Words matter: Charter review process should follow charter requirements
By Kimble Medley
As part of its efforts to form a new city, Palm Coast’s founding fathers, as required by Florida law, authored its charter. It’s a simple document, designed to be read by middle-schoolers, that outlines how our municipal government operates.
It has been compared to the United States Constitution and that of the state of Florida. Although the U.S. Constitution was penned over 200 years ago, our nation’s founders provided for future changes through the amendment process. It has been amended 27 times in 230 years. Currently consisting of 37 members, the Florida Constitution Revision Commission is meeting as provided by Article XI, Section 2, of our own state’s constitution.
The word is ‘shall’
By way of a five-slide PowerPoint presentation, with the first slide as the title, City Council was offered three separate options for the Charter Review. Although specific steps are outlined in the Charter, this was bypassed.
The city attorney, a charter officer, contends there are three ways to amend the charter. City electors (voters) “may, by petition signed by 10% of the registered voters … submit … a proposed amendment” to the voters and “the governing body … shall place” it on the ballot. Similarly, the City Council “may, by ordinance” offer a proposed amendment to the charter to the voters by placing it on the ballot [F.S. 166.031(1)].
This method was used by City Council in 2011 when an ordinance to chance our election dates from odd-numbered to even-numbered years was placed on the 2011 Primary Election ballot. The proposed change was passed by the voters of Palm Coast.
The third option is that of Charter Review. The initial review has yet to take place; therefore, the obligatory steps outlined in our charter apply. In order to compare the current process with that of the one outlined in the Charter, consider the table below:
In a rather simplistic comparison, our Charter, approved by the Florida Legislature, affords certain guarantees to its citizens with the use of the word shall. There is a great deal of difference, from a legal standpoint, when shall is used over words such as “will be,” “is encouraging,” “if any are proposed,” “are also encouraged,” “will consider,” “will present,” “is scheduled,” and “may further discuss.”
Shall is a mandate.
Stick to the charter
Citizens shall be appointed one year before the next election and shall complete their review 60 days before that election so that City Council shall have time to hold two public hearings before placing proposed changes on the general election ballot. With the adopted process, changes may be discussed and put on the ballot if City Council decides such changes “should be proposed to the voters.” These are huge differences that matter. The Charter Review process has clearly changed; but, how?
According to Section 5(8)(b), “All actions of the City Council shall be by ordinance, resolution, or motion.” The City Attorney argues City Council may conduct a Charter Review and amend the Charter through the Charter Amendment process, Section 10(1), and by the steps outlined in Florida Statutes 166.031(1). Note, both the Charter Section 10(1) and Chapter 166.031 are titled “Charter Amendment” and “Charter amendments,” respectively; and, each reference proposed changes through the ordinance process. Section 10(2) does not reference F.S. 166.031; and, likewise, the same chapter of the Florida Statutes does not reference Charter Review. While the slide presentation by the City Attorney cites F.S. 166.031(1) for Options 1 and 2; this citation is not included with Option 3. As stated earlier, the Charter Amendment procedure (Option 2 presented to City Council) was used to change Section 8(4), and a vote occurred. When was the ordinance for changing Section 10(2)(a)(b) presented to the voters and placed on the ballot?
Problem with the current process
The current process relies on citizen participation and fails to guarantee that their ideas will be addressed in a valid manner. A facilitator, hired by City Council at the behest of the city attorney, will present a summary to City Council and they, “may further discuss the charter and/or take formal action.”
If the abysmal attendance at the first meeting is any indication, nothing will come of this process.
We are told people simply do not care. Just look at public attendance at City Council meetings. There is truth with that observation; however, consider this: Why would citizens take time from family and friends to research and contribute to a process governed by City Council and protected by the city attorney?
The city attorney is a charter officer with the No. 1 duty of serving “as chief legal adviser to the City Council, the city manager, and all city departments” [City Charter, Section 6(3)(c)(1)]. All of these entities derive their power from the Charter. Change the Charter, change power. The city attorney does not and cannot represent the interest of the electors of Palm Coast.
Citizens cannot turn to the Florida Attorney General for an opinion. Such opinions are offered to specific officers. Further, questions with regards to city charters will not be addressed by the office.
Charter Review Committees, on the other hand, can and have sought opinions from the Attorney General, as they are recognized as a public collegial body. As it has been explained, in order for the city attorney to submit a request to the Attorney General, City Council would have to vote on the matter. We have three automatic “No” votes on council; and, given the AG will not consider charter issues, citizens are left unprotected.
Kimble Medley is a resident of Palm Coast and was a candidate for supervisor of elections in 2016.