To our Naples Friends and Supporters:
On behalf of the Ethics Naples Board of Directors, I want to provide you with an update on our effort to place a referendum on the August 28 ballot to create a new and better ethics code for the City of Naples.
Please take a few minutes to read this entire message because it contains useful and detailed information on our ongoing effort and the challenges that have been placed before it by City Council. But here is the short summary of recent events:
On April 21, the County Elections Supervisor certified that Ethics Naples had collected a sufficient number of signed petitions by registered city voters (1,481) to qualify for the ballot.They so informed City Council who then had the duty to refer this matter to the August 28 election ballot.
On May 2, City Council voted by a slim majority (4-3) not to refer this issue to the ballot but rather to file a declaratory action against Ethics Naples in the Collier County Circuit Court, contending that the proposed charter amendment contained certain provisions that were not legal and proper.
In the city’s subsequent filing, they chose to create a laundry list of what we believe to be spurious and piecemeal attacks against various elements of the charter amendment.Our view, based on our legal counsels’ review of Florida statutes and case law is that the entire amendment as certified should first be sent to the voters.If approved, then and only then can litigation occur over specific provisions within the amendment.
On June 19, Ethics Naples filed a short motion to dismiss the City’s complaint so that this amendment can be voted on.The circuit court will hold a hearing on this matter on August 21. Whatever decision is reached, there will likely be appeals.Thus, the referendum will not be on the ballot on August 28 but rather will need to be placed on a future general election or special election ballot, assuming the courts ultimately determine in favor of the Ethics Naples position.
Bottom line: The City’s actions are threatening to remove the right to vote for City residents on this important matter. Ethics Naples’ effort from the beginning was to bring this matter to a citywide vote and let citizens make the decision on the need for a new ethics code and policy. This is the basic issue at stake and what we believe will be ultimately supported by the courts.
Ethics Naples Legal Position
We believe that the facts and the law are on our side. We carefully crafted charter amendment language with the help of legal experts, drawing on successful similar actions in other Florida cities and counties. We followed the process set forth in Florida statute to gather petitions and submit them for verification. And we presented this request to City Council well in advance of any deadline for qualifying for the August 28 ballot.
City Council’s role was purely ministerial – it’s only duty was to refer this proposed amendment to the ballot and give people the opportunity to vote. And there was a clear process in place once the referendum passed to craft an implementing city ordinance that ultimately would be have to be approved by Council, wherein any issues of disagreement and detail could be worked out.
Why do we believe our position is correct? Here is what the Florida courts have said said in other similar cases:
In direct contradiction of the litigation attempt by the City Council to block Naples voters’ right to vote on the Ethics Amendment, the Florida Supreme Court and Florida District Courts have expressly emphasized that legal challenges such as the one filed here by the City should not be allowed to block the right of the voting public to vote on a proposed Charter amendment.
Where as here, the City’s lawsuit challenges individual sections of the proposed Ethics Amendment, the courts have held that circuit courts should not prevent the amendment from going forward to the ballot. The courts have emphasized that the proposed amendment — including the challenged individual sections — should be placed on the ballot; and, any challenges to these sections should be tried after the voters have been afforded their right to vote.
As stated by the Florida Supreme Court in Dade County v. Dade County League of Municipalities, 103 So.2d 512, 514-515 (Fla.Sup.Ct. 1958):
When a proposal of the nature here involved is assaulted on the ground that it violates the Constitution, the courts will not interfere if upon ultimate approval by the electorate such proposal can have a valid field of operation even though segments of the proposal or its subsequent applicability to particular situations might result in contravening the organic law. In other words, if an examination of the proposed amendment reveals that if adopted it would be legally operative in part, even though it might ultimately become necessary to determine that particular aspects violate the Constitution, then the submission of such a proposal to the electorate for approval or disapproval will not be restrained.
103 So.2d at 514-515 (emphasis added)
And the Florida District Court of Appeals similarly held in Rivergate Restaurant Corp. v. Metropolitan Dade County, 369 So. 2d 679, 683-684 (Fla. 3d DCA 1979):
…[T]he circuit court, in entertaining the appellant's complaint, was limited to a determination as to whether the proposed ordinance was invalid in its entirety before it could restrain the holding of the special referendum election. See also City of Miami Beach v. Smith, 251 So.2d 290 (Fla.3d DCA), cert. denied, 257 So.2d 561 (Fla.1971); Dulaney v. City of Miami Beach, 96 So.2d 550 (Fla.3d DCA 1957). An individual piecemeal attack upon a portion of the proposal, as opposed to an attack on the proposal in toto, was not sufficient to enable the circuit court to enjoin the election or to delete the language of the proposed ordinance that the court found to be unconstitutionally vague. Once it was determined that the “Clean Indoor Air” ordinance was not invalid in its entirety, or once it became clear that the appellant intended only a piecemeal attack on the proposed ordinance, the circuit court's judicial function was at an end and the wisdom vel non of the proposal was purely a matter for the electorate to decide. [footnote omitted]
In short, the circuit court's authority was restricted to an overall examination of the constitutionality of the proposed ordinance on its face. It fell into error when it went beyond that and determined that a portion thereof was unconstitutionally vague and should be deleted prior to consideration by the electorate.
So.2d at 683 (emphasis added)
But a slim majority of the City Council, upon advice of the city attorney, chose to ignore this clear mandate of the Florida courts and voted to sue to block the vote on the Ethics Amendment. Instead, it chose a different – and, in our view, improper --path that ultimately will cost city taxpayers tens of thousands of dollars in unneeded legal fees and potential special election costs (a special election costs upward of $40,000-60,000).
We Still Need Your Support
To continue this fight, we need your further help. Please send a contribution to help us see this battle to its end. You can mail your contribution to Ethics Naples, P.O. Box 7249, Naples, FL 34101, or go to our website (ethicsnaples.org) and donate online through PayPal.
And if you haven’t already, send an e-mail or letter to those members of City Council (Barnett, Buxton, McLeod and Seigel) who voted not to refer the amendment to the ballot and – in a respectful but direct way – share your disappointment in their decision and express your hope that will reverse their position and support ethics reform in Naples. It is never too late for City Council to take the right position on this issue.
Again, thank you for your past support and help, in whatever form it has been provided. Remember, over 1,500 Naples voters – nearly half the number that voted in the most recent City Council election this past February – signed the Ethics Naples petition and endorsed this effort. This initiative began with a small band of people who organized Ethics Naples. But it now belongs to all of us. We need to be given the right to vote on this referendum as the law provides.