Citizen's Parking Initiative - No Discretion, No Choice, No Option

Okay, let’s talk a little bit about the Citizen’s Initiative and the bizarre batch of misinformation that circulated just as the initiative committee was prepared to file its 251 signatures with the City last week.

First, get a copy the City Charter by clicking HERE. Go ahead and print it out, it’s only 13 pages and makes for great bedtime reading. It looks to be a hot topic in the coming months so you never know when you’ll need to refer to your copy. Heck, laminate it and whip it out at appropriate conversational moments in the dairy aisle at Publix or over a nice Willemette Valley Pinot Noir with the neighbors. Hit the "Please Read More" link below and join us for the rest...

Now, go to Sec. 3.11 starting on page 5 which sets out the mechanics of how citizens may propose legislation (ordinances) for adoption by the City Commission or, if necessary, by the voters. The initial paragraphs explain the details of initiative and referendum committees, petitions and the process of determining the sufficiency of such petitions. We’ll be concentrating on Sec. 3.11(f) which specifies exactly what happens once City Clerk Alice Baird determines the petition to be legally sufficient which we are confident will be the case with this particular petition related to Pine Avenue parking.

A quick note on the word “shall” which you will see utilized often in the City Charter, particularly in the sections we will be examining. Shall means “must.” It does not mean “if you want to” or “when you’re able to” or even “if you’re not too busy to.” Shall means there is no discretion, no option, no choice. When a statute or an ordinance or even a city charter says one shall perform some task, that task is mandated by law, period.

Take a look at Sec. 3.11(f) on page 6. The “repeal” language is relevant only if the petition seeks to repeal an existing ordinance, not the case here. So, essentially, once Ms. Baird blesses the petition as sufficient, the City Commission has the option of amending and then adopting it within 30 days or adopting it unchanged within 60 days. If they do neither, the proposed ordinance shall be submitted to the voters, no discretion, no option, no choice.

Now, read the next section “Submission to Voters” carefully, though it seems reasonably clear without a whole lot of analytical effort. Once the City Commission submits the petition to the voters, the vote shall be held no sooner than 30 and no later than 60 days from the date Baird tags it as sufficient. Notice the “shall.” No discretion, no choice, no option. And if they can’t piggyback it on a regularly scheduled election, the city shall put the petition to a vote in a special election. Again, pretty clear stuff: no discretion, no choice, no option. Once it goes to a vote, if a majority of the voters then approve of the petition, it shall immediately become law, period.

Okay, you say, it seems straight forward. None of those weasel words lawyers love so much, no conceptual gymnastics allowing for multiple interpretations. Simple procedural mechanics: Ms. Baird blesses it, the City Commission gives the thumbs up or down and, if down, it goes to the voters. All within prescribed and unalterable time frames.

Why then did one city commissioner give an initiative committee member what amounted to condolences for the initiative petition being too late to be put on the November ballot? The Charter says nothing about when a petition is required to be filed, it only prescribes the time periods mandated after the petition is filed.

And why did City Clerk Alice Baird inform another initiative committee member the same day, August 4th, that the committee had missed the deadline for the November election? What deadline? The clock doesn’t start running on an election until after Ms. Baird determines the petition to be sufficient, and a vote may not even be necessary if the City Commission adopts the proposed ordinance.

Granted, this is new to everyone so there is a learning curve involved, but where did this stuff come from?

Perhaps the Commissioner, a diligent and knowledgeable veteran of procedural issues, and Ms. Baird, an incredibly well-qualified, competent and conscientious clerk, received their information from the Supervisor of Elections Bob Sweat. Mr. Sweat, yet another highly regarded public servant with an excellent track record of hard work and a proven ability to navigate the swampy backwoods of election bureaucracies, apparently informed at least one reporter that “the deadline for questions to be placed on the Nov. 2 election has passed.” Mr. Sweat also told an initiative committee member directly that his office was “too busy” to take on another election before November. We can all sympathize with an over worked staff (just ask Ms. Baird what her schedule has been like since March) but clearly Mr. Sweat had not yet read the City Charter or spoken to his lawyer before passing along that information. Remember, an election shall be held if necessary, not when and if Mr. Sweat’s office has the time or manpower to get it done.

Again, that learning curve thing. This has never happened before so some of the confusion and misinformation can be forgiven. But now the City Commission, the City Clerk and the Supervisor of Elections all need to take a deep breath, reread the Charter and talk to their lawyers before passing on more information. The clock is already ticking on Ms. Baird’s determination of sufficiency and once that happens the time frames are tight and unbending. Florida election law does require the City to notify Mr. Sweat of its need to call a special election (if such a need arises) and Mr. Sweat’s consent must be obtained as to an actual election date, but the City Charter requires that the date shall be in a specified time period, not when or even if Mr. Sweat chooses.

So, the petition awaits Ms. Baird’s stamp of approval after which the City Commission will address it. If a vote, either general or special, becomes necessary it will be administered by Mr. Sweat’s office in due course and an outcome will be had.

And that outcome will reflect the rule of law. Or better put, it shall reflect the rule of law.

Stay informed.

Bill Yanger