Sharply divided though it’s been over the matter, the Palm Coast City Council is opting to fight a lawsuit that seeks to invalidate a proposed charter amendment at the Nov. 5 election, filing an answer to the lawsuit that seeks its dismissal primarily on technical grounds. That decision follows a closed-door meeting of the council last week that left little doubt it would fight rather than settle the suit, as had offered the plaintiff’s lawyer.
Answering the lawsuit, the city’s lawyer described the plaintiff–former mayoral candidate Alan Lowe–as “woefully short of meeting his extraordinary burden to show the proposed amendment is ‘clearly and conclusively defective’ as a matter of law,’” and cautioned against a court “interfering with the people’s right to vote.”
The city’s answer that the ballot language is “clear and unambiguous,” however, contradicts what a majority of the council has either said about the language or how that majority has voted to pull the ballot from consideration.
The dispute is over clarity and transparency. The proposed charter amendment refers to “updating” language in the charter and asks voters if they would approve removing wording that limits the city’s private-public partnerships. The city would then “address growth by having future residents contribute to infrastructure costs.” The language nowhere tells voters that they would be eliminating the requirement, currently in the charter, to hold a referendum whenever the city seeks to borrow more than $15 million (outside of certain funds like the utility) or enter into leases longer than three years.
The reference to “future residents” is also misleading if not demonstrably false since current residents would be equally on the hook for any such arrangements.
If the amendment passes, it would allow the city to borrow without limits, through such things as bonds or bank loans or enter into long-term partnerships and leasing arrangements with private business or entities. Residents’ tax revenue is the security, so if those arrangements sour, the city and its residents would be responsible for the debt.
Most cities and counties do not have debt limits that require referendums, making Palm Coast’s current charter requirement an outlier, and a reflection of the late 1990s’ political climate, when limiting debt was a focus on the national conversation. Bunnell and Flagler Beach, for example, do not have such limits built into their charters. That’s the “update” Palm Coast’s charter language is referring to, though obliquely.
On the other hand, the city has celebrated its own ability to “pay as you go,” as City Council Nick Klufas put it in one recent such bit of verbal applause for the city, managing to build its infrastructure without need for debt or referendums. Today, the city, with most of the council in attendance, broke ground on a new, $10 million fire station in Seminole Woods, to be built with local development impact fees and a state appropriation. The city is also building a new fire station on Colbert Lane. Neither is being done with debt, thus weakening the city’s claim that the charter is hampering its development.
The city has acknowledged that the only specified project for which such an arrangement could be put to work is a speculative $93 million sports complex envisaged for the so-called “westward expansion” west of U.S. 1.
Three council members–Ed Danko, Theresa Pontieri and Charles Gambaro–have questioned the transparency of the ballot language, with Danko going as far as calling it “deceptive.” Danko and Pontieri joined in a vote to remove the measure from the ballot. They failed. Gambaro attempted a similar vote. By then Pontieri joined a three vote majority to defeat that attempt, saying at that point she did not want to disenfranchise voters.
In its answer to the lawsuit, filed Monday in Circuit Court, the city asserts that the lawsuit improperly asks a judge to issue an injunction against a party that isn’t before the judge–the Flagler County Canvassing Board. Lowe filed the lawsuit against th city and Kaiti Lenhart, the supervisor of elections, in her official capacity. But as Lenhart pointed out in her own answer weeks ago, she herself has no authority over the balloting or the certification of votes. Only the canvassing board does. She is one of three members of the canvassing board. Assistant County Attorney Sean Moylan, representing Lenhart, on Oct. 1 filed an answer seeking to have the lawsuit dismissed since it did not name the canvassing board.
Circuit Judge Chris France is holding the first hearing on the matter on Nov. 1. “Were this Court to agree with [Lowe] at the November 1, 2024, hearing, it would have to issue an immediate order, and even then, it would not be logistically possible to effectuate it,” the city claims. Early voting will have neared its end by then. Most mail ballots will have been turned in, likely with more than half the electorate having already voted. (As of today, 26,000 voters, or 26 percent of registered voters in Flagler, had cast a ballot, either in early voting or by mail.)
Lowe, the city argues, “has not sought to amend his complaint to bring this indispensable party before the Court. The election is a mere 15 days away, and the hearing in this matter is November 1, 2024 – just 4 days away from the election.” That makes addressing the claim “impossible,” the city states.
Jay Livingston, one of two attorneys representing Lowe, has argued that “canvassing boards are irrelevant to these types of challenges because it is not about the election itself but the validity of the referendum because of how it is presented to voters when they cast their votes.” To Livingston, the results on Nov. 5 are irrelevant: “Even a tallied and certified amendment can be invalidated years after a election if the requirements of the ballot summary statute are not met.”
The city also points out that while the City Council originally approved the charter amendment language on July 16, it wasn’t until two months later that Lowe filed the lawsuit and asked for an expedited hearing. The pleading leaves silent what took place in the meantime: after the July approval, the council lost one of its members to a resignation and the charter language was brought up again several times, with two attempted votes to remove it from the ballot, or keep it from being counted. The city’s answer does not refer to the council’s splintering over the question.
“Florida law places minimal statutory requirements on ballot language,” Rachael Crews of GrayRobinson, the firm representing Palm Coast in this lawsuit, wrote in the city’s answer. “Stated simply, the ballot title and summary must contain clear and unambiguous language to fairly inform the voters of the amendment’s chief purpose, and the language must not be affirmatively misleading. There is no requirement the summary set out all the amendment’s details and ramifications, which is not possible given the 75-word statutory limit. Rather, the language is only meant to provide voters with fair notice of the issue. After that, it is the voter’s duty to educate himself before entering the voting booth.”
To the city, the ballot language meets that test without misleading voters. Crews’s answer simply asserts that conclusion without illustrating it, or answering the charge that voters are not told of what is being removed from their authority. She repeatedly claims that the language is “clear and unambiguous,” a claim even Pontieri, the council member at the edge of doubt over the amendment, would not use to describe it.
The answer is most forceful and convincing in its argument against court interference in an ongoing election, though such interference is not without precedent. At least twice Florida courts, including the Supreme Court, have invalidated similar municipal referendums after the vote was certified, because the language was misleading.
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