MINUTES OF THE SPECIAL SARASOTA CITY COMMISSION MEETING OF JANUARY 24, 2005, AT 5:00 P.M. PRESENT: Mayor Richard F. Martin, Vice Mayor Servian, Commissioners Fredd "Glossie" Atkins, Danny Bilyeu, and Lou Ann R. Palmer, City Manager Michael A. McNees, City Auditor and Clerk Billy E. Robinson, and City Attorney Robert M. Fournier ABSENT: None PRESIDING: Mayor Martin The meeting was called to order in accordance with Article III, Section 9(a) of the City of Sarasota Charter at 5:00 p.m. City Auditor and Clerk Robinson gave the Invocation followed by the Pledge of Allegiance. 1. DECISION RE: : QUALIFICATIONS OF A CANDIDATE FOR THE CITY COMMISSION AT-LARGE RACE SCHEDULED FOR MARCH 8, 2005 = APPROVED TO PLACE THE NAME OF SUZANNE ATWELL AS A CANDIDATE FOR AT-LARGE CITY COMMISSION ON THE MARCH 8, 2005, BALLOT PROVIDED THE DEFICIENCY IS CURED WITHIN 24 HOURS FROM THE CURRENT TIME (AGENDA ITEM I) CD 5:00 through 4:38 Mayor Martin stated that the item concerns a decision of the Commission concerning the qualifications of a candidate for the Commission at-large election scheduled for March 8, 2005. City Attorney Fournier stated that Section 4, Article III, Sarasota City Charter, provides: The City Commission shall be the judge of the election and qualification of its own members, subject to review by the courts. City Attorney Fournier stated that the City Auditor and Clerk is the filing or qualifying officer for candidates for the office of Commissioner; that the City Auditor and Clerk has requested the matter be brought before the Commission and scheduled the item on the Agenda of the Special meeting sO the Commission could make a determination; that the facts are undisputed; that one of the prospective candidates for City Commission, Suzanne Atwell, filed a complete package on the first day of qualifying but did not sign one of the forms, specifically the Loyalty BOOK 58 Page 29654 01/24/05 5:00 P.M. BOOK 58 Page 29655 01/24/05 5:00 P.M. Oath, which was discovered approximately 20 minutes after the qualifying period closed at 12 noon on January 21, 2005; that the candidate was not called or advised by the Office of the City Auditor and Clerk the qualifying documents were deficient or incomplete and the one signature was missing during the qualifying period; that the City Auditor and Clerk advised of the problem the afternoon of January 21, 2005; that a telephone conversation was held with the Assistant Director of the State Division of Elections and two members of the General Counsel's Office by the Close of business, January 21, 2005; that the State was unable to research the issue thoroughly but provided advice based on the circumstances presented; that the State indicated Section 99.061(7) (a), Florida Statutes, as follows is controlling with which he concurs: In order for a candidate to be qualified, the following items must be received by the filing officer by the end of the qualifying period: 3. The loyalty oath required by S. 876.05, signed by the candidate and duly acknowledged. City Attorney Fournier continued that if the only statute involved, no further recourse would be available; however, Section 99.061(7) (b), Florida Statutes, as follows also applies: If the filing officer received qualifying papers that do not include all items as required by paragraph (a) prior to the last day of qualifying, the filing officer shall make a reasonable effort to notify the candidate of the missing or incomplete items and shall inform the candidate that all required items must be received by the Close of qualifying. - City Attorney Fournier stated further that the counsel for the General Counsel's Office advised the filing officer had a duty to make a reasonable effort to advise the candidate of insufficiencies or incomplete items among the qualifying documents if discovered by the filing officer; however, the ultimate responsibility for determining the qualifying documents are correct remains with the candidate; that the candidate should check the documents; that aiter further investigation, a different conclusion than the counsel for the General Counsel's Office has been reached; that the duty of the filing officer to advise the candidate is a statutory duty imposed by Section 99.061 (7) (b), Florida Statutes, and- not by case law; that the anticipation was Section 99.061(7) (b) would reference discovery of deficiencies rather than receipt of deficient qualifying papers; that the statute imposes an affirmative obligation on the filing officer to give a candidate one opportunity before the close of the qualifying period to correct deficiencies in the qualifying documents; that a former statute established timeframes for the opportunity to correct which was seven days from the end of the qualifying period or the time the qualifying documents were filed; that the filing officer has a duty to review the qualifying documents to determine if complete; that the statute contemplates the prospective candidates will be given one opportunity to correct any deficiencies. City Attorney Fournier further stated that the counsel for the General Counsel's Office advised of a case holding the filing officer did not have an affirmative duty to advise the candidate; that counsel believes the case controlling; that the holding in the case has been reviewed; that his opinion is the case does not apply and is persuasive for the opposite result; that three cases were identified which factor into his opinion: Sancho versus Joanos, 715 So.2d 382 (1st DCA Fla. 1998) Bayne versus Glisson, 300 So.2d 79 (1st DCA Fla. 1974) Siegendorf versus Stone, 266 So.2d 345 (Fla. 1972) City Attorney Fournier stated that the plaintiff in the Sancho versus Joanos case sought to obtain a writ of mandamus which is a remedy to compel a public official to perform a ministerial, non-discretionary function and is often used to obtain the issuance of a building permit, for example; that the candidate for the County office in the case alleged the Supervisor of Elections had not performed the duty under the statute to notify the candidate of missing items in the qualifying documents prior to the end of the qualifying period; that the court held no duty existed under the circumstances of the case; that the candidate had filed two of the six required items prior to the commencement of the qualifying period; that the court held the candidate was not entitled to the writ of mandamus since some qualifying documents had been filed before the qualifying period began but no qualifying documents had been filed during the qualifying period; that the court indicated the term "qualifying papers" as used in the statute meant papers filed within the one week qualifying period; therefore, the case does not apply as Ms. Atwell timely filed the qualifying documents within the qualifying period; that the case seems to suggest the qualifying officer would have had a duty if the candidate had timely filed the qualifying documents during the qualifying period; and quoted the opinion as follows: BOOK 58 Page 29656 01/24/05 5:00 P.M. BOOK 58 Page 29657 01/24/05 5:00 P.M. Where a candidate presents himself before a filing officer for qualifying during the first four days of the qualifying period and submits incomplete qualifying documents, the filing officer clearly has the duty under Section 99.061(7) (b) to make a reasonable effort to notify the candidate of any missing or incomplete documents and of the deadline for submission of the items. City Attorney Fournier stated that the result in the instant case is based on the fact the qualifying documents were filed prior to the qualitying period; however, the case supports the idea the candidate should be given an opportunity to remedy a defect; and continued that in the case of Bayne versus Glisson, the writ of mandamus was granted and the Secretary of State, as the State filing officer, was ordered to place the plaintiff's name on the ballot as a candidate for the State Legislature; that the prospective candidate was in the Secretary of State's office minutes before the end of the qualifying period but could not reach the room in which the qualifying documents must be filed; that the doors to the room were locked at 12 noon, at the end of the qualifying period; that the candidate was in the building but indicated he could not find the room due to the lack of signage and mass confusion among the crowd present; that the court indicated the writ of mandamus should issue and the candidate should be qualified; that the court referenced the general philosophy in Florida about cases involving elections and cited a case of the Florida Supreme Court discussing the strict satisfaction of statutory qualifying requirements as follows: Literal and total compliance with statutory language which reaches hypersensitive levels and which strains the quality of justice is not required to fairly and substantially meet the statutory requirements to qualify as a candidate for public office. Public policy in Florida is to afford the voters the widest opportunity to make a choice in the election of their public officials. The tendency has been and still is to extend further the privilege of the people to participate in their government rather than to curtain such participation by the people. City Attorney Fournier stated that the opinion cited opinions in other jurisdictions holding special or extraordinary circumstances can justify a technically late filing of qualifying documents occurs sO a candidate can qualify; and continued that the case of Siegendorf versus Stone is a 1972 case and is the Florida Supreme Court case cited in Bayne versus Glisson; that the case involved two candidates for a County Court judgeship in Dade County; that one candidate qualified with only two minutes remaining in the qualifying period; that the Secretary of State qualified both candidates; that days later, the other candidate challenged on the basis the Oath of Candidacy was defective as the full title of the office sought was not indicated and sought a writ of mandamus to disqualify the potential opponent; that the Florida Supreme Court denied the writ and found: That to reject or challenge the candidacy when the period for qualifying had closed would have been a denial of due process. City Attorney Fournier stated that the qualifying officer would have had only two minutes prior to the deadline to advise the candidate of the deficiency in the Oath; that important to the Court was the Oath was accepted by the qualifying officer; that the Court found: It would be a denial of due process and unfair treatment of the candidate to remove him from the ballot. City Attorney Fournier continued that the Court considered the qualifying period had closed, the candidate could not fix the defect, and the Secretary of State had accepted the qualifying documents; that the current situation is the qualifying officer cannot act unilaterally after the close of the qualifying period; that the authority of the qualifying officer to accept any corrective documents ended at 12 noon, January 21, 2005; that no recourse would be available except through the courts if a State or County office were involved; however, Section 4, Article III, Sarasota City Charter, provides: The city commission shall be the judge of the election and the qualifications of its own members, subject to review by the courts. City Attorney Fournier stated that his opinion is Section 4, Article III, Sarasota City Charter, gives the Commission the authority to rule on whether a candidate is properly qualified if the City Auditor and Clerk brings forth the question; that the Commission is required to make a determination as to the final, appealable decision; that a question has been raised concerning the potential for a conflict of interest as two BOOK 58 Page 29658 01/24/05 5:00 P.M. BOOK 58 Page 29659 01/24/05 5:00 P.M. sitting Commissioners are also candidates in the election; that the statutory standard is an elected official is to abstain from voting if a matter could result in a special private gain or loss; that an exception is if the result is too speculative; that one could conjecture as to whether the decision would go to one's special private gain or loss; however, the effect on the election is purely speculative; therefore, in his opinion, the decision does not rise to the level of affecting private gain or loss necessitating either of the two incumbents to abstain; that the recommendation is for a motion the City Auditor and Clerk be directed to place Suzanne Atwell's name on the ballot for the upcoming municipal election as a candidate due to the special circumstances provided she executes the required Loyalty Oath within 24 hours. On motion of Vice Mayor Servian and second of Commissioner Atkins, it was moved to placed the, name of Suzanne Atwell on the March 8, 2005, ballot as a candidate for an at-large City Commission seat provided the deficiency is cured within 24 hours. Mayor Martin stated that a motion is on the floor; however, someone has signed up to speak. City Auditor and Clerk Robinson stated that typically, a motion will be held until after the public input is received. City Attorney Fournier stated that the Sarasota City Charter does not address public comment; therefore, accepting public comment is at the discretion of the Commission. City Auditor and Clerk Robinson stated that the Commission's procedure is to allow citizen's input at special meetings. Mayor Martin stated that the citizen will be allowed to speak. The following person came before the Commission: Jon Susce, P.O. Box 37502 stated that he is a candidate for City Commissioner; that politically, having Ms. Atwell's name on the ballot would be in his best interest; however, the rules are the rules; that precedents could be found; that the qualifying period ended at 12 noon on January 21, 2005; that all the candidates completed the qualifying papers; that the decision will be very difficult for the two candidates who are sitting on the Commission; that the two candidates who are sitting on the Commission should not be allowed to vote; that repercussions could result from voting against the recommendation; that the decision must be made; however, that the Commission would likely not be meeting at this time if he failed to sign; that he is against approving the recommendation; that the rules should be enforced. City Attorney Fournier stated that the Commission has a choice between two alternatives; that the action must be consistent with the law; that the special circumstance is the qualifying officer did not discharge the statutory duty to advise the candidate and allow one opportunity to correct the deficiency. Mayor Martin stated that the Sarasota City Charter indicates the decision rests with the Commission; and restated the motion as to place the name of Suzanne Atwell as a candidate for at-large City Commission on the March 8, 2005, ballot provided the deficiency is cured within 24 hours from the current time. Vice Mayor Servian stated that everyone understands rules are established; that all the members of the Commission have run for election and had an obligation to complete the qualifying documents in a timely manner; that another duty rests with the qualifying officer to review the qualifying documents and to give any candidate an opportunity to cure the defect; that the opportunity was denied to the candidate; that the Commission has the ability through the Sarasota City Charter to make the decision; that the Commission would make the same decision for any candidate; that the process is not selective; that the ruling by the Florida Supreme Court indicated voters should be afforded the widest possible choice, which is fundamental in the democratic process; that the Commission should do everything possible to support the democratic process. Commissioner Atkins stated that approving the recommendation is the right thing to do; that the election process is understood; that empathy for the position of the City Auditor and Clerk is expressed; that being in the position of the City Auditor and Clerk would not be desired; that the difficulties inherent in the process are understood; that the motion is supported. Commissioner Bilyeu stated that rules are created; that land uses are in place; however, a means exist to change land uses; that a rule in the election process provides the Commission the opportunity to change, which is part of process; that the motion is supported. BOOK 58 Page 29660 01/24/05 5:00 P.M. BOOK 58 Page 29661 01/24/05 5:00 P.M. Commissioner Palmer stated that the decision is not difficult; that as a teacher of American history and political science for many years, democracy allows the people an opportunity to make decisions; that the Commission can open the opportunity for the people to make the decision among the candidates for the seat of City Commissioner; that she was in the room, along with other candidates, at the time the qualifying documents were submitted by Ms. Atwell to the City Auditor and Clerk; that the City Auditor and Clerk accepted the qualifying documents as was appropriate; that all the candidates likely assumed the complete qualifying documents were being submitted; that the omission was not identified until 19 minutes past 12 noon, after the close of the qualifying period; that Ms. Atwell filed the qualifying documents at the first available moment of the qualifying period; that Ms. Atwell should be on the ballot with the other candidates; that the choice will be up to the people on March 8, 2005; that the point is not to restrict but rather enhance the democratic opportunity; that based on the information provided by the City Attorney, court decisions and a statutory basis exist to allow Ms. Atwell to enter the election. Mayor Martin called for a vote on the motion to place the name of Suzanne Atwell as a candidate for at-large City Commission on the March 8, 2005, ballot provided the deficiency is cured within 24 hours from the current time. Motion carried unanimously (5 to 0): Atkins, yes; Bilyeu, yes; Pa.mer, yes; Servian, yes; Martin, yes. Vice Mayor Servian stated that the efforts of City Attorney Fournier and City Auditor and Clerk Robinson, both of whom have worked tirelessly to resolve the issue, are appreciated; that City Attorney Fournier has researched the issue to the fullest extent possible; that City Auditor and Clerk Robinson has acted as a consummate professional. Mayor Martin stated that the entire Commission joins in the sentiments; that thanks are extended for the professionalism demonstrated. Commissioner Palmer stated that City Auditor and Clerk Robinson is thanked; that City Auditor and Clerk Robinson is extremely meticulous and was extremely upset over the issue; that Ms. Atwell was a lady and handled the situation with great dignity; that a civil campaign will be held; that the people will have the opportunity to decide who will sit on the Commission after the election. 2. INTRODUCTION RE: ATTORANEY-CLIENT SESSION IN ACCORDANCE WITH SECTION 286.011 (8), FLORIDA STATUTES (2004), PURSUANT TO A REQUEST BY THE CITY ATTORNEY FOR THE PURPOSE OF MEETING IN A CLOSED SESSION TO DISCUSS STRATEGY RELATED TO LITIGATION EXPENDITURES IN THE MATTER OF BROOKE G. ASBURY VERSUS CITY OF SARASOTA, CASE NO. 2001 CA 005973 NC, CIRCUIT COURT FOR SARASOTA COUNTY (AGENDA ITEM II) CD 5:30 through 5:21 City Attorney Fournier stated that the parties to the litigation are: Plaintiff: Brooke Asbury Defendant: City of Sarasota City Attorney Fournier continued that the Commission was advised of his desire to seek advice concerning the litigated matter at the January 18, 2005, Regular Commission meeting; that the out- of-sunshine, attorney-client session will be confined to discussions concerning settlement negotiations and strategies related to litigation expenditures; that the following individuals will be attending the attorney-client session: Richard F. Martin, Mayor; Mary Anne Servian, Vice Mayor; Fredd "Glossie" Atkins, Commissioner; Danny Bilyeu, Commissioner; Lou Ann R. Palmer, Commissioner; Michael A. McNees, City Manager; Robert M. Fournier, City Attorney, Mark D. Singer, City Attorney's Office, Litigation Counsel, Robert J. Gill, Esq., Special Litigation Counsel, and a Certified Court Reporter. City Attorney Fournier further stated that for the record, the out-of-sunshine, attorney-client session will commence at 5:33 p.m.i that less than one hour is anticipated for the session. The Commission recessed at 5:33 p.m. into an out-of-sunshine, attorney-client session in Room 109, City Hall, and reconvened in the Chambers at 6:06 p.m. 3. ANNOUNCEMENT RE: TERMINATION OF ATTORNEY-CLIENT SESSION IN ACCORDANCE WITH SECTION 286.011 (8), FLORIDA STATUTES (2004) (AGENDA ITEM III) CD 6:06 BOOK 58 Page 29662 01/24/05 5:00 P.M. BOOK 58 Page 29663 01/24/05 5:00 P.M. City Attorney Fournier stated that for the record, the out-of-sunshine, attorney-client session for the matter of Brooke Asbury versus City of Sarasota, Case No. 2001 CA 005973 NC, Circuit Court For Sarasota County, concluded at 6:06 p.m. 4. ACTION RE: : VOTE ON SETTLEMENT IF THE CLOSED SESSION RESULTS IN A NEED FOR FORMAL ACTION BY THE CITY COMMISSION - APPROVED THE SETLEMENT AGREEMENT CONCERNING CASE OF BROOKE ASBURY VERSUS THE CITY OF SARASOTA, CASE NO. 2001 CA 005973 NC, CIRCUIT COURT FOR SARASOTA COUNTY (AGENDA ITEM IV) CD 6:07 through 6:09 Mark Singer, Attorney, City Attorney's Office came before the Commission and stated that the matter concerns a proposed settlement in the case of Brooke Asbury versus the City of Sarasota; that the case involves the issue of eminent domain and has been divided into two parts; that a trial was held last year; that the court found the City was liable for the taking of the Siesta Key Fish Market; that a trial for damages is scheduled for the week of January 24, 2005; that a mediation was held the week of January 10, 2005; that a settlement agreement was developed, subject to the approval of the Commission; that the settlement would provide for the City to pay Mr. Asbury $207,500 in full payment of all attorneys' fees and costs and any sums to which the City would have otherwise been obligated; that the finding of liability means the City is liable for the plaintiff's attorneys' fees and costs; that the mediated settlement agreement is subject to the approval of the Commission; that a final judgment which would be entered by stipulation of the parties would provide the City does not admit to liability for any of the claims alleged in the complaint; that the complaint also included a civil rights claim as well as a State and Federal Equal Protection claim; that the City does not believe the finding of liability was correct and believes the decision should be appealed to the Second District Court of Appeal; however, the terms of the settlement agreement are favorable in view of the costs involved; that the settlement agreement will resolve the matter; therefore, the recommendation is for the Commission to approve the mediated settlement agreement. On motion of Commissioner Palmer and second of Vice Mayor Servian, it was moved to approve the Settlement Agreement concerning case of Brooke Asbury versus the City of Sarasota, Case No. 2001 CA 005973 NC, Circuit Court for Sarasota County. Motion carried unanimously (3 to 0): : Atkins, yes; Bilyeu, yes; Martin, yes. 5. CITIZENS' INPUT CONCERNING CITY TOPICS (AGENDA ITEM V) CD 6:09 There was no one signed up to speak. 6. OTHER MATTERS CD 6:09 through 6:11 MAYOR MARTIN: A. stated that March 29 and 30, 2005, is scheduled for the Florida League of Cities 2005 Legislative Action Agenda; that some Commissioners typically attend; that the dates conflict with a Commission Workshop concerning the Evaluation and Appraisal Report (EAR); and asked if the Workshop should be rescheduled or, alternatively, if some Commissioners wish to attend the EAR Workshop while other Commissioners wish to attend the Legislative Action Agenda and review the EAR Workshop in a different format? Commissioner Palmer stated that the Legislative Action Agenda is interesting; that more importantly, the Commissioners should use available time to visit the State Legislators with the ManaSota League of Cities or other times during which sO many people are not in attendance; that speeches are given during the morning session; that elected officials can visit Legislators during the rest of the session; however, seeing the Legislators is difficult as sO many people are in attendance; that the Legislative Action Agenda is an interesting introduction but is at the end of the Legislative Session; that the Lobbying efforts on behalf of the City should be done well in advance of the Legislative Action Agenda. Mayor Martin stated that hearing no objections, the Commission Workshop schedule will remain as is. 7. ADJOURN (AGENDA ITEM VI) CD 6:11 There being no further business, Mayor Martin adjourned the Special meeting of the City Commission of January 24, 2005, at 6:11 p.m. BOOK 58 Page 29664 01/24/05 5:00 P.M. BOOK 58 Page 29665 01724/05 5:00 P.M. Ramslaffrs RICHARD F. MARTIN, MAYOR ATTEST: y E Robenson BILLY EPROBINSON, CITY AUDITOR AND CLERK