Alan Lowe, one of the candidates for Palm Coast mayor defeated in the August primary, sued the city and the Supervisor of Elections on Friday to remove from the November ballot a charter amendment that would scrap limits on the city’s borrowing and leasing capacities. The suit argues that the amendment’s language is misleading–a point two of the four sitting council members have made, as have both remaining candidates for mayor and some of the candidates for council seats.
The ballot summary is misleading, the lawsuit states, “by failing to explain the chief purpose of the proposed amendment to the City Charter, which is to take away the right of the citizens of Palm Coast to approve by referendum vote clearly defined fiscal limitations placed on the City and, effectively, to allow the City unlimited discretion.”
Charter amendments have a legal requirement to fairly and unambiguously inform voters and to not mislead them about the measure’s intent. “The ballot title does not accurately reflect what the amendment would do, as it would not ‘update’ but rather erase provisions,” the suit states, “and the ballot summary language impermissibly flies under false colors and hides the ball because it fails to, in clear and unambiguous language, fairly inform the voter of the chief purpose of the amendment, and because its language, as written, misleads the public.” In a clever line that would catch any judge’s attention, the suit adds: “The ballot language is biased and misleading both because of what it says and because of what it does not say.”
As currently filed though, the lawsuit is slightly flawed: it quotes ballot language that the council has since amended. It would be easy for the city to file a motion to dismiss on that ground. But it would be just as easy for Lowe’s attorneys to file an amended complaint with the correct language. The attorneys filing the lawsuit are Jay Livingston of Palm Coast and Douglas Burnett of St. Augustine, both land-use attorneys who frequently represent developers.
“That’s an easy thing to fix, I can amend that and refile it by Monday,” Livingston said today. “I don’t think it has any bearing on the substantive arguments in the lawsuit,” particularly since the ballot summary as it appears on the actual ballot is also included in exhibits.
Just 46 days from Election Day, the lawsuit further muddles the prospects of a ballot proposal that has been controversial almost from the time it was first discussed in early summer. The lawsuit now places the council in a no-win situation. Fighting the lawsuit would further focus attention on the controversy rather than on the measure’s merits. Even if the city prevails, as it very likely would, the victory would just as likely be so pyrrhic as to ensure that if a better-written, more transparent measure were to be floated in the next two years by the next council, it would fail by association. In other words, this council’s decision–or intransigeance–could hobble the next council’s attempt at a more successful referendum.
The defeat in primaries of three of the five council members who in July approved sending the measure to voters, plus the resignation of a fourth, had already severely weakened the measure’s credibility. (Lowe’s credibility is not stellar, either: he drew 13 percent of the vote in his latest bid for a council seat, least among five candidates.) Then two of the four council members–Ed Danko and Theresa Pontieri–raised questions about the ballot wording less than three weeks ago.
Danko called it deceptive and misleading, and felt he himself had been misled when he first approved its language in July, when he thought the measure was to facilitate infrastructure improvements in Palm Coast. Instead, he said, the measure is tied to a planned $93 million sports complex in the yet-unbuilt west side of the city. The ballot language doesn’t refer to any projects, leaving voters with the impression that only future residents will bear the cost of future debt–a word (“debt”) that does not appear in the ballot language. Danko wanted the measure removed from the ballot or at least rewritten or delayed.
Pontieri sought to rewrite it or delay it as well, and proposed new wording that would have gotten Danko’s support, but by then it was too late to make it onto the ballot in time. So they motioned to have it removed. Their motion failed.
No matter what the council or the circuit court decide, it is too late for changes to the ballot. The referendum and its language have been printed, and ballots are being mailed. “So far we’ve sent our military and overseas citizens’ ballots, those went out yesterday,” Supervisor of Elections Kaiti Lenhart said this morning, “and Thursday is our mailing date for all our other mail-in ballots, the 26th. Nothing can change the ballot at this point.”
But it’s not too late either for the city or a court to nullify the referendum, even though it’s on the ballot: it can be left uncounted.
“It is possible,” Lenhart said. The City Council “would have to have a majority vote to essentially remove the item. It would still be on the ballot, but it would not be counted. Or, a court order could mandate the same.” It would be the same as if a candidate had withdrawn. Notices would be posted in voting booths, and, time permitting, slips would be included in mail-in ballots to inform voters that the referendum would not be counted even if ovals are filled in. “The machines would not compile or publish the results,” Lenhart said.
Precisely that scenario unfolded in 2010 when the county approved a referendum pushed by the chamber of commerce at the time, that would have levied a tax for economic development. The referendum made it to the ballot (ironically with language far more transparent and precise than the city’s referendum). But the proposal was so poorly received by the public well before the vote that the chamber and the county opted to nullify it–not to have it counted. So it wasn’t.
Palm Coast’s proposed referendum is following the same pattern, in worse: in 2010, the County Commission was unified in proposing the tax referendum, as was the chamber. No such unity exists today, either on the council or even among some members of the chamber’s successor.
Pontieri in an interview today said “the language of the amendment certainly could have been made more clear,” but she does not consider the language that has made it onto the ballot legally wanting. “My very first endeavor when this was brought up, was to speak with legal counsel about whether or not this language was legally sufficient pursuant to case law and pursuant to what the law requires, and I was assured by legal counsel that it was. So depending on legal counsel, I was satisfied.”
Pontieri is herself a lawyer. Analyzing the lawsuit from that perspective, and pointing out its flawed premise, she said “injunctive relief is very hard to succeed on, and they’re going to operate on a very tight window. Unfortunately our city is going to be wrapped up in a lawsuit that’s going to cost us a lot of money over the next couple of weeks.”
“It’s disheartening to see that a taxpayer would file a lawsuit against the city that’s going to cost taxpayers more money in legal fees to defend rather than making their voices heard at the ballot box,” she said. “But I guess that’s their right to do.”
Danko today took the lawsuit as confirmation of what he’s been saying for weeks. “I’m not surprised there’s been a lawsuit filed,” he said, though he said he was surprised Lowe had filed it. “This language was deceptive, dishonest, right from the start, and I’m very disappointed that our city attorney didn’t catch that, and alert us to the issues.” He was adamant: “I don’t think the city should spend a penny fighting this lawsuit.”
It’ll be up to the council in coming days to decide whether to fight the lawsuit or to surrender to the likelihood of one more failure at the ballot box for its lame-duck majority. But if the council is to reconsider pulling the measure from the ballot–or at least nullifying it–that motion would have to be initiated by Mayor David Alfin or Council member Nick Klufas, since Pontieri and Danko were at the losing end of their attempt to do the same.
Alfin, who has been ill, deferred comment for now. “I’m not familiar with it yet, it’s my understanding there’s not been an official service,” the mayor said this morning. “I don’t have any thoughts yet.” Both Alfin and Klufas were battling Covid.
Cornelia Manfre and Mike Norris, the two candidates in a run-off for mayor, each urged the council to delay the proposal. “The language is very confusing, and I think it needs to be reconsidered,” Manfre told the council. “To change the charter, eliminating a cap on borrowing, is not necessary and should be left for the incoming council to address. Therefore, I’m asking that this referendum, in its vagueness, be stricken from the ballot.”
Norris was even more sharply opposed: “They put these safeguards in place,” he said of the original authors of the charter, “and what you’re attempting to do is you’re going to put the city in debt. “And if the city’s funds are going to go to fund this, advertising it up to the election, I’m going to put as much money from my campaign as I possibly can to campaign against it.” It’s not clear if Norris could legally use his mayoral campaign funds–as opposed to his personal funds–to campaign against a different ballot measure, but his point was clear.
lowe-v-palm-coast
