Let’s all do the right thing and vote against this ballot proposal. Why would any sane Palm Coast resident vote to allow elected officials to borrow money for anything beyond what is approved now? I don’t trust them with that kind of authority. I think the large majority of residents here feel the same way.
Celia Pugliese says
Just look at the millions approved currently for expansion of our utilities into new annexed areas other than first using those capacity funds to enlarge over growth an bigger capacity needs, our Plant One . Nope administrators keep asking for millions for projects that should be funded by developers like ITT built all the infrastructure for Palm Coast and those current developers want us to pay for it now! Now they expect us to come up with maybe 4 or 5 thousands maybe, per household thru 2028 for 240 millions for Plant One in our utilities fees raise. Can someone calculate better my figures? Please do so…TY.
Unthinkable that this city in early 2,000 refused to buy out for mere $200,000 in foreclosure the whole 279 acres of the Matanzas Golf Course the big absorption sponge for the L section and now after sold and being paved over and storm water drainage obstructed in those 279 acres causing flood in L section, city approved to spend 10 millions in a 13 acres lake trying to drain what 279 acres did before. Please city engineering and planning do not tell me I am wrong…I am here since 91 and lived in that area for 6 years and never ever with bigger than Milton hurricanes the L section never flooded while the Matanzas Golf Course was working. So these are the figures we need to keep in mind why our utilities fees are far higher than our power bill now and see what is coming…because if we do agree with higher fees will have a poop catastrophe. soon given increased grow capacity now! So lets remember this at the ballot box ; do we need pro developers candidates or pro residents needs candidates?