It is one of the mocking ironies of the Palm Coast reality show known as America’s Next Top Mayor that the same man found to have violated the city charter is now invoking it to boot fellow Councilman Charles Gambaro off the island.
Consistency isn’t a Mike Norris quality. This is the man who said the last thing he wants is to get Palm Coast sued–a day after he sued Palm Coast. This is the man who began Tuesday’s meeting with an eloquent appeal to civility, only to let his amen corner in the audience yet again turn public comment into a splash-padded cesspool. This is the man who claims a developer tried to corrupt him but not so much that it couldn’t wait four months to be reported.
For all that, the lawsuit he filed against the city this week, arguing that the council violated the charter when it appointed Gambaro last October, has merit. It would have been more credible had it borne a name other than Norris’s. But Ernesto Miranda and Larry Flynt were not paragons of nobility when lawsuits were filed in their name, either, and we still owe Fourth Amendment protections to the serial criminal and First Amendment protections to the pornographer.
The law is the law, whoever’s name is on the pleadings. If a strict constructionist like Antonin Scalia were to have a look at Norris’s case from his seat in Heller, he’d conclude that the City Council violated the charter. A less fundamentalist judge might conclude otherwise.
The charter is not well written. It can be obscure. It’s contradictory, though that’s not unusual even for the Constitution: judges balance out contradictions in law and constitutional clauses, sometimes within the same sentence, all the time, elevating one right at the expense of another when the two clash. Interpreting the charter is no different.
On this score, the question hinges on whether the council legally appointed a new member even though there were more than two years left in the term, which would have required an election, not an appointment.
The charter is not explicit. It doesn’t say the council must wait until the next election if a member resigns with more than two years left. It only infers it. It states that an appointment must be made within 90 days if a member resigns “within the last two years of a term.” It’s a reasonable inference. (See the language below.)
But it’s not air-tight. “The last two years” is not defined, as it must be both in itself–do the two years include the primary election window? The general election window? Both? Does the clock start at swearing-in or with Election Day?–and in accordance with the modern-day electoral calendar. Remember: there was no early voting when the charter was written. Absentee balloting was minuscule. Ballot-printing timelines were more fluid. The 1 percent rule applied in a city where it was enough to gather 260 petitions to qualify for office, not 746.
A judge might reasonably say that’s irrelevant and stick to dates. Then-Council member Cathy Heighter decided to jump out of depths she never plumbed last Aug. 16. The council met on the 27th to decide how to proceed. It could’ve met in an emergency session a week earlier instead of irresponsibly letting 14 days go by between meetings. The Supervisor of Elections was not mailing out the first ballots for at least two weeks, and could have been convinced to push it to mid-September. There was ample time for an election, and enough time for committed candidates familiar with Publix exits, public meetings and public parks to secure the 746 petitions necessary to qualify without paying the $2,600 qualifying fee, even if barely. (There were 74,649 registered voters in Palm Coast at the time. A candidate would have had to secure at least 1 percent of that in petitions.)
When there is a choice between an election and an appointment, an election must prevail. The council at the time, displaying more arrogance than deference–the very flaw that cost David Alfin his election–opted for an appointment, with the backing of its lawyer’s opinion, which it only half followed. It interpreted the charter its way. One council member’s worry that an election could close the door to candidates without time to secure petitions or money to qualify was valid. But more valid than eliminating the electorate altogether? It was not an illegal decision. Nor was it the wisest decision.
Gambaro was appointed. Norris got elected–and went to war against Gambaro, undermining his own case. Norris has the right to contest the appointment. He does not have the right to slander Gambaro’s integrity, let alone encourage the mob in the audience to stone Gambaro at every chance. That reveals the real motive behind Norris’s war: He doesn’t give a damn about the charter. We now factually know that. He just wants an ally in Gambaro’s seat. The lawsuit is his means to an end.
The judge could order Gambaro removed. Then what? The removal would leave an empty seat with less than two years in the term. The council could hold a special election and spend $120,000 to do it (maybe Norris could donate his remaining three years’ salary to make up for it). But a strict reading means that would be a violation of the charter. The council could appoint someone. But it would have removed an appointee to put another one in his place. The re-appointment of Gambaro is not out of the question: he has a 4-1 majority. Meanwhile the whole comedy would compound and reward the one-man debacle Norris has made of this council.
That’s really his end game: constant chaos fueled by conspiracies so the public is distracted from his unwillingness–his inability, really–to govern. He happens to have a legal case to remove Gambaro, but it’s not the strongest case, and Noris is undermining it by the day.
He’d better hope Judge Chris France is not watching. The judge doesn’t like to be manipulated, as he showed the owners of the Old Dixie motel before it was finally demolished (they owe the court $120,000 in contempt fines). The judge doesn’t like to second-guess local government, either, as he showed in another lawsuit against the city just before the election. If there’s any ambiguity in the language of local ordinances or charters before him, he’ll defer to the elected.
It’ll be the right call. The arrogance of last year’s council does not define its successor, catastrophic mayorship notwithstanding. Just be sure to collect legal fees, Council. Then appoint the right chair to the next charter review committee: this thing needs a rewrite. But it needs it by someone who knows the city down to the charter’s origins, who knows the law, and who knows the English language. The only person who fits that bill is former Councilman Bob Cuff.
The Palm Coast Charter‘s language regarding council vacancies other than the mayor’s seat:
If, for any reason other than recall or assuming the office of Mayor, a vacancy occurs in the office of any Council seat within the last two years of a term, the office shall be filled by appointment within 90 days following the occurrence of such vacancy by majority vote of the remaining Council members. If said vacancy occurs within six (6) months of the next regularly scheduled election, the remaining Council members may delay the appointment. Such appointments shall last until the next regularly scheduled election, at which time the seat shall be declared open and an election held for the regular four-year term.
Pierre Tristam is the editor of FlaglerLive. A version of this piece airs on WNZF.
