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Palm Bay: City Of Palm Bay Solves Road Funding Issues – Passes Charter Amendment Which Uses Money From BCSO, Clerk Of Courts, Tax Appraiser, and Supervisor Of Elections To Pave Roads.

Via FNNetwork.com:

In a move that stunned political onlookers and citizens, on Thursday the City Council of Palm Bay passed a Charter Amendment requiring Brevard County Constitutional Officers pay for the construction and maintenance of roads and storm water projects in Palm Bay out of their budgets. The move frees up millions of dollars for other projects in the city.

“We should have done this before,” Mayor William Capote said. “This was a great legal strategy thought up by our City Attorney. All the props to her. I told you that my staff is like my family and my family did something great. ‘Papa’ Capote is proud of them!”

In voting for the amendment, Councilman Johnson said that he was looking forward to the construction of a youth center centered around Willet Creek.

Councilmen Santiago and Anderson supported the amendment as long as the ability to keep special assessments was in the bill. “You can’t have too much money to spend on projects,” Anderson said. “We are hoping that we can use funds for the construction of “The Governor William J. Le Petomane Thruway” in memory of a former City Mayor who later became governor in the late 1800’s.

The amendment was not without controversy as Councilman Bailey noted that the City Charter did not allow amendments to be passed by a single council vote.

“The hell with the Charter,” Santiago told Bailey. “If I can appoint disgraced and former City Councilman Calvin Holton to the Marketing Committee of the Brevard County Tourism Development Council, we can do anything.”

Santiago and Anderson also floated the idea of bringing back former City Manager Gregg Lynk to oversee the projects.

When contacted, the Brevard County Constitutional Officers seemed stunned.

“I won’t be able to take care of the pets in shelters without funds,” Sheriff Ivey told the FNNetwork. “How can we operate without funds?”

Clerk of the Courts Scott Ellis was a little more blunt. “I will go down to Palm Bay and kick some serious butt if they think they can tell us we have to pay for their streets and work for them.”

When told of the comments by Ellis and Ivey, Mayor Capote giggled saying “Randy Fine can’t do it no better than me.”

EDITOR’S NOTE: Apparently some people don’t recognize sarcasm when they see it. Please click on the in-article links to see the “documentation” of this “article.” We wrote the article to show that the above cannot be true and yet the City demanding that the Supervisor of Elections can be forced to do the City’s bidding by proclamation of the City Charter is as ridiculous as the City making a Charter amendment which would allow the City to take money from the County Constitutional officers’ budgets. The above is satire. What follows is the analysis of why the City’s arguments fail in the lawsuit and have no legal basis. In addition we ask the main question that the City has not answered: “Why did City Officials continue to lie to the petition group and impugn the integrity of the Supervisor of Elections?”

If the above sounds strange to you, that is because it is. It is not only strange, but no one would expect that the City of Palm Bay – or any City – could demand that Constitutional offices for the state and the county be required to do something at the behest of the city.

Yet that strange point of view is what the City of Palm Bay is putting forth in their lawsuit against Lori Scott as the Brevard County Supervisor of Elections. The City is saying, without any legal foundation at all, that the Supervisor of Elections must work at the order of the City and follow the City’s rules. If that holds true, then the County Supervisor of Elections must be under the supervision of municipalities. (Spoiler alert: they are not.)

The job and duties of the a Supervisor of Elections is laid out with legal citations in a handy document called “The Florida Election Code.”

By law, the County Supervisor of Elections is required to maintain voter rolls, voter registration, verify candidates for County elections, help with the verification and qualification for state and county offices as well as state and county referendums.

However, when it comes to local elections and referendums, the law only allows the Supervisor to get involved absent of municipal laws.

100.3605 Conduct of municipal elections.—
(1) The Florida Election Code, chapters 97-106, shall govern the conduct of a municipality’s election in the absence of an applicable special act, charter, or ordinance provision. No charter or ordinance provision shall be adopted which conflicts with or exempts a municipality from any provision in the Florida Election Code that expressly applies to municipalities. (emphasis ours)

Article V of the Palm Bay City Charter covers municipal elections within the City.

Because of that section, the County Supervisor of Elections is out of the loop. It is the City that qualifies candidates – not the Supervisor of Elections. It is the City that sets the criteria for candidates to meet – not the Supervisor of Elections. The City acts as its own “mini-Supervisor of Elections” when it comes to municipal elections. The County Supervisor cannot interfere and the opposite is true as well – the City cannot demand actions by the Supervisor of Elections.

(If you are wondering how the Supervisor of Elections gets involved with municipal elections as far as counting votes goes, it is because the municipalities and the Office of the Supervisor of Elections have an interlocal agreement for that. The SOE and cities sign an agreement. The SOE is not directed by the City to count votes. The agreement saves time and money for both parties and is therefore beneficial to both as well as citizens. Once again, a city cannot demand the Supervisor of Elections come in and count votes if the city has election rules on their books.)

The Supervisor of Elections is “out of the loop” for petitions as well. The City has a policy in Article III of the City Charter for the gathering of petition signatures:

3.092 Petitions.
(1) Number of signatures. All petitions must be signed by at least ten percent (10%) of the electors of the city. They need not be in affidavit form.
(2) Form and content. Each page of a petition shall be numbered, shall be uniform in size and style, shall be executed in ink, and shall be followed by the address of the person signing. Each petition circulated shall contain or have attached to it, at least once, the full text of the proposed charter amendment, the proposed ordinance, or the ordinance sought to be repealed. Each page provided for signatures shall contain the caption of either the proposed charter amendment, the proposed ordinance, or the ordinance sought to be repealed. (emphasis ours)

The City requires that the petitions have the name, signature and the address of the signer.

Because we basically cover two other cities – Cocoa Beach and Satellite Beach – we decided to look at their petition requirements as well.

Cocoa Beach:

Sec. 7.03. – Referendum petitions.

(a) Number of signatures. Referendum petitions must be signed by qualified voters of the city equal in number to at least ten per cent (10%) of the registered voters at the most recent city election.

(b) Form and content. All papers of a petition shall be uniform in size and style and shall be assembled as one instrument for filing. Each signature shall be executed in ink or indelible pencil and shall be followed by the name and address of the person signing. Petitions shall contain or shall have attached to them throughout their circulation the full text of the proposed ordinance, amendment, or repeal request. (emphasis ours)

Satellite Beach:

Sec. 2-183. – Form of petition; signatures; circulatory committee; affidavit by circulator.

(a) All petition papers circulated for the purpose of an initiative or referendum shall be uniform in size and style. Initiative petition papers shall contain the full text of the proposed ordinance. The signatures to initiative or referendum petitions need not all be appended to one paper, but on each petition there shall be a statement of the circulation thereof as provided by this section. Each signer of any such petition paper shall sign his name in ink or indelible pencil and shall indicate after his name his place of residence by street and number, or such other description sufficient to identify the place, and the date of his signature. There shall appear on each petition the names and addresses of the same five electors who, as a committee of the petitioners, shall be regarded as responsible for the circulation and filing of the petition. (emphasis ours)

It appears that all three cities have the same basic requirements for petitions – signature, name, address and date.

So where did Palm Bay go off the rails?

The difference is in the signature verification process for each city.

Palm Bay:

3.093 Certificate of clerk; amendment.
Within ten (10) days after the petition has been filed, the city clerk shall submit it to the county supervisor of elections to certify the number of registered voters who signed it. The city clerk shall, within three (3) working days after receipt, send a copy of the supervisor’s certificate to the committee, by certified mail, indicating its sufficiency or insufficiency and the grounds therefore [therefor]. (emphasis ours)

Cocoa Beach:

Sec. 7.04. – Procedures after filing.

(a) Certificate of clerk; amendment. Within twenty (20) days after the petition is filed, the city clerk shall complete a certificate as to its sufficiency, specifying, if it is insufficient, the particulars in which it is defective, and shall within two working days send a copy of the certificate to the petitioners’ committee by registered mail. (emphasis ours)

Satellite Beach:

Sec. 2-184. – Verification of validity of petitions; delivery of certified petition to council; notice of insufficiency.

All petitions comprising an initiative or referendum petition shall be assembled and filed with the city clerk as one instrument within 60 days of the date of the first signature thereto. Within 20 days after a petition is filed, the city clerk shall determine whether each paper of the petition has a proper statement of the circulator, and whether the petition is signed by a sufficient number of qualified electors. (emphasis ours)

In both Satellite Beach and Cocoa Beach, because the respective cities have laws on the books on elections, candidates, referendums, petitions, etc., the city maintains the legal right and duty to verify the signatures.

Palm Bay, on the other hand, while having laws on the books on elections, candidates, referendums, petitions, etc., thinks it can jump out of being the master of its own laws and force another, higher government agency to do it’s bidding for it and at the same time dictate the rules the agency must follow. In essence, taking over the agency itself.

3.093 Certificate of clerk; amendment.
Within ten (10) days after the petition has been filed, the city clerk shall submit it to the county supervisor of elections to certify the number of registered voters who signed it. (emphasis ours)

The difference between Palm Bay and the cities of Satellite Beach and Cocoa Beach is clear. In the case of the “beaches,” both towns stayed within the law and maintained control of the certification process. In the case of Cocoa Beach, the City Clerk and a Councilman reached out to the Brevard County Supervisor of Elections and asked for help in verifying the signatures and asked what the Supervisor of Elections would need on the petitions. The answer included spots on the petition for the date of birth and voter registration number of the signer of which they could choose one to fill in.

The reason for the additional information is simple: there are people who have the same name, similar names, go by their middle name or a nick name. All are legal under state law for signing a petition as the verification process is to insure that there is a voter standing behind the signature. A date of birth or the voter ID number allows the verification process to be faster and more accurate.

Palm Bay, on the other hand, never checked with the Supervisor of Elections prior to issuing the mandated petition forms to the petition group. That is troubling in many ways. First, as we said, the City cannot demand or control what the Supervisor of Elections does. Secondly, the Supervisor can agree to help and in doing so say “this is what I need,” but the City has no legal basis to force the Supervisor of Elections to work within the City’s charter.

It is interesting to us that while the City’s lawsuit says there is no legal basis for the Supervisor of Elections requiring certain information on the forms, the City never supplies the legal theory as to how they can tell the Supervisor of Elections what to do. The City of Palm Bay has no legal basis to tell the Supervisor of elections what to do than it does to tell Melbourne, West Melbourne or any other city what to do.

In addition, the City Charter says they will abide by requirements set forth by other agencies but in their filing, are saying that the other agency (the Supervisor of Elections) has no legal right to make those requirements.

Section 3.09 Petitions to Amend the City Charter or to Adopt or Repeal Ordinances.
(4) The procedures to have an issue placed on the ballot shall be as set forth in this section, and shall be subject to other governmental agencies’ requirements that may affect this section.

The lawsuit filed by the City doesn’t even address that part of the issue. It is as if the City feels they don’t have to abide by their own rules and laws. They can simply ignore them when convenient.

Just as a side note, if the City did not have election laws on its books, the following would take place:

100.3605 Conduct of municipal elections.—
(1) The Florida Election Code, chapters 97-106, shall govern the conduct of a municipality’s election in the absence of an applicable special act, charter, or ordinance provision. No charter or ordinance provision shall be adopted which conflicts with or exempts a municipality from any provision in the Florida Election Code that expressly applies to municipalities.

And for petitions, the following rule would apply:

(e) Signature process.
—Only electors of the municipality or district are eligible to sign the petition. Each elector signing a petition shall sign and date his or her name in ink or indelible pencil. Each petition shall contain appropriate lines for each elector’s original signature, printed name, street address, city, county, voter registration number or date of birth, and date signed. The form shall also contain lines for an oath, to be executed by a witness who is to verify the fact that the witness saw each person sign the counterpart of the petition, that each signature appearing thereon is the genuine signature of the person it purports to be, and that the petition was signed in the presence of the witness on the date indicated. (emphasis ours)

The requirements are the same for state petitions as well.

City Attorney Smith made the statement that the City is not trying to force the SOE to do anything but her job and verify the signatures. Unfortunately for the City, Smith is playing with a door that swings both ways. She says that the SOE cannot issue rules on the form of the petitions because the statutes only allow the rules on county and state referendums. Therefore, according to the City, the SOE must verify the signatures. The problem is that the City only points to sections of the statutes where the SOE verifies signatures for state and county candidates and petitions. There is no statute that requires the SOE verify signatures in municipal issues.

In short, the very statutes the City is saying prevent the SOE from making a rule on verifying signatures and rules on forms are the same statutes that require the SOE to verify signatures only in County and State issues.

The City is hoisted on its own petard.

The Supervisor of Elections is being consistent. It is the City of Palm Bay that is hopping around, using tax payer money to both pursue and force the defense of a meritless lawsuit.

It would have been so easy to go another route.

This petition group was the first group since dinosaurs roamed the area to seek to have something put on the ballot. One would think the best course of action would have been to contact the Supervisor of Elections to make sure the City was within the law and within the requirements if the City wanted the help of that office.

The City did not and instead relied on its own failed reading of laws and its own charter.

What is even more troubling is that while petition group had filed all of the appropriate paperwork to start collecting signatures in 2017, the Supervisor of Elections didn’t even hear of a petition drive in Palm Bay until July of 2018 – well past the point of no return to change the forms. In addition the Supervisor of Elections, as the office always has done, held a meeting in early 2018 on the election, what to expect from the SOE’s office, resources, etc.

Palm Bay never raised any issue with the SOE at that meeting.

There are a couple of other issues as well with the filing from the City.

First, as we noted a few days ago, the dates in the City’s lawsuit are off.

The City claims that the petitions were delivered to the City “on or about November 6, 2018.”

The actual date was November 1, 2018. We know this because the petitions were presented at the November 1, 2018 City Council meeting. (You can watch the video here. The presentation starts about five minutes into the Public Comments part of the meeting.)

Secondly, the City took the petitions over to the Office of the Supervisor of Elections on November 6, 2018 which may be within the technical meaning of “on or about November 7, 2018” in the filing, but it is sloppy. We have no idea why the City would 1) not remember the actual date the petition was presented and 2) why the City would take the petitions to the Supervisor of Elections on the day of a national election. We cannot imagine the stress that would accompany a day where the Supervisor’s staff grows from less than thirty people to over 1500. We cannot imagine the number of people and precincts calling in for guidance, a machine needing to be repaired, voter requests, etc.

We can’t imagine the lack of professionalism and common courtesy that the City showed in plopping the petitions down on the counter in the Supervisor of Elections office that particular day.

Yet the dates present another issue as well.

The City’s filing says that the Supervisor of Elections never accepted the petitions on November 6, 2018 or at any time following that day. The filing also says that the City was told of the reason for the rejection of the petitions. (This is the City’s position and statement of the facts as they see them.)

That begs the questions: Why did the City continue to lie to the petition committee saying that 1) the Supervisor of Elections had the petitions and 2) the City couldn’t get an answer from the SOE’s office on the status of the signature verification?

Why did the City continue to foist that lie to the petition committee for three solid months until the truth was about to be exposed when on of the leaders of the committee was going to meet Lori Scott at an unrelated event and ask her about the petitions?

We have no idea how this is going to end in court, but the City has to answer to citizens for lying to them and deceiving them.

Then they can pass amendments telling state and county agencies and officers that they must bow to the City’s will.

(Of course, we will let you know how long and hard the agencies and Constitutional officers laugh at the City.)

The longer and deeper this goes, the more we can see why the Mayor had to ask for a delay and a closed door meeting with the staff to discuss this issue. Clearly the Mayor didn’t want the facts of the case out in the open. He didn’t want the truth to be known. He wanted to control the narrative and as time passes, that narrative is blowing apart in the City’s face.

We do not think this episode will end well for the City of Palm Bay and for those involved. We are talking jobs and political careers here. We also believe that the Supervisor of Elections should push back and push back hard for the City lying about their job performance and actions. The Supervisor of Elections should seek costs for defending this mess, and perhaps counter sue the City.

We know that would mean more tax payer money going into the pockets of lawyers, but at least for the people of Palm Bay, their anger – their righteous anger over the lies and obstruction the City has created – can be focused on those responsible.



7 Responses to “Palm Bay: City Of Palm Bay Solves Road Funding Issues – Passes Charter Amendment Which Uses Money From BCSO, Clerk Of Courts, Tax Appraiser, and Supervisor Of Elections To Pave Roads.”

  1. CARMINE VITALE says:

    Once again your article is spot on.The arrogance displayed last night only proves that some on the dais (day-us) not all, believe they are above the law and the citizens. It appears to me Mr. Gaume was being scolded for speaking the truth regarding the time-line of events with the petition. It is upsetting that the City continues to violate its own laws as well as its own policies and procedures and we the people suffer for it. I hope this lawsuit is dismissed rather quickly. I also hope
    in learning now that the SOE enters into local agreements regarding elections, that her position on this changes drastically when it comes to PB. There will be ramifications regarding this lawsuit and all that has transpired,I have no doubt. How come if the “Beaches” understand the law and run their elections accordingly, why doesn’t our city do the same? Regardless of the outcome here, it is my belief the entire petition process has been tainted. Dating back to the illegal signing of the petition by a non-resident (we all know who it was) to the most current events taking place.There is way much more going on here and I hope in time it all comes out.

  2. Paul Valeriani says:

    Who anointed Mayor Capote King?
    These tyrants have seriously crossed the line. The Governor needs to get involved and stop this abuse of power, and political corruption that exists at 120 Malabar Rd. SE.
    This reminds me of RICO violations, committed by organized crime families, and Papa Capote is the Capo di tutti capi!

  3. Concerned Citizen says:

    The good news is, the people they are pissing off now, are far closer to the Govenor than any of them, and their complaints will be heard far louder than the citizens, whom have been complaining to Govenor’s office for a couple years now.

  4. […] a post called “Palm Bay: City Of Palm Bay Solves Road Funding Issues – Passes Charter Amendment Which Uses Money …,” to illustrate the fallacy of the City of Palm Bay’s position the the suit against the […]

  5. Erik K. Sandberg says:

    It is somewhat surprising to me that Mr. Hoaxcakes APPEARS to INTENTIONALLY try to pull a fast one here in this write-up.

    You see? The fact is that the Florida Statute EXCERPT presented here, “(e) Signature Process”, was intentionally presented out of context. That excerpt ONLY applies to MUNICIPAL RECALL ELECTIONS.

    The heading containing the referenced section of Florida Statutes CLEARLY states, ”
    SECTION 361 Municipal recall.
    100.361 Municipal recall.”

    Furthermore, the entire text of section 361 surrounding the referenced statute contains language that obviously could only apply to a recall election and in no way could be construed to apply to a municipal petition process.

    This write-up is fake news at best. You make a good argument why the SOE should not bow down to City demands. But, guess what? Neither of those offices are above the other, as you’d like the reader to believe. They are BOTH supposed to represent OUR COLLECTIVE BEST INTERESTS as constituents of the locale they govern.

    Even further, City Attorney Smith has a valid argument. The SOE is demanding the City adhere to an inapplicable State Statute for petition signatures that specifically applies to STATE PETITIONS.

    The petition in question is a City petition. Therefore, those rules that the SOE is demanding the City follow DO NOT APPLY to the petition in question. The SOE has no more authority to enforce its doctrine upon the City than the City would have to enforce its doctrine upon the SOE. And, again, neither should be presented as a loftier office than the other. They are BOTH public servants.

    Don’t get me wrong. I deeply appreciate Hoecakes and all that you stand for. But, I’m appalled that you’ve sunk to these levels to justify your position. You’re more than entitled to YOUR OPINIONS. But, don’t twist facts around to try to show us your OPINIONS are correct – unless, of course, the facts DO support your opinions.

    Even further, I’ll stick my neck out right here in public and state that it’s MY opinion that these arguments are nothing more than diversion and stall tactics in the part of our City and our SOE. Justice WILL prevail here. There will be consequences for the tactics being used here instead of working toward the constituents’ wishes for the petition to prevail.

    • AAfterwit says:

      Erik K. Sandberg,

      Thank you for your comment.

      We believe you are missing the point.

      We know the standard we quoted was used for municipal recalls but only the recalls that the Supervisor of Elections runs. That’s the point. The municipality may have their own process for recalls just as they may have their own standards for petitions. Absent of municipal laws, the SOE will run recall petitions using the standard we cited. It is a standard that is consistent with all of the petitions the SOE handles in their area of responsibility.

      As we stated, once the municipality has their own set of laws, they are responsible – not the SOE.

      (By the way, if you want to make an accusation that we are stating something out of context, take a look at the City’s filing where citations are out of context.)

      We agree that neither office is above the other. Once again, that is the point. The City is saying they are above the SOE and can direct the SOE to do what they want. The SOE is saying “this is our area of responsibility.” The City is saying “we will tell you what your area of responsibility is.” And when you say “[t]hey are BOTH supposed to represent OUR COLLECTIVE BEST INTERESTS as constituents of the locale they govern,” we agree. By law, the City represents the interests of the City. The SOE does not. Not in this instance. By law it is out of the SOE’s jurisdiction. The point is that both have not only responsibilities that are designated by law, they have boundaries that are established by law as well.

      The City Attorney does not have a valid argument. There is no requirement in the law for the SOE to verify signatures for municipal petitions. Once again, that is because the law specifically states that once the municipality makes laws on elections, they and they alone are responsible for them. If the City wants to reach out and ask for the cooperation of the SOE, they may certainly do that. In that case, the SOE, absent of any direction from statutes may impose the rules they wish to accomplish the goal. (Such rule making is well established in state and federal law. If agencies are tasked to implement a law, they may create rules for that implementation.)

      The SOE did that. They asked the City to adhere to the standards they use for every petition process if the City wanted the SOE’s help. To have a different set of standards from one petition to another would open the SOE to lawsuits that petitions are being treated differently by their office, which would be a violation of the 14th Amendment. If you want to say that the City has the authority to determine the standards, we agree. What they don’t have the right to do is to demand that the SOE adhere to those standards. There is nothing in the City’s filing that makes that claim.

      If the City Attorney had a valid point, she would have quoted a law, statute, or rule that says the SOE must verify signatures according to a standard set by a municipality. She did not because no such law exists. In fact, as we stated, the exact opposite exists. The municipality is responsible for the petitions as it is their law – not the state statute that governs the SOE.

      The other night the City Attorney made a speech as to how laws limit governments and agencies. We agree. The law limits what the office of the SOE can do once the municipality has established their own laws for elections, petitions, etc. Is it your contention that the City of Palm Bay has no such laws on the books? The very limits that the City Attorney sought to rely on are limits that apply to the City. Her goal and belief is that the City limits of government can apply and force another agency to act outside of that agencies scope of responsibility. She offered that statement without any authority at all.

      As we said in the satiracal part of the article, if the City can pass an amendment that forces a Constitutional officer to do something, they can demand that the Sheriff use his budget to pay for roads. That’s the ridiculous argument that the City is putting forth.

      While you claim that we are offering our opinions and we would disagree, we would make this offer to you. It’s very simple.

      The law that we cited clearly states that once the municipality has election laws on their books, the Supervisor of Elections is out of it. We know that to be a fact. The City doesn’t even dispute that.

      So here’s the offer: Find a statute or rule that says that the SOE can be forced to verify the petition signatures in a municipal issue. If someone can find that, we’ll agree with the City.

      We both know that no such law exists because the City would have cited it.

      The fact of the matter is that the City has no legal grounds upon which to stand to force or compel another agency to do what they want. The law established areas of responsibilities and boundaries. The City doesn’t care about that at all.

      Have a good day.

      A. Afterwit.

  6. scott ellis says:

    I do hope Senator Smith was able to save his boy’s camp on Willett Creek. A most appropriate film for Palm Bay.

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