Why did the City Council Turn down the Preserve Our Paradise Petition?

This is the rest of the story regarding the article submitted by Chairwoman Terri DiSciullo to the Eagle dated 8/24/06 titled: Guest commentary: Why the City Council turned down the Preserve Our Paradise petition. In an effort to verify the Council’s “informed decision” to reject a petition signed by more than 1,400 registered voters of Marco Island, I examined the City Charter and Florida Statutes referred to by the author.

Any one interested in verifying what I say here should read the City Charter as it relates to paragraphs 6.01(1) (the paragraph under which the petition was submitted) and 6.01(2) (the paragraph under which the City Attorney advised the Council that the petitioners violated certain provisions. I am not an attorney. However, I can read and my understanding of the two paragraphs lead me to a different perspective on their intent than that held by Ms. DiSciullo and the City Council.

Paragraph 6.01(1) states “Ten percent (10%) of the qualified electors of the city shall have the power to petition the council …” This is the paragraph under which the petitioners initiated their petition. Ten percent of qualified electors did in fact submit a petition to the City Council in compliance with paragraph 6.01(1) of the City Charter, and therefore it appears the Petitioners were in substantial compliance to this paragraph.

Ms. DiSciullo claimed the decision was based on the City attorney’s advice that the petition had failed to meet the requirements of the charter i.e. Section 6.01(2). A reading of this paragraph reveals that its purpose is to offer direction on how to petition. It offers the following guidance and fails to impose any qualifying activity to make a petition: “A minimum of five (5) electors may commence initiative or referendum proceedings by filing with the city manager or other designated official, and affidavit stating they will constitute the petitioners committee…” It does not state “will” or “shall” or even “must”. By using the word “may” the obvious intent is to permit a contingency and therefore implicitly defers to the mandatory requirements of Paragraph 6.01(1) above, which are declarative in purpose. A reading of 6.01(2) clearly shows that its purpose is instructive and not mandatory.

It appears the City Attorney may have inappropriately advised the City Council on the Petitioners omissions as pertains to Section 6.01(2) and again when he “emphasized” that the petition had failed to meet the requirements of the charter. It also appears the City Council failed to perform due diligence by not seeking out a second opinion. It is clear that the Council wanted to reject the petition as Ms. DiSciullo admits in the article and it seems they were thrown a lifeline by the City Attorney. Unfortunately, close examination reveals the line is flawed. Finally, Ms. DiSciullo states that the City Council determined that the charter provisions be followed exactly as written and adopted by the Marco Island electorate. I suggest that the City Council perform their duty, revisit their decision and comply with this statement. The Council should comply with paragraph 605(1) of the Charter and address the sufficiency of the petition in compliance with F.S. 166.031 or they will disenfranchise the voters and cause harm to our election process.

Byron Erickson