The attorney Jay Livingston was sitting in the audience when the Palm Coast City Council on July 16 took again took up the wording of a proposed charter amendment. If approved, the amendment would give the city unlimited borrowing, leasing and bonding authority.
The council had requested the wording at a workshop just three weeks earlier. It approved a version on first reading two weeks before. The charter currently allows the city to lease, bond and borrow for any amount, but if the amount exceeds $15 million, or a lease-purchase arrangement stretches past 36 months, the city must get voter approval at a referendum. The proposal on the Nov. 5 ballot would do away with that condition.
Livingston wasn’t there for the amendment. He was there for the item after that, the annexation into the city of the BJ’s Wholesale Club property, a routine item. His ears pricked up when City Attorney Marcus Duffy read the summary wording of the amendment. He’d never heard it before. He would hear it again many times after, reading it to himself as he’d try to make sense of it. What struck him was its incomprehensibility. The germ of the lawsuit he filed against the city on behalf of Alan Lowe this week, seeking to have the ballot measure either pulled or left uncounted, was seeded that day–by the council.
“Anybody that doesn’t have a background and walks into the voter booth and looks at that ballot summary is going to have no idea that they’re getting rid of their ability for all time to approve expenditures of–whatever the amount is, $15 million at this point–they’re giving that up for all time,” Livingston said in an interview this week. He wasn’t disputing the city’s right or even its intention to do away with the limit. He’s sympathetic with the city on that score. “That’s a perfectly legitimate thing for the voters to decide,” he said. “But that’s not the ballot summary.”
Livingston said he took a personal interest in the case. It’s less clear why the name on the lawsuit is that of Alan Lowe, who just lost his latest run for mayor, rather than a less discredited individual. “He expressed an interest in pursuing the matter and we agreed to represent him. His past and people’s differing opinions or perceptions about him should not matter in this particular case,” Livingston said. “Asking the citizens of the City to vote to eliminate that referendum power, and disenfranchise themselves, without even mentioning it in the ballot summary should be the focus here not the personality or history of the plaintiff who chose to bring the case.”
Lowe said in recent podcast that Livingston gave him a statement to read. “Pretty much it’s all I can say about it,” he said, with Council member Ed Danko as his “co-host,” sitting across the table. “I believe our filed complaint speaks for itself,” Lowe said into the mic. He then paraphrased the complaint. Lowe has in the past been a Danko ally or mouthpiece, which Danko has disputed. In this case it’s difficult to see more distance between the two than when they sat in the same podcast studio on Sunday.
Livingston kept listening to the council members discuss the summary on July 16. Danko wasn’t necessarily opposed to the proposal–as he would later be–but he was uncomfortable with the vague language. “We need to be transparent and clear to the public,” he said. “I’m not saying I support this. I’m not saying I’m opposed to it. I’m saying our public just cannot be muddled up in some language that is confusing like that. It’s not right. I think we need to rewrite this in such a way that it specifically says what we’re talking about. I think we need to take the time to get this right before we put it on the ballot.” He’d brought up the issue with the city attorney but the language hadn’t changed–for good reason: a single council member cannot unilaterally change a proposal. Consensus from the remaining members is required.
Clearly there was a problem with the language. Council members discussed adding “guardrails” to city borrowing policy and tweaked the ballot language, but did not change it substantially by the time the council voted 5-0 to approve the proposal on second reading (Cathy Heighter was a few weeks short of her resignation at the time.) The discussion had lasted 34 minutes.
Six weeks later, Livingston wrote four of the five council members and Duffy of what he perceived as legal problems with the wording of the proposal. He did not send the letter to Danko because “he reached out to me when it was brought to my attention and we had discussed it extensively in advance of the August 27th Business Meeting.” But by then the full council had read what amounted to Livingston’s warning: the ballot language was “incredibly deceptive,” he said, citing a 2020 case where voters in Miami challenged a city referendum on building a soccer stadium.
The challenge failed. A trial and an appeals court sided with the city and its wording, so in effect the city could just as easily cite the case in its favor when defending its ballot language, though that might be risky: the Miami ballot language was far more precise, down to a series of dollar figures, acreage, hotel rooms and rent charges.
The case defined how ballot language may be deemed defective: “First, whether the ballot title and summary fairly inform the voter of the chief purpose of the amendment,” Livingston wrote. “Second, whether the language of the ballot title and summary misleads the public. I am concerned the ballot summary for the proposed amendment does not satisfy this test.”
Palm Coast’s ballot language alludes to removing a “section” of the charter without mentioning the content of that section, which is the most salient part of the proposal: to end the $15 million or three-year limit on borrowing or leasing arrangements.
“Without explicitly stating that the amendment removes the requirements that any contract with a repayment period in excess of 36 months or that exceeds $15,000,000 must be approved by the voters,” Livingston wrote the council members, “the summary is not informing the voters of its chief purpose. It is odd that neither of these details are even mentioned in the
ordinance or the ballot summary when staff discussed both to justify the amendment to council when the ordinance was voted on.”
Danko raised new issues with the language and the measure’s intentions at the council meeting two days after Livingston sent his letter. Danko was not decorous about it. But a week later he and Pontieri tried either to pull the measure from the ballot or to rewrite it more clearly. They failed in a 2-2 vote that nevertheless sent the message that the council was splintered over its own proposal.
The lawsuit that followed could not have been a surprise to council members. “Whether or not the council members agreed with my position or responded directly,” Livingston said of his letter, “they did discuss the matter on more than one occasion after the emails were sent which is its own form of response in my opinion. That did not result in it being pulled from the ballot or a revision of the summary to make it clearer, which made the lawsuit necessary.”
Unquestionably, the matter will come up at subsequent council meetings. One was scheduled for today but was cancelled because three of the four council members have Covid. A budget hearing is scheduled for Wednesday.
Meanwhile on Monday Duffy, the city attorney, suggested to council members that they only discuss the lawsuit in a “shade” or closed-door meeting. State law allows for such closed-door meeting, but under very strict and narrowly defined conditions that don’t necessarily apply.
First, the law is very clear that the city attorney should have advised the council “at a public meeting,” as the law states, not by email, that he wanted a closed meeting. He is required by law to spell out the reason in an open meeting. Sending an email and getting responses from council members on setting up such a meeting could be perceived as an illegal meeting in itself. (FlaglerLive requested any communications between the attorney and council members in that regard. There was no response before this article initially published.)
Second, “The subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures,” the law states. Simply discussing whether to pull the referendum from the ballot, or discussing whether to have it counted or not, may not fit the allowable parameters of a closed meeting, especially since no settlement negotiations have begun and no litigation expenditures have been discussed. When that closed-door meeting is held, it will have to be recorded and a transcript made available to the public once the matter is resolved. “No portion of the session shall be off the record,” the law states–a provision some of the council members may find difficult to abide by.
