MINUTES OF

POLK COUNTY CHARTER REVIEW COMMISSION

NOVEMBER 27, 2001 

Chairman, Dan Costello, called the meeting of the Polk County Charter Review Commission to order at 6:00 p.m. on the 3^rd floor conference room of the Citrus & Chemical Bank, Bartow. Commissioner Nunnallee led the prayer and Commissioner Gernert led the Pledge of Allegiance.

Ms. Swearengin called the roll. All Commissioners were present, with the exception of Commissioners Allen and Hunt who gave advance notification of their absences in accordance with the Commission’s Rules.

The Chairman said he would like the record to show the Commission had a quorum. 

The first order of business was for the approval of the minutes for November 13, 2001. 

The Chairman said before the Commission entertained a motion for approval, he noted that there had been some minor corrections made since the mailing of the minutes.  He said on page 16, the fourteenth line from the top, where it said “Mr. Spitzer”, before the Mr. was put in there was a “the” there, and it had been replaced with “Mr.” He said on page 23, on the seventh line from the bottom of the page the word “only” was inserted between “with and one”.  On page 32 on the seventeen line from the bottom the letters I or S were replaced with “IRS”. 

The Chairman asked if there were any further corrections?

Commissioner Strang said he mentioned a couple of minor corrections to Cindy, which were not substantive.

The Chairman asked if there were any further corrections.  There were none. 

Commissioner Nunnallee made a motion to approve the minutes with corrections and Commissioner Stoer seconded the motion. 

The Chairman asked if there was further discussion, there was none.  The motion carried. 

The Chairman said the next item on the Agenda was Reports.  He said he had a brief report that he would like to make. 

He said there was an article in the Ledger that past week on a group that had met, and was going to be pushing the issue of an appointed superintendent.  He said his name was mentioned in that article, and he wanted to make it clear to the commissioners and for the record that he was not a member of that group.  He was invited as the chair of the Charter Review Commission to attend that meeting in order to explain the role of the Commission, and the option that the School Board had to request the Commission to put the matter on the ballot.  He said there were two requests for budget items that he needed to get their approval on.  One was a projected budget through April of 2002 and the other was for expenditure approval for expenses incurred since October 23, 2001. 

Commissioner Strang made a motion for approval of expenses incurred since October 23, 2001. Commissioner Price seconded the motion.  The Chairman asked if there was further discussion?  There was no further discussion.  The motion carried. 

The Chairman said the second item was a projected budget trough April 2002, which was also included in their packages. 

Commissioner Price made a motion for approval on the projected budget for 2002, and Commissioner Gernert seconded the motion. 

The Chairman asked if there was further discussion?  There was none. 

Commissioner Price said there had been some discussion about additional expenditures, and she asked if that would be presented at the time that they deemed that was necessary?

The Chairman said that was correct. 

Commissioner Price asked if the projected budget would take the Commission through April?

The Chairman said yes, through April 3^rd. 

The Chairman asked if there was further discussion?  There was no further discussion.  The motion carried.

The Chairman said that the commissioners had also been given a revised meeting schedule.   He said the revision was made on November 26, 2001, and that revision date should be listed on the very bottom of that page.  He said the revisions consisted of changing the public hearing times from 6:00 p.m. to 7:00 p.m. There was also a change in the time of the presentation of the Commission’s report to the County Commission.  He said he talked to Mr. Keene’s office, and they indicated to him that there was a meeting scheduled for April 3^rd, so rather than have a special meeting just for the Charter Review Commission on April 2^nd, they asked the Charter Review Commission to go to their meeting at 9:00 a.m. on April 3^rd, which he thought was on Wednesday, and that would be much more preferred than the way they had it previously scheduled.   He said those were the only two changes, and he said he assumed without objection that date could be changed to April 3^rd, instead of April 2^nd.   

He said one other item that he would like to discuss with them were some speech requests that had already been given to the Commission. He said George Lindsey had given one, and was scheduled to give another, and Chris McLaughlin was scheduled to give one, and he said he had two that he had scheduled.  He asked the commissioners if they were invited to speak, would they let Ms. Swearengin know who the group was that they spoke to, and the number of people that were there, so that information could be included in the Commission’s report to the County Commission.

The Chairman said one of the powers of the chair was to appoint committees.  He said they had avoided that thus far, but the committee that he was referring to was very important.  He said he had spoken with the individuals and they had agreed to serve.  He said he would like to appoint an Education Committee whose function would be to provide the Commission with recommendations on a public education campaign, if any, after they concluded their business on April 3^rd.  He said he had asked Bob Gernert to chair that committee, and Artis Dukes and Karolyn Nunnallee had agreed to serve.  He said Ms. Swearengin would give them the support that they required in terms of noticing their meetings, and Kurt Spitzer would be available to assist as well.  

The Chairman said that completed his report.  He asked Mr. Spitzer to present his report to the Commission.

Mr. Spitzer told the commissioners in their packages that he sent them, in addition to the documents for the items on the agenda that evening, were two documents, and one was a draft salary amendment, which he believed embodied their decision that they made at their last meeting.  Also, there was a brief analysis of the salaries for the sixteen other charter counties in Florida.  He said the salary if approved that November would be $49,500.  It provides that the County Commission shall adopt an ordinance fixing the salaries every two years in October, and it provides that the County Commission may adjust the salary by a majority plus one vote, the extraordinary vote of the County Commission, whether that be five commissioners or seven, and provides that any increases cannot exceed the percentage increase in the salaries granted to county employees for the previous two years or the percent of change in the Consumer Price Index for the previous two years.   He said there was some discussion as to how that would be calculated during their meeting, and he did not attempt to address that in that document.  He said he felt that would be addressed by the County Commission either by an ordinance, policy or a resolution. 

 He said he would be happy to respond to any questions, or if they had any suggestions for changes. 

The Chairman said that the final action on those changes would not be until January or the month after, and he asked Mr. Spitzer to draft them in the event that the Commission might have comments on the draft, so if it was not what they intended then it could be revised. 

Commissioner Lindsey asked if the language regarding increases acknowledged the compounding effective of two years or not?  He said if it was the average of the two previous fiscal years for county employees, and one year they get two percent and the next year they get four percent, and the average of that would be three, and if that was done again two years hence, they would be getting further behind.  He asked if the alternative, CPI, would compensate for that?

Mr. Spitzer said he thought those sorts of details would be left to the County Commission to resolve. 

Commissioner Lindsey said the Commission needed to make the language clear.  He said the Commission had come to the resolution that $49,500 was the number, and if they didn’t do something to maintain its buying power, for lack of a better word, that gap was going to widen over time.  He said his intent was not to accelerate it, but to keep it constant. 

The Chairman said Commissioner Lindsey’s point was well taken. He said one concern would be making the language too complex for the voters.  He said it did require an ordinance, and the ordinance had to spell out the details, and he was hoping the language could be fairly broad, if possible. He said he understood what Commissioner Lindsey was saying. 

Commissioner Lindsey said if the word “average” were taken out, it would read, “Any increase shall not exceed the percentage increase in the salaries of county employees for the previous two fiscal years….”.  He said he didn’t want to use the forum to quibble over that issue, and he told the Chairman he was sure he understood the intent. 

Mr. Spitzer said he thought that revised language would get them there.

 The Chairman said when they see it again, unless there was objection, they would go ahead and delete the word “average”.  The Chairman asked if there were any further comments?  There were no comments. 

The Chairman asked if Mr. Spitzer had any comments on the county commissioner average salaries that were computed? 

Mr. Spitzer said for the Commission’s information, the Chairman also asked him to average the salaries for non-charter counties, which had been done, and they were $35,759 for the sixty other counties in Florida that were not charter counties. 

The Chairman said he would like to add that some of those charter counties were extremely small.  He said he thought there was one with $20,000. 

Mr. Spitzer said there were a few that were less than $20,000. 

The Chairman asked Mr. Spitzer if he had anything further to report to the Commission?

 Mr. Spitzer answered no. 

The Chairman asked Mr. Watts if he had a report to present to the Commission?

 Mr. Watts said he had nothing affirmative to report.  He said he did need their guidance on one thing, and he thought Mr. Spitzer’s language, which he reviewed with him, accurately and legally expressed the motions that were passed, but he would like their record to give them some clarification of what was meant by the phrase “and other compensation” in that draft language.  He said he wasn’t sure that had been discussed in detail at the last meeting.

The Chairman asked if that language was in the present charter?

Mr. Watts said that was correct, but there was an ambiguity there with respect to retirement contributions on which he had previously given them an opinion that they could not make the commissioners a member of the retirement system unless they voluntarily withdrew, and such other benefits as were commonly enjoyed by employees of the county.  He said he wanted to make sure that before they conclude that they had some conversation about what their intent was on that language.  He said it didn’t have to be that evening, but before they adopt the language.  

The Chairman said there were a couple of commissioners presently on the Charter Review Commission that had served on the previous Charter Commission, and he asked them if they had any comments on what “other compensation” meant?

Commissioner Strang said he would only observe that it was not an inconsiderable amount, particularly taking the health benefits and the retirement benefits. He said they were 17% of compensation, as he understood it. 

The Chairman said that was probably at least one-third of the salary figure. 

Mr. Watts said it was not taxable though, and one-way of clarifying it would be to say “and other taxable compensation”.   Mr. Watts said at some point he would like to have that clarified for the legislative history of the Commission’s work. 

Mr. Spitzer said that could be interpreted to mean that the total compensation shall not exceed a value of $49,500. 

Mr. Watts said it could be so argued with the way it was then worded, and it hadn’t been applied that way. 

The Chairman asked if he was correct in assuming that it could have been argued that way with the $33,500, as well?

Mr. Watts said yes it could have been. 

Mr. Spitzer said, the phrase, “other compensation” was fairly common in most charters. 

Mr. Watts said yes it was. 

The Chairman asked the Commission, without objection, if he could ask Mr. Spitzer and Mr. Watts to work on that issue and come back with a recommendation to the commissioners?  There were no objections. 

The Chairman asked Mr. Watts if he had anything further to report to the Commission?

Mr. Watts replied no. 

The Chairman said they were now down to the Issues Agenda, and the first item was Ordinances by Initiative, and that referred to the Charter, Article 6.1, and he read that article to the Commission. 

The Chairman asked Mr. Spitzer to report on that issue. 

Mr. Spitzer said the Commission had a memo on that subject, and the other remaining issues for that night’s agenda.  He said attached to the memo was a spreadsheet summarizing the policies of the various charter counties in Florida.   

He said he believed there were several different questions that they might want to address, and he could go through those.  He said he suspected that, generally speaking, one of the threshold questions would be, was the current policy in the Polk Charter as it related to ordinances by petition and charter amendments by petition too stringent? Not stringent enough? Or was it at an acceptable range in terms of the number of signatures required to place a question on the ballot? He said in addition to the percentages of the signatures required there were several other questions that could be reviewed: the distribution of percentages within commission districts, and what should the minimum percentage be; asked about the duration of the time which should be required between the time the petition was first presented, and when the requisite numbers of signatures were obtained; the length of time between when the amendment becomes effective, if it was placed on the ballot and adopted by the electorate, and when that ordinance can be revised by the County Commission.  Should it ever be without a subsequent amendment proposed by petition, or should it be not before the next election, and he believed that was the policy of the Polk Charter, the thought being that the public had the right to vote on at least two new county commissioners at that time, or should it be a time certain?  One year, or two years, or something like that?  Or should it be amendable only by an extraordinary vote of the County Commission at some point in the future? 

He said he would like to mention a couple of other issues that were worth touching on, and he would look to Mr. Watts for some amplification on that issue.  He asked regarding the presentation of the question to the Supervisor of Elections, what was the role of the supervisor when the petition with the proposed ordinance was presented to the supervisor?  Was it only truly a technical role or did the supervisor have some role in determining whether or not the proposed ordinance was consistent with the charter, and consistent with general law, and the Constitution?

Mr. Watts said his recollection of the language as it was then phrased was not to give the supervisor any explicit or implicit duty, but the supervisor did have some familiarity with the requirements of ballot language, and so forth, and may well be able to tell the circulators that they have a fundamental flaw, (a correctable flaw) in that petition before it was circulated.  He said that would be the only official in county government that would be in a position to give that type of informal advice.

The Chairman asked who would have standing to go into court to make a determination whether it was an appropriate initiative referring to ordinances or not, and would anybody challenge that?

Mr. Watts said any elector could bring an action for declaration of the validity or the invalidity of a proposed referendum. 

The Chairman asked if the County Commission could do that as well?

Mr. Watts answered yes, on one of the grounds outlined in the Charter, and not simply because they thought it was a bad idea, but because it offends the Constitution or it offends some general law, or it offends the Charter.

Commissioner Lindsey asked currently on the state level for a constitutional amendment what were the percentage requirements of signature, and the time that they were “alive” for lack of a better word?

Mr. Watts said he did not know the answer to that by memory. 

Mr. Spitzer said he thought it was 8%. 

Mr. Watts said it was 8% and it included a certain number in each congressional district in the state. 

Commissioner Lindsey asked Mr. Watts if he would get that information for the Commission?

Mr. Watts said yes. 

Commissioner Lindsey asked if he was right in assuming that the Attorney General passes judgment on the constitutionality of the proper language without the merits of the issue, and he asked if that was State procedure?

Mr. Watts said he thought the Attorney General had an initial role to play, but at a certain point when a certain number of signatures had been collected sufficient in the eyes of the drafters of the Constitution to make it worth the court’s trouble, the Attorney General brings a petition to the Supreme Court and asks the Supreme Court whether that amendment, if it were passed, would meet the constitutional requirements, and was the ballot language clear and not misleading, and did it address a single subject? 

Commissioner Lindsey asked, with that guideline, who would be the appropriate officials at the county level to make that same clerical judicial determination?  He asked if it would be the County Attorney and Chief Judge or who would be those designees?

Mr. Watts answered the local equivalent of the Supreme Court would be the Circuit Court, and it wouldn’t necessarily be the Chief Judge.  He said one could not prescribe which judge would hear it, but it would go to the Circuit Court, and the question was on whose petition.  He said the local equivalent of the Attorney General is the State Attorney, but the State Attorney was elected from a multi county circuit, and it was doubtful that the Charter could assign duties to the State Attorney. 

Commissioner Lindsey asked in the State Attorney’s absence where would it go?

Mr. Watts said they could ascribe that responsibility to the County Attorney, although the County Attorney did not have the independence that the State Attorney or the Attorney General had in the constitutional scheme. 

Commissioner Strang asked if they were talking about the validity or the proper wording of a petition for either an ordinance or an amendment to the Constitution? 

Mr. Watts said in that case they were talking about an initiative ordinance. 

The Chairman said the first issue was on the ordinance. 

 Commissioner Strang asked if the manner of discussion was regarding the proper legal wording?

 Mr. Watts said that was correct.

 Commissioner Strang said one county had apparently lodged that responsibility with the Supervisor of Elections. 

 Mr. Spitzer said there were a few charters that did that.

 Commissioner Strang asked if that was working? 

 Mr. Spitzer said he had no knowledge of actual practice. 

 Commissioner Strang said he would like to make a plea for something similar to that because requiring petitioners to define what was the proper wording of an ordinance was asking for all sorts of chicanery in his estimation from incumbent office holders or whomever, and he thought in the name of justice and fairness there should be a time certain for some local government official blessing the wording of a petition, so that the petitioners can then go out with confidence that the signatures that they were seeking would be valid.  

 Mr. Watts said it would be possible to give that responsibility explicitly to the supervisor, whereas now, the petition was merely filed with the supervisor at the beginning of the circulation, and the implicit there was that the supervisor would speak up if there was something clearly wrong with the measure, but they could make it an explicit duty of the supervisor at that point, and the problem was that would not legally bind a court if some elector later wanted to challenge it, and bring a challenge in the Circuit Court. 

Commissioner Strang asked if it would put the onus on the supervisor to defend any assaults against that wording, and he asked if he was correct?

Mr. Watts replied if the supervisor had cleared the wording, then yes, the supervisor would be obliged to put it on the ballot unless prevented by a judge. 

The Chairman said he didn’t think that particular part of the charter had been tested, and he asked if he was correct?  He said he didn’t think there had been any initiatives for ordinances.

Mr. Watts said no there had not.

Chairman Costello asked what would happen in using for instance the ridiculous example, that one would like to change the leash law so that only brown dogs were required to have leashes.  He asked what would the petitioner do?  He asked if the petitioner would write a letter and say he would like an ordinance stating that only brown dogs need to be leashed, and once that was done, he thought what Commissioner Strang was saying was how did that petitioner then decide on the wording, and the technical aspects of the wording, and so forth and so on because ordinance was supposed to be in some sort of format, and he asked who would do that? 

Mr. Watts said as it was presently worded it was the sponsors responsibility to present the text of the proposed ordinance to the supervisor. 

Commissioner Strang said he thought the way that worked in practice was first the petitioners organize a Political Action Committee, and then they go to the supervisor and register and post their bond and get set to gather petitions, and he thought it was at that point where the supervisor should say this language won’t pass muster or yes it will, and have a time in which he or she had to do that. 

The Chairman asked what standards would the supervisor use?

Commissioner Strang said he would say the state and U.S. Constitution.  

Commissioner Moore Bailey said her comment was basically regarding the question the Chairman had asked regarding the responsibility that the petitioner would have, and would the petitioner not have legal counsel look over that document before it was presented to the Supervisor of Elections, and she asked is that how it was basically done?

Commissioner Lindsey said the fact of the matter was as Commissioner Strang suggested the petitioners would draft the language, submit it to the Supervisor of Elections, and the Supervisor of Elections would in turn hire an attorney to anoint it, and send it back to the Supervisor of Elections for circulation under his premise that the Supervisor of Elections is less subject to chicanery, and he would agree with that procedure. 

The Chairman replied, so the constitutional law standard and the general law standard would be exercised by the Supervisor of Elections, and in other words, it had to meet those two tests, and it can’t be inconsistent with general law, and it can’t be inconsistent with the Constitution, and he asked so who makes that judgment the Supervisors of Elections who is not an attorney?

Commissioner Lindsey said that the Supervisor of Elections would do the same thing that Secretary Harris did two years ago, and refer to counsel, and make that representation. 

The Chairman asked that the Commission continue with questions to Kurt Spitzer, and then continue with comments from each commissioner on that particular issue, and decide if they wanted to change that article in someway or not change it, but if they wanted to change it, how would they want to change it?

The Chairman asked if the commissioners had further questions from Mr. Spitzer?

Commissioner Strang asked Mr. Spitzer to go through the step-by-step process of the ordinance by petition.  He said he didn’t understand the procedure.

The Chairman said that issue was in 6.11 of the Charter.

Mr. Spitzer replied to Commissioner Strang’s question by stating that the sponsor presented the text of the ordinance to the Supervisor along with the petition form itself.  He said there were some notice requirements.  He said the period of time for obtaining the signatures was one year in the Polk Charter, whereas in other charters, he believed it was a little shorter than that.

Mr. Watt’s confirmed that was correct.

Mr. Spitzer continued by saying if sufficient signatures were obtained, which was 6% countywide, and 6% within each commission district, the Supervisor either verified the signatures or invalidated them, and then if there weren’t sufficient signatures the petitioning organization had thirty days to go back, and try to obtain additional signatures that would be presented to the County Commission.  He said he believed, the County Commission had sixty days within which to act on the proposed ordinance if they choose not to adopt it by themselves, and it would be placed on the next general election, which occurred forty-five days after the adoption of the resolution by the County Commission. 

He said what they hadn’t touched on at that point, was limitations on ordinances by initiative on some excluded subjects.  He said they varied from charter to charter, but they were fairly common in most charters, and he thought some of those subject matters were pre-empted to the County Commission either by general law or the Constitution, and in fact most of them were. 

The Chairman said he would like to read those for the Commission, and they were as follows: county budget, debt obligations, capital improvement programs, salaries of county officers and employees, the assessment or collection of taxes, and the rezoning of land. 

Commissioner Strang said, so in general, it was the same as for charter amendments except for the specific percentages of voter signatures required, and with an ordinance the Commission had an opportunity to get out in front of the parade. 

Mr. Spitzer said they could adopt ordinances, as they could on other matters by themselves, but only the electorate adopted charter amendments, and the percentages were different. The percentages for charter amendments by petition were 7% as opposed to 6%. 

The Chairman asked if the Commission had further questions of Mr. Spitzer or Mr. Watts?

Commissioner Strang confirmed that they were speaking specifically about ordinances.

The Chairman said that was correct.

Commissioner McLaughlin said as a point of clarification, he had reviewed a lot of the charter counties, and that particular process seemed to be fairly boilerplate, and he asked counsel if they agreed with his observation, and the language in other counties was almost verbatim?

Mr. Spitzer said yes it was very similar.  He said there were as with any section of a charter small differences here and there, but in general it was very similar to most charters. 

Commissioner McLaughlin asked Mr. Watts if he was aware of any situation where a person tried to have an ordinance or an amendment placed on the ballot, and then the language was deemed invalid, and they weren’t allowed to revise it, and he asked if that was a common occurrence? 

Mr. Watts said if he was speaking of ordinances by initiative, he was not aware.  He said he was aware of a number of charter amendments that have been tested, and language had been found insufficient.  He said in Volusia County in particular there was an initiative amendment called “Save our Sheriff”, and the purpose of which was to restore the Sheriff to full constitutional status rather than have him continue as a charter officer, and the court held that the language was misleading, and that the Sheriff was never lost and didn’t need to be saved, and struck the matter from the ballot. 

Mr. Spitzer said he was not familiar with any similar occurrences as related to ordinances, but he said he believed that the procedure to adopt an ordinance by petition was used very rarely, and he was not familiar with where it had been used. 

Mr. Watts said, as a practical matter, if one received a certain number of signatures going on a petition, and it appeared that the momentum was building, he thought Commissioner Strang had said it properly that the commissioners were likely to get in front of the parade.

Commissioner McLaughlin said his question was really for Commissioner Strang.  He said he was not sure on what his point was regarding the chicanery issue, and he asked where was he missing the link?

Commissioner Strang replied, here is the case in point, and that was on the state level.  He said there was a very broad citizens movement afoot, and he believed it concerned the medical use of marijuana, and they got their petition together, and somehow the matter went before the Florida Supreme Court.  He said that was in January or earlier before the general election, and the Supreme Court for whatever reason chose to wait months and months until it was too late for the petitioners to start another drive, and then they declared, by what he considered a specious argument, that the petition was not constitutional, and that completely stopped the petitioners from gathering any more petitions.  He said, as he understood it, things like that had happened throughout Florida history, and as far as looking toward the State about what is fair, just, and right he thought they needed to look elsewhere to find out what was fair and right. 

He said he couldn’t help but remember until 1998 with the Constitution Revision Commission that Florida had the most restrictive ballot access laws in the whole western hemisphere, even worse than Cuba, so he didn’t feel they should look to Tallahassee to find out what was fair and just and equitable.  

Commissioner Lindsey said that was not his premise.  He said his premise was what did the others do?  Because everything they had done so far they had asked the question what did others do, whether they choose to acknowledge it or ignore it was at their discretion, and so his query was not predicated on anyone doing it right or wrong, but how did they do it.  

The Chairman asked on ordinances by initiative, if there were other questions before they went around the table, and stated where they were on that issue?  The Chairman said he would like to divide that subject into two issues, with the first being keep the language the same or change it in some way, and if so, what ways? 

The Chairman asked Commissioner Lindsey for his thoughts. 

Commissioner Lindsey said he would not have any objection to changing it, and his suggested change might be to make them both the same.  He said he knew that they were only addressing ordinances only, but he was not convinced there should be a double standard.  He said he was more inclined to believe there would be one standard for both. 

The Chairman asked in terms of process or terms of percentages?

Commissioner Lindsey answered percentages, and truly the process should be much the same.  He said he would consider at least to throw out for discussion that if 6% was the number, then perhaps it should be 6%, but not less than 4% in each district so the bar was lowered a little bit with requiring countywide sympathy to the issue, but 6% overall and 4% in each district as a consideration.

The Chairman asked how could the process be the same if the County Commission inserts itself at some point in time in the ordinance initiative process, but they don’t do it in the Charter Revision Process?

Commissioner Lindsey answered the process where it was similar, as Commissioner Strang had mentioned, was going through the Supervisor of Elections process and the timelines between the elements.

The Chairman asked Commissioner Masters for his comments.

Commissioner Masters said he would make no change.

The Chairman asked Commissioner Price for her comments. 

Commissioner Price said her only change would be perhaps some discussion on the timeline of one year.

The Chairman asked for the ordinance?

Commissioner Price answered yes. 

The Chairman asked Commissioner Gernert for his thoughts. 

Commissioner Gernert said he would entertain the discussion involving the Supervisor of Elections and the legality of their wording.  

The Chairman asked Commissioner McLaughlin for his comments.

Commissioner McLaughlin said he really had no change in the process.  He said he didn’t think that they could impose upon the Supervisor of Elections the obligation to advise on the legality issue, simply because ultimately it was going to fall to the courts to determine that, and the Supervisor of Elections may not be an attorney, although they clearly had the staff to do it, but overall he thought the issue was he hadn’t seen a lot of citizens come before them and say that was a real pressing and burning issue for them, and that they need that changed, and he didn’t think it would rise to the level of being put on the ballot. 

The Chairman asked him even though it would be a minor one, would he advocate some change?

Commissioner McLaughlin answered yes, but he would probably do that without actually putting it on the ballot if there was some other way of making it clear, or maybe the Board of County Commissioners could adopt an ordinance recommending that.  He said he didn’t think it rose to that level, but he would be open to it, if they went to a public forum and a lot of people spoke for or against or whatever, and he didn’t oppose it.  He said as far as the percentages issues he would favor reducing the percentage in the single districts that would be required, because he thought it might be burdensome for some citizens to travel that far, and we were a very large county. He said he didn’t favor eliminating it completely, but he could see going to 6% overall and 4% on single member or something like that. 

The Chairman asked Commissioner Nunnallee for her comments.

Commissioner Nunnallee said the only change that she could see was the 6% and 4% so that they could make things a little easier. 

The Chairman asked Commissioner Stoer for her comments.

Commissioner Stoer said she agreed with Commissioner Nunnallee’s comments.

The Chairman asked Commissioner Dukes for his comments.

Commissioner Dukes said he tended to agree with Commissioner McLaughlin.  He said he didn’t see where it was a pressing issue, but one point had been made, and he thought Commissioner Lindsey, made it on making the percentages uniform, and he said he would be more inclined to agree with that. 

The Chairman asked Commissioner Strang for his comments.

Commissioner Strang said he would like to see the percentages lower, but more importantly to him than that was a procedure for official validation of the wording. 

The Chairman asked Commissioner Moore Bailey for her comments.

Commissioner Moore Bailey said she was certainly in favor of a change with the percentage lowered and the time certain, and she basically liked the idea, but she didn’t know if the petitioners were not responsible for making sure before that document was presented to the Supervisor of Elections should have some legal arm with it.

The Chairman said he would entertain some suggestions also. He said the only problem that he had was that issue had not been tested, and they were going to change it even though it had not been tested, which concerned him some, but he would have an open mind on some of the changes. 

He said it appeared to him from what they all said that there was certainly a significant majority, and thought even two thirds who want to initiate some changes to the charter language and Ordinance by Initiative.  He said he didn’t even need to take a vote on that, and he thought that was fairly apparent from what they all had discussed.  He said they could proceed and they could get into the percentage issue first, or they could go to the legal review issue.

The Chairman asked Commissioner McLaughlin if he could call it legal review issue, and he asked if that was language that would agree with what he had been saying about the fact that the Supervisor of Elections went to a technical review to make sure that it was consistent with the prohibition against inconsistencies with the Constitution and general law?

Commissioner McLaughlin said that was correct, but to follow up on his point, they might just be able to call Lori Edwards and say could you adopt a policy in your office to do this?

The Chairman replied, but the problem would be that it wouldn’t have the strength behind it, and she could be challenged in court. 

Commissioner McLaughlin said even if she were challenged, he still didn’t believe she would have the ultimate authority over that legally, because even if she said it was valid, but it was not valid from the court’s perspective the courts could overrule it, and have the ultimate authority.

The Chairman asked Mr. Watts if he would care to comment on that?

Mr. Watts said he thought that Commissioner McLaughlin was correct, in that they could give the Supervisor the duty to give a technical review from her perspective and experience of the sufficiency of the ballot language, but that was not going to bind a court. 

The Chairman said he wanted to remind the commissioners that they were not writing the language that evening, but what they were doing was giving their consultants instructions as to how to come up with some proposed revisions to the language. 

Commissioner Lindsey asked if that wasn’t just simply analogous to the County Commission that writes ordinances.  He said they don’t particularly write them, but they have staff that does, and presumably the County Attorney writes an ordinance that meets muster, but it too was not immune from challenge through the courts, so there was no procedure that was going to give absolution to the process.  He said the fact of the matter was the Supervisor of Elections had like every other constitutional, an attorney on call, that would pass judgment on the language and give their best opinion, and then it would either be subject to challenge or not. 

Commissioner Strang said that would be sufficient in his opinion.  He asked if the Supervisor didn’t have the obligation not to put on the general election ballot a question about a question that she knew to be flawed?

The Chairman said he didn’t know, and he would ask Mr. Watts if he could answer that.

Mr. Watts said the election code required the sponsor of a measure that was proposed for referendum to submit the ballot summary, which could not exceed seventy-five words.  He said the Supervisor did not generally take it upon himself or herself to pass judgment on the adequacy of that language.  He said he thought the question before them seemed to be whether they wanted the Supervisor to have the ability on a strictly ministerial level to save somebody, including the public, a lot of time and expense if they were going off with language that would not at the end of the day be legally sufficient.  He said there was the expense to the public of holding a referendum, and then having it challenged if the referendum succeeds, and then there was the obvious waste of energy by the sponsor of the measure, if they were laboring in vain, so the question was whether from a technical standpoint there was a public benefit in having that prescreening by some official. 

Commissioner Moore Bailey said she had a question for Mr. Watts.  She said earlier on he mentioned as it related to the language regarding the Supervisor of Elections, implicit and explicit in terms of when she read that document that the sponsor brought to her, and she ask Chairman Costello at some point in time, maybe not then so that they could expedite time, but she just wanted to understand exactly how the language related to the authority the Supervisor of Elections already had.

Mr. Watts said the language was that the sponsor shall submit the text of a proposed ordinance to the Supervisor of Elections with the proposed ballot summary and the form on which signatures will be affixed and obtain a dated receipt therefore.  He said there were four things that happened there.  He said the text was submitted, the Supervisor’s duty with respect to that text was not explained.   The proposed ballot summary, and there was that provision in the statewide election code that limits the number of words and requires that the measure fairly express the main purpose of the ordinance.  The third thing was the form on which the signatures will be affixed, and that needed to be sufficient for the Supervisors eventual verification, and the fourth thing was the dated receipt because of the one year circulation period passed to be a trigger that begins that one year, and it was the dated receipt that was received from the Supervisor.  He said that was the present system.

The Chairman said one way they could deal with the “legal review” issue was that somebody could make a motion in effect that we instruct our consultants that we want them to develop some language, which would in effect, and he thought what they were talking about was some sort of a technical review by someone, say the Supervisor of Elections to make sure that it meets the standards set forth in the paragraph above, which was consistent with the state constitution or general law.   The Chairman asked if anybody wanted to make a motion to that affect?

Commissioner Strang made a motion that the consultants come up with language, which would provide a legal/technical review of any proposed ordinance initiative, and Commissioner Moore Bailey seconded the motion.  The Chairman asked if there was further discussion?

Commissioner Strang asked if they could add in that language some sort of requirement for a timely response?

Chairman Costello replied for a timely legal/technical review of any ordinance initiatives. 

The Chairman asked if there was discussion on that motion?

Commissioner Lindsey asked if that would enhance the existing charter, but not change the charter?

The Chairman replied it would change it, but it would change it in a non-substantive way. 

Commissioner Lindsey asked if it would amplify the existing charter?

The Chairman said the motion, which was made by Commissioner Strang, and seconded by Commissioner Moore Bailey was to instruct the Commission’s consultants to develop language for Article 6.1, which would require a legal/technical timely review of any ordinance petition language.

Commissioner Masters asked if the consultants were going to get the language, so that the Commission could possibly put that issue on the ballot to be voted on?

The Chairman said he thought if the Commission refused to enact the ordinance then it would go on the ballot, and he asked counsel if that was correct?

Mr. Spitzer said he was referring to the Charter Review Commission’s ballot. 

The Chairman replied yes in response to Commissioner Masters’ question.

Commissioner Masters said he wanted to be sure he was clear in the language that the consultants were being asked to come up with.  He asked if they were going to take that language and possibly place it on the ballot for the public to vote on it, and he asked if they wanted that added?

The Chairman said providing they can get two-thirds vote on that language change. 

Commissioner Price said as a point of clarification for herself, if the way the system worked then there was protection built in that the petitioner brings the proper language, and that language was what everyone sees who signs, so that had not changed, and that was to protect all of the citizens who had signed, so that they could clearly see what was written, and that was what would be presented at ballot time?

Mr. Watts said yes.

Commissioner Price asked, so what they were saying was that would remain, but before they begin gathering signatures there would be the Supervisor of Elections who would validate the wording, and that was the only change, because as of then, it was required that language be written as it was going to appear on the ballot, so when one signed it that was exactly what they saw when they voted?

Mr. Watts said as of then what one saw when it was filed with the Supervisor was what they were suppose to be voting on when the time came, and that was what was circulated.  He said as the charter presently read the Supervisor may have the opportunity if he or she wants to volunteer to say, this is defective you might want to change this in this way, but there was no duty to do that, and it was only if the Supervisor wanted to say if the sponsors hand the public the time and expense and could see a clear defect.  He said it was strictly a voluntary act on the part of the Supervisor as it was then worded. 

The Chairman said that Mr. Spitzer had some language in the Broward Charter that he would like for him to read.

Mr. Spitzer said for the sake of clarification, the information he was going to read was from the Broward Charter.  He said they have a requirement of 7% for ordinances by petition.  “Upon certification that the petition contains 7% of the total county electors it shall be the duty of the Supervisor of Elections to determine the validity of said petition within not more than thirty days, and to report such determination in writing to the County Commission.” He said he thought that was the main intent there, and “upon failure of the Supervisor to so act within thirty days, then it shall be the duty of the County Administrator to act.  It shall be the duty of all county officers and departments to assist and cooperate with the Supervisor of Elections and/or the County Administrator in determining the validity of said petition”. 

Commissioner Masters said he had two questions.  He asked in the states if he had seen a large problem with that or had he seen that issue come up quite a bit? 

Mr. Spitzer said not as it related to ordinances, because there were not many situations that he was aware of where ordinances had been proposed by petition. 

Commissioner Masters asked what were they fixing?

The Chairman said he would ask Commissioner Strang to respond to that question.

Commissioner Strang said it was commonly there in challenge, and he thought there should be one avenue available to the voters.  He said it had come up with respect to charter amendments, and the issues involved were charter issues, and they were not ordinance issues.

Commissioner Masters said he thought that was just going to be one more item on the ballot for the voters to vote for.  He said for example, if the Commission came up with ten, he said he would rather have nine if that wasn’t a deal killer, and just more to be put on the ballot, and he thought the voters were very smart and they could read all of that, but if it was not a big topic and it hadn’t really come up and people didn’t really use that arm, he would try to keep it as some of the folks in the audience had said, “keep it simple” for the voter, and that was all he was saying.  He asked what were they fixing that hadn’t been tested in other charters that hadn’t used it?

Commissioner Strang said he thought the validation the Chairman was referring to was after the fact. 

The Chairman said that was correct, after the 7% was collected, which he thought was antithetical to what he wanted to do. 

Commissioner Stang said in a lot of ways the rug could be pulled out from under the voter, and he would like to minimize those opportunities.

The Chairman asked if he wanted the review to occur before?

Commissioner Strang replied yes.

Commissioner McLaughlin said he agreed with Commissioner Masters when he said that wasn’t something that he thought would rise to a level where they would need to put it on the ballot, but more importantly he thought was the fact that they could all be good law students, and wish that language were more clear, but if they read the language it still was saying that they should submit it to the Supervisor of Elections, and also at the same time, in a sentence later it said it had to be valid.  He said it appeared to him that when the Supervisor of Elections read that, he or she would think, I also should look over this to make sure it is valid as well, so he thought in practice what was happening was the Supervisor of Elections was looking that over, and probably was referring it to counsel, but the reality was it doesn’t happen that often, and he thought if they wanted to be really good drafters they should have been on the earlier commission, and he didn’t think that was something that arose to that level.  He said he would agree that it should be clear, and he didn’t think it rose to the level of being placed on the ballot.

The Chairman said one thought that just occurred to him was instead of  “let the buyer beware” it was “let the petitioner beware”.  He said if the petitioners were going out and collecting 6%, whatever the percentage was in each of the districts, they should make sure that petition was going to pass legal muster, as the very first thing to do.  He said what some of the members of the Monday Night Group did was have an attorney draft proposals to make sure that they were sound and correct.  He asked on whom should the burden be?

Commissioner Gernert said what he started to say earlier, was maybe the burden should be on the petitioner in the beginning?

The Chairman said the issue was the instructions to the consultants with respect to the legal/technical timely review of the petitioners’ ordinance request.  He asked the Commission if they were ready to vote on that issue? 

The Chairman reminded the Commission that there were eleven members present, so eight would be two-thirds.  He said they had heard the motion, and it had been seconded, and they had discussion, and he asked Ms. Swearengin to call the roll and begin with whomever was next on the list.  The results were 8/3 with the nays prevailing.  The motion is lost because it did not garner at least a 2/3rds vote.  

The Chairman asked that they proceed to the next subject, which was percentages, and as Commissioner Lindsey put it, he would like to keep the percentage at 6% overall, but reduce the percentage required in each district to 4%, and there may be other variations of that as well, and he asked that they discuss that further. 

The Chairman asked Commissioner Lindsey if he stated that correctly?

Commissioner Lindsey said that was correct.

The Chairman asked if anyone wanted to speak to that or a variation thereof?

Commissioner Strang said he would like to see 6% of those who voted in the last general election.  He said because of the motor voter thing there had been turnouts in the single digits in some elections, and because of the motor voter, there were a lot of people who were registered to vote who never darkened the door of the polling place, and he thought it would be fair if they counted the number or maybe at a percentage of the number who voted in the last general election, and that was a number that the Supervisor routinely came up with. 

The Chairman said the language as presently written was “at least equal to 6% of electors qualified to vote in the last proceeding general election”.  The Chairman asked him if he wanted to change that to “who actually voted”?

Commissioner Strang replied yes.

The Chairman said those were very rough figures, but using the example of 150,000 registered voters, and he thought in a presidential election there was a 70% turnout, and even saying 80% that would be 120,000, so that would be a difference of 30,000 which multiplied by 6 % would be about 1,800 voters.  He said he thought in the last general election it could be 60%, which would be 90,000, with a difference of 60,000, which would be 3,600 total. 

Commissioner Masters asked if they were only discussing ordinances?

The Chairman replied yes.

Commissioner Masters said he didn’t know if that had been tested yet, and he thought it was unwise to fix something that they didn’t know was broken, and they don’t have data to back it up, and hardly anybody uses it, he said he didn’t know if it was something that warranted making it to the ballot, and changing that percentage.  He said as to Commissioner Strang’s remarks regarding the last election, he thought the number could be woefully different between a petition that merits a certain number of voters because it was a local election versus a presidential election, and he thought they needed to all meet the same criteria.  He said if there were 100,000 people turnout because of a local election, but there were 300,000 people show up for the next election, well everybody was going to say, wait until the election when you only have 100,000, and then let’s go get 6% of those, and he felt people would start picking when to pick their ballots, and he thought to be fair, if he understood what he was talking about, it should be a level playing field of each ordinance or charter amendment, and should be consistent, and it should be a certain percentage of those registered voters, and through the charter amendment it had been proven that it could be done.  He said it might be hard, but the first time it was done it worked.  He said the one time they did it in the county it worked, so let’s change it now?  He said he didn’t understand that. 

Commissioner Strang said he got the impression that Commissioner Masters was suggesting that they have general elections that only include local candidates.  He said every time they have a general election there are state and sometimes national, and there was no such thing in his opinion as a general election that just included local candidates. 

Commissioner Masters said he had a question for Mr. Spitzer for proper terminology.  He asked were there some elections that received larger voter turnout than others?

Mr. Spitzer answered yes, and he was informed by the Supervisor of Elections from Levy County, where he was doing a project that the presidential elections in the Supervisor’s profession was termed the “big election”, because of the higher turnout. 

Commissioner Masters said his only point was nobody was going to get their ballot initiative on the “big election” vote, they were going to wait for the “small election” vote, and then go get their ballot initiative ran.  He said he thought they all needed to go and get the same number of people roughly.  He said if the registered voters were up 5% or down 5% he thought that people would start playing that game, and he thought that it needed to be fair across the board.  He said again, the one time that it was done it worked. 

Commissioner Strang asked Commissioner Masters if he was going to make it as hard for him as possible?

Commissioner Masters, said no, but all that he was saying was what they had at that time was not broken. 

The Chairman said that the issue that they were talking about then was not Commissioner Lindsey’s issue, but the issue was whether in effect they reduce the number of signatures required for an ordinance initiative.  He said Commissioner Masters was saying no, he wouldn’t, he would leave it the way it was.

The Chairman asked Commissioner Masters if he was implying that he might change it so it was 6% in both?

Commissioner Masters said no he wasn’t. 

Commissioner Masters said no, he was only saying he didn’t think the system was broken.

The Chairman said Commissioner Strang was saying no. Instead of the registered voters, what he wanted to do is the last general election, which would change the number of voters required in order to get the petition through.  The Chairman asked if there were any variations between those two, and he said what they could do is a get a motion on one of them?

The Chairman asked Commissioner Strang if he wanted to offer a motion, and they could test it and see how it flies? 

Commissioner Strang said that he just moved simply that they measure the percentages on the number of voters who voted in the last general election, and Commissioner Moore Bailey seconded the motion. 

The Chairman said the motion by Commissioner Strang was to change the percentage measurement to reflect the number of voters in the last general election instead of the number of electors qualified to vote in the last proceeding general election.  The Chairman asked if there was discussion?  There was no discussion. 

The Chairman asked Ms. Swearengin to call the roll for a vote.  The results were 10/1 with the nays prevailing.  The motion lost because it did not garner at least a 2/3rds majority. 

The Chairman asked that the Commission proceed to the next sub-issue, which was Commissioner Lindsey’s issue of keeping the percentage 6%, the same for ordinance initiatives, but changing the district requirement from 6% to 4%. 

Commissioner Masters asked if he got a shot at his motion?

The Chairman asked him what his motion was?

Commissioner Masters said his motion was to leave the ordinance by petition at 6%, as it was currently.

The Chairman said the motion was not to change the language of Article 6 made by Commissioner Masters, and seconded by Commissioner Gernert.  The Chairman asked if there was further discussion? 

Commissioner Moore Bailey said they were discussing changes, and she asked if Commissioner Masters was saying no changes at all?

Commissioner Masters said that was correct.

Commissioner Moore Bailey asked if they were talking about a difference other than the 4%?

The Chairman replied by stating that Commissioner Masters wanted to keep it 6% for both districts and countywide.   The Chairman asked if there was further discussion? 

The Chairman said the motion was to keep the language in Article 6 as it was currently written.

Commissioner Masters said, again, the reason why he left it at 6% was because it hadn’t been tested, and he was referring to ordinance only, and it was rarely used.  He said again, it probably had some merit, and there needed to be an adjustment made, but for the things that they need to get on the ballot, and that wasn’t, in his opinion, something that has as high of a priority as the other items that would be getting to the ballot, because the ordinance, from what Mr. Spitzer told him, was very rarely used.

Commissioner Moore Bailey said she was concerned about the percentage of the petitions.

Commissioner Masters said he was referring to ordinance by petition only.

The Chairman asked if there was further discussion?

Commissioner McLaughlin asked if they actually voted on that issue, and he said that he was not in favor of changing that, and he voted affirmatively, he asked what if ten minutes from then he wanted to bring up the issue of 4% again, and he asked if he was allowed to bring that up?

The Chairman said as one voting in favor of a motion not to change the language he could bring up a motion to revisit that decision. 

Commissioner McLaughlin said what he was asking was would that preclude them from discussing other issues relating to changing that? For example when they were done with that vote were they moving on to another issue?

The Chairman said no it wouldn’t, but the point was if the motion carried with a two-thirds vote, a lot of people would have to change their mind in order to get it back, because it took a two-thirds vote to change it from what it was at that point.

Commissioner Lindsey asked if that motion failed would his motion of 4% and 6% be appropriate?

The Chairman said if Commissioner Lindsey chose to make it so. 

Commissioner Moore Bailey asked if the motion could be amended from 6% to 4%?  She said presently Commissioner Masters was saying 6% across the board, and she asked if the 6% could be amended to the 4% in the district?

The Chairman said the only comment he would make on that would be that if the motion was not to change the language, then one would move to amend the motion to change the language by changing some of the language. 

Commissioner Moore Bailey asked if that was altogether another vote if the two-thirds vote did not pass, as Commissioner Lindsey said, and then they could bring the issue up again?

The Chairman said the motion was to keep the language of Article 6 in tact as it was written.  The Chairman said an aye would be in favor of the motion and a nay would be opposed.  The Chairman asked Ms. Swearengin to call the roll for a vote.  The results were 8/3 with the nays prevailing.  The motion is lost because it did not garner at least a two-thirds majority.  He said they would return then to the issue of Commissioner Lindsey’s idea, and the Chairman asked if he wanted to make a motion?

Commissioner Lindsey said his motion was that the petition still requires 6% of the qualified electorate, and not less than 4% in each district. 

The Chairman clarified that would mean necessarily that some districts would be much higher than 6%, and  some districts could be 4% but not lower than 4%. 

Commissioner Lindsey said that was correct. 

The Chairman asked if there was a second to Commissioner Lindsey’s motion?

Commissioner McLaughlin seconded Commissioner Lindsey’s motion. 

The Chairman asked if there was further discussion on that motion? 

Commissioner Moore Bailey said she had a question that she needed clarification on, she said when it was said not less than 4%, but that it could exceed the 6% or could go up to 7% if it was the total percentage of the electorate, and she asked if that was what they were saying?

Commissioner Lindsey said that was correct.  He said it required 6% of the total electorate for the countywide voters.  He said the current procedure required an equal 6% in every district, or a minimum of 6% in each district.  He said what he was suggesting was that the minimum shall be 4% in any district that has to still be the gross 6% overall, so effectively one would have to have 4% and one would have to have 8% to have an average of 6% assuming all of the districts were equally allocated. 

The Chairman said that motion had been made and seconded. 

Commissioner Strang said there was some paranoia in Indian Lake Estates over Lakeland running the whole county, and despite that he was going to vote in favor of that simply because it lowered the overall percentage, and he said it made the requirement easier to meet.

Chairman Costello said he didn’t realize that paranoia was restricted to such a small geographic area.

Commissioner Lindsey said he didn’t know that Lakeland voted as a block.

The Chairman asked Ms. Swearengin to call the roll for a vote.  The results were 11/0 with the ayes prevailing.  The motion carried.  The Chairman said the Commission’s consultants would construct some language to reflect that vote. 

The Chairman asked that the Commission take a short ten-minute recess at 7:25 p.m., if there were no objections.  There were no objections. 

The Commission reconvened at 7:35 p.m.

The Chairman said that Frank Koch who was sitting by the screen had been a loyal and faithful attendant at every single one of their meetings, and he was recording the meetings on his tape recorder, and he asked him if he would ask them to speak into their microphone because he had to amplify from the speaker across from him, and unless they spoke into their microphones it would not do him much good.

The Chairman said the next item on the Issue’s Agenda was Charter Amendments by Petition, Charter Article 8.3, and he read that article to the Commission.  He said they had already voted to change the number of commissioners, at least tentatively, to seven, and they might want to consider whether that four needed to be changed to another figure.  He read Article 8.3.2 to the Commission.  The Chairman asked Mr. Spitzer if he would brief them on that issue.

Mr. Spitzer said assuming they wanted to keep the procedures the same as that for ordinances, at least the primary issue that remains then as relates to charter amendments by petition would be the percentage, of the signatures required, in the distribution thereof, and the number of commissioners.  He said most likely they would want to look at the latter subject if their final recommendation was to increase the number of commissioners to seven.  He said he thought the intent was to have an extraordinary vote for charter amendments proposed by the County Commission, and if they go to seven commissioners four was no longer an extraordinary vote, they would have to go to five. 

He said in terms of the number of signatures required, it was 7%, and 7% from each of the commission districts.  He said if they wanted to revisit that based upon their previous action they may wish to do that. 

The Chairman asked if there were any questions of Mr. Spitzer or Mr. Watts?

Commissioner Strang asked would provisional language be permitted in the question, for example, could you say with regard to amendments by the Board of County Commissioners that you could require either four commissioners in the event of a five commissioner board, or five commissioners in the event of a seven commissioner board?

Mr. Spitzer said he thought they could say a majority plus one of the entire board. 

The Chairman asked Commissioner Stang if that answered his question?