HomeMy WebLinkAboutDocumentation_Workshop_Tab 04_8/3/2020Agenda Item #4.
Workshop
STAFF
MEMO
Meeting: Workshop - Aug 03 2020
Staff Contact: Keith Davis, Village Attorney
��
Department: Manager
Discussion of Charter Amendments and Process to Implement Term Limits; Terms; and Districting.
J
The attached Memorandum provides information and discussion points on the above referenced
topics, as mentioned during the"Any Other Matters" portion of the July 9, 2020 Village Council
meeting.
Teauesta - Term Limits Districts Memo KWD Final
Page 17 of 55
Agenda Item N6.
DAVIS &
ASHTON, P.A.
Keith W. Davis, Esq.
Florida Bar Board Certified Attorney
City County and Local Government Law
Email: keith@davisashtonlaw.com
MEMORANDUM
TO: Mayor and Council
FROM: Keith Davis, Esq.
DATE: July 24, 2020
RE: Village Council Term Limits and Districting
To follow up comments made during the "Any Other Matters" portion of the July 9, 2020 Village
Council meeting, this Memorandum identifies issues and is meant to foster discussion surrounding a
Charter amendment to implement both term limits and districting for Village Council seats.
Current Village Charter
The relevant provisions of the Village Charter which will require amendments to implement the
above referenced changes are:
Section 2.01. - Selection, Term and Compensation.
• Currently provides that the Village Council consists of five (5) members, or "seats," which
are all elected at large. Councilmember seats 1, 3 and 5 are elected in the even years, and
councilmember seats 2 and 4 are elected in the odd years.
• Also provides that the term of office for each councilmember is two (2) years.
• Also includes provisions for election dates, vote counting, and councilmember
compensation.
Section 2.02. - Qualifications and Disqualifications.
• Currently states that any Village councilmember must be a registered voter and resident of
the Village in order to hold office.
• Also provides qualification requirements and procedures for any candidate seeking election
as a Councilmember.
Tnrm T ,imitc
The issue of term limits can capture questions about the number of consecutive terms any person
can serve; the TOTAL number of terms (consecutive or not) any person can ever serve; and also the
number of years a single term will last.
701 Northpoint Parkway, Suite 205, West Palm Beach, FL 33407 1 p 561-586-7116 1 f 561-586-9611
www.davisashtonlaw.com
♦ LEADING ATTORNEYS IN LOCAL GOVERNMENT LAW AND ETHICS
Page 18 of 55
AgendT Item #4.
uty 30, 2020
Term limits and districting
• Note that the majority of term limit language only limits the number of consecutive terms
allowed. Therefore, even with term limits in place, if a Councilmember is "term -limited
out" they can theoretically sit out a term and then qualify anew for a new set of consecutive
terms:
Example Lan ug_ag_e:
"No person may appear on the ballot for reelection to the office of [Councilmember],
if, by the end of the current term in office, the person will have served, or but for
resignation would have served, as a [Councilmember] for [enter # of years/terms]."
(Palm Beach Co. Charter, Sec. 2.2)
OR - "No person who has been elected to the office of [Councilmember] for [enter #
of years/terms] shall be qualified for nomination or election to that office for any
successive terms" (Ft. Lauderdale Charter, Sec. 3.02)
• However, there are also jurisdictions which affirmatively cap the total number of terms a
person can ever serve:
Example Language:
"No person elected for [enter # of terms/years] as a Councilmember shall be eligible
for election as a Councilmember thereafter." (Jacksonville Charter, Sec. 5.041)
Term Limits Applied to Incumbents
Imposition of term limits should be prospective only and should not impact or be applied to
"midterm" incumbents. If the Village Charter were in fact amended in March 2021 to adopt and
impose term limits on Councilmembers, those Councilmembers beginning NEW terms in April
2021 would at that time begin counting their service toward the term limit. However, those
Councilmembers at the "midterm" point of their current term would not be bound to the term limit
until and if they were re-elected in 2022.
Example Language:
"This amendment shall take effect on the date it is approved by the electorate, but no
service in a term of office which commenced prior to the effective date of this charter
amendment will be credited against the [enter # of years/terms] limitation." (Palm
Beach Co. Charter, Sec. 2.2)
OR - "[Councilmembers] currently serving a term prior to the effective date of this
charter amendment shall not be considered in applying the term limitations of this
section." (Broward Co. Charter, Sec. 2.02)
OR — "A council term that has begun but not ended prior to the effective date of this
charter amendment shall not be considered a term for the purposes of this section."
(Jacksonville Charter, Sec. 5.041)
Length of Term
Although not specifically raised during the "Any Other Matters" discussion which prompted this
Memorandum, it would also be possible to change the length of term from two (2) to three (3)
years. Implementation of this change would likewise be on a prospective basis only, for future
elections. Both midterm Councilmembers AND Councilmembers beginning new terms would all
continue to serve current two (2) year terms until that seat's next election cycle after the Charter
amendment was adopted. In a three (3) year term cycle, there will be occasional but regular years
that the Village would have no seats up for election.
Councilmember Districts
This is a very complex topic. It requires thorough discussion and analysis on the appropriate
number of districts to create and the number of seats to assign to each district. Issues of
2 Page 19 of 55
AgendT Item #4.
my 30, 2020
Term limits and districting
apportionment and fairness in representation of the Village's electorate must regularly be reviewed
to assure no skewing either at inception or over time as population changes and resident hubs shift.
The drawing of district lines cannot be arbitrary and must be based on demonstrable population
facts.
Failing to correctly draw election districts or creating districts with insufficient population data can
expose the Village to a federal civil rights lawsuit pursuant to the "one person, one vote" principle
arising out the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.I
As a general rule, any districting plan with a population variance of over 10% among districts is a
violation of the "one person one vote" principle and is presumptively unconstitutional.2 Therefore,
accurate population figures and data are critical to guiding a Tequesta district apportionment plan
and shielding it from costly federal litigation. Population data can be gathered from recent U.S.
Census data or, when possible, by an independent population survey. Whatever data -gathering
practice is used, the Village will need to continuously ensure that its methodologies are
scientifically valid and that its data gives an accurate representation of the Village's population.
Further, the Village must also ensure that concrete steps are in place to prevent future district
malapportionment due to population shifts or changes .3 Thus, creating a constitutionally -valid
district system will require additional language, either in the Village Charter or by separate
ordinance, that provides for population surveys and reapportionment at specified intervals in the
future.
It is not uncommon, especially in smaller jurisdictions, for voting to remain "at -large" even though
the elected official may be required to reside in their district, meaning that all Village residents
would still be eligible to vote in all races. In a jurisdiction the size of Tequesta, retaining "at -large"
voting helps to protect the Village against the aforementioned constitutional issues.
Applying new districts to currently "at -large" seats is, as with term limits, a prospective process and
it may be that in the implementation stages there will be incumbent Councilmembers that do not
reside in the district to which their seat gets assigned.
Given the foregoing, it is not realistic to contemplate having a districting scheme that is supported
by appropriate factual data on the March 2021 ballot.
Placing Charter Amendments on the Ballot
A threshold inquiry is how to present the proposed Charter amendments to the electorate, in terms
of the number of ballot questions:
First, with multiple ballot questions, some may pass, and others may fail.
Second, Florida law limits the size of each ballot question to a maximum of 75 words4
and the size of each ballot question title to a maximum limit of 15 words.s
I Reynolds v. Simms, 377 U.S. 533 (1964). The "one person, one vote" principle of the Fourteenth Amendment applies
to all state and locally -elected government bodies. Avery v. Midland County, 390 U.S. 474, 490 (1968).
2 Brown v. Thomson, 462 U.S. 835, 943 (1983); Chen v. City of'Houston, 532 U.S. 1035 (2001).
3 Diamond v. Town of Manalapan, Case No. 02-80065-CIV-SEITZ/GARBER (S.D. Fla. 2002).
4 § 101.161(1), Fla. Stat. (2019).
s Id
3 Page 20 of 55
AgendT Item #4.
my 30, 2020
Term limits and districting
Third, the ballot summary must be printed in "clear and unambiguous language" which
describes the measure fairly, accurately, and in a way that does not mislead the voters.6
In terms of process, scheduling and timing requirements must be met in order for the Supervisor of
Elections to be able to have the matter on the ballot.? In order to successfully place any Charter
amendment question on the March 2021 ballot, the Village must have a duly adopted ORDINANCE
containing the exact ballot title and question language to the Supervisor of Elections no later than
December. The ordinance requires two readings, and all of the above matters will require thorough
Village Council discussion in order to create the ordinance.
I Id.; see also Dinerstein, v. Bucher, 287 So. 3d 639, 2020 Fla. App. LEXIS 448 (Fla. 4th DCA 2020).
See § 166.031, Fla. Stat. (2019).
4
Page 21 of 55