CELEBRATE MARCO RESEARCH PAPER

THE RECALL FACTS

Celebrate Marco has completed a review of the proposed recall of three elected city council members. The recall process will cost taxpayers tens of thousands of dollars and cause significant disruption of city operations. The recall initiative requires a thorough review of the facts. Based on its review, CM strongly urges that the recall be rejected for the reasons highlighted below. CM has focused its review around two key parts; the misleading and inaccurate statements made in the petition and the accompanying letter (the petition package) and the questionable motivations of the group leading the effort. The results of the CM review are described below.

Misleading Aspects of the Petition Package (Petition and Letter)

The petition letter states that Florida law puts the “power of recall in the hands of the people”. That is misleading because it implies that recall actions have no limits. Florida Statute 100.361 governs recalls. The statute is clear that there are very specific and narrow grounds to warrant a recall of an elected official. There are seven grounds for recall; malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform duties and conviction of a felony involving moral turpitude.

The petition letter states that, if enough signatures are obtained there is no way the recall process can be stopped. Again, not so. The Florida Supreme Court has ruled that an accused elected official has an opportunity to defend himself or herself and stop the recall action based on “lack of legal sufficiency” (State v Tedder, 106 Fla, 140). Other Florida courts have used this ruling on other cases (Thompson v. Napotnik, 923 So. 2nd 537 5th DCA (2006))

The petition charges the three councilors with having voted to expand the sewer system on August 21, 2006. The fact is that the same sewer expansion program has been voted on, and approved by previous and present councils numerous times in the past three years. The petition is also erroneous in stating that, on August 21, 2006, the councilors being targeted for recall “voted to extend the STRP to three new districts”. No such vote was taken on that date. In fact, on that date five city councilors voted to approve the assessment methodology for future sewer districts.

The petition charges the three councilmen with voting for a program that, in the petitioners’ opinion, is unfair and inequitable. The petition fails to mention that the design and fairness of the program, approved by these councilors, has been upheld by the review and decisions of the Circuit Court and has been found to be legally sound and fair.

The petition letter states that those who sign the recall petition are “collectively referred to as the ‘committee’”. The Florida Statute 100.361 does not use the word “collectively” but states that “those signing the recall petition shall be designated as the ‘committee’” and that the leader of the petition will “act for the committee”. Therefore, unlike other petitions, those supporting a recall petition, are considered members of an official committee and may be responsible for the actions of their leadership.

Apparent Wrong Motivation for the Recall Action

For those who closely follow public issues, there is an obvious link between some who helped organize CARES, POP and now the recall efforts. The petitioners have targeted three councilors that voted for the sewers, as well as mentioning in the petition letter their desire to recall the fourth councilor who voted for sewers. The petitioners did not, however, move to recall, or show any intent to recall, any of the three councilors who voted against sewers. This selective recall action proves that the reasons for recall are clearly based, specifically, on the votes taken by those councilors being targeted for recall.

The Florida Supreme Court (Garvin v Jerome, 767 So. 2nd 1190 (2000)) clearly states that officials should not be faced with recall based on their votes on an issue and that the recall process is not to be used as a substitute for the elective process. Such action would compromise the elective process by removing a duly elected official solely on the basis of a vote. That is contrary to Florida law and they cannot be recalled on that basis. The three councilors who are involved in the recall were elected to office two years ago with some 6,000 votes.

When the POP referendum to change the city charter was thrown out for failure to meet the specific requirements of the city charter, the group involved in these efforts called such failure a “technicality”. They took the position that the people’s wishes were more important than the need to follow the legal requirements of the charter. In the description of the recall the petitioners also clearly state that decisions to recall should also be placed “in the hands of the voters and to prevent City Hall or the courts from interfering in the process”” and not depend on the legal requirements of such action. It is clear that the motivation of this group is to try and bypass the representative form of government and put the law in their own hands.

Unable to achieve their goals through the accepted elective/representative process, the petitioners have directed their efforts to overturn the governing process that has been successful, not only for Marco Island, but for all cities in Florida and the nation. The latest recall effort also ignores the effect this action would have on the remaining councilors who may be subject to recall next year and to candidates in future elections in our community.