HomeMy WebLinkAboutDocumentation_Special Meeting_Tab 01_12/22/2022Agenda Item #1.
Special Council Meeting
STAFF MEMO
Meeting: Special Council Meeting -Dec 22 2022
Staff Contact: Keith Davis, Village Attorney Department: Legal
wol"o
Consider Options to Fill Council Seat 5 Vacancy
See Legal's Amended Memo attached.
This document and any attachments may be reproduced upon request in an alternative format by
completing our Accessibility Feedback Form, sending an e-mail to the Village Clerk or calling 561-768-
0443.
BUDGET MORMATION:
PROJECT NAME: Special BUDGET: 0
Election Seat 5
Proposed:
Around $23,000
PROJECTED TOTAL: Around $23,000
ENCUMBERED: 0
Projected Remaining:
0
ATTACHMENTS7
Teguesta Council Member Vacancy Options to Fill Same 2022 REVISED
Page 3 of 11
Agenda Item #1.
DAMS &
ASSOCiArES,P.A.
Keith W. Davis, Esq.
Florida Bar Board Certified Attorney in
City, County and Local Government Law
Email: keith@davislawteam.com
MEMORANDUM
TO: Village Manager Allen for Distribution to Village Council
FROM: Village Attorney Davis
DATE: December 15, 2022 REVISED DECEMBER 21, 2022
RE: Resignation of Council Member Johnson, Council Seat Vacancy and
Options to Fill Same
I have been provided with correspondence dated December 15, 2022 indicating the
immediate resignation of Aaron Johnson from Council Seat 5. You have asked for a
Memorandum explaining the options and associated procedures for filling said vacancy.
have consulted with the Village Clerk, and I have reviewed the applicable provisions of
the Village's Charter and Elections Code. I now offer the following opinion:
Having had the opportunity to conduct additional analysis and research into this
issue, and having had the opportunity to discuss the matter further with my legal
team, the original December 15, 2022 opinion is replaced with this revised
December 21, 2022 opinion and recommendation:
Council Seat 5 is presently almost halfway through its current two (2) year term which
will expire in March of 2024.
The CURRENT Village Charter states in pertinent part that "in the event of a
vacancy on the Village Council because of ... resignation ..., and the period of
vacancy is to be more than six (6) months, the Village Council shall provide for a
special election to fill the vacancy until the expiration of the term." Since there are
presently more than six (6) months left in the current term for Council Seat 5, the
CURRENT Village Charter requires the Village Council to call for a special election to fill
the vacancy in Council Seat 5 until the expiration of the term."' The winner of such a
special election would serve the remaining unexpired term of Council Seat 5 and then
that seat would return to its regular election rotation requiring qualifying in late 2023 for
1 Sec. 2.05 A., Village Charter.
701 Northpoint Parkway, Suite 205, West Palm Beach, FL 33407 I p 561-586-7116 I f 561-586-9611
www.davislawteam.com
♦ LEADING ATTORNEYS IN LOCAL GOVERNMENT LAW AND ETHICS
Page 4 of 11
Agenda Item #1.
December 2022
Village Council vacancy; Options to fill same REVISED
Page No. 2
the March 2024 municipal election. There is no timeframe specified in the Village
Charter within which the special election must be provided.
The Palm Beach County Supervisor of Elections Office will be undergoing a facility
relocation in 2023 which, according to the Supervisor of Elections (SOE) herself, will
severely limit her office's ability to facilitate any special elections. However, the Village
Clerk has been advised by the SOE that pending verification from SOE operational
staff, a special election may be available on either April 4, 2023 or April 11, 2023, with a
qualifying period sometime during the month of January 2023. The SOE has further
advised that it will not be possible to accommodate any vote by mail opportunities for
this special election, and instead this would be an "in -person only" election.
Neither the Village Charter nor the Village Code address vote by mail opportunities one
way or the other. One or two opportunities for in -person early voting could be made
available; however, the Village has opted out of all early voting by code.2 Thus, in order
to accommodate early voting for any such special election, the Village Council would
need to amend Village Code to provide for same. There will be significant cost to the
Village3 to hold any such special election.
As further explained in the next paragraph, by holding the special election in early
April 2023, the Village Council would "bridge the gap" between mid -April and early
October 2023 during which time the Village Council would be otherwise limited to four
(4) members. No matter what course of conduct is chosen, the Village Council will be
a four member Council from now until at least April 2023, and possibly until as late as
October 2023.
The CURRENT Village Charter goes on to state that "if the period of vacancy is to be for
a period of less than six months but more than three months, then the Village Council
may appoint a substitute to fill the vacancy until the expiration of the term."4 Under this
provision of the Village Charter, the Village Council is permitted, but not required, to
appoint someone in October 2023 to serve the remaining unexpired term of Council
Seat 5 and then that seat would again return to its regular election rotation requiring
qualifying in late 2023 for the March 2024 municipal election.
As you are aware, there are a series of proposed Charter amendments on the March
2023 ballot. One of the amendments would eliminate the special election requirement
explained above, and substitute it with the ability of the Village Council to immediately
appoint a substitute to fill the Council Seat vacancy until the next general election. The
next general election will occur in March 2024 at which time the appointed person (as
well as any challengers) would have to qualify5 and formally run for the seat.
2 Village Code Sec. 2-231.
3 The cost would be in the tens of thousands of dollars. The Village Clerk may be able to provide a more
specific number.
4 Sec. 2.05 A., Village Charter.
5 Qualifying occurs in late November / early December 2023.
701 Northpoint Parkway, Suite 205, West Palm Beach, FL 33407 I p 561-586-7116 I f 561-586-9611
www.davislawteam.com
♦ LEADING ATTORNEYS IN LOCAL GOVERNMENT LAW AND ETHICS
Page 5 of 11
Agenda Item #1.
December 2022
Village Council vacancy; Options to fill same REVISED
Page No. 3
IF the voters approve the above explained Charter amendment in March 2023, then it is
immediately effective and the requirement to provide for a special election to fill a
vacancy on the Village Council which is longer than six (6) months is repealed
and the Village Council is granted the authority to make an appointment to fill the
vacancy until the next general election held in the Village. However, because the
event of the vacancy occurred under the CURRENT Charter containing the
special election provision, and because there is no timeframe specified in the
Charter within which the Village Council is required to provide for the special
election, conducting the special election in April 2023 following the passage of
the Charter amendment discussed above would, in my opinion be a defensible
course of conduct.
Alternatively, and again because there is no timeframe specified in the Charter
within which the special election must be provided, if the Village Council chose to
delay providing for a special election pending the decision of the Village electors
on the proposed charter amendment in March 2023, and if the proposed Charter
amendment is passed by the Village electors, then the Village Council would have
the authority to make an appointment to fill the vacancy until the March 2024
election. This, in my opinion, would affirmatively implement the will of the
electorate and be in conformance with the Village Charter, and therefore is also a
defensible course of conduct.
As you can see, this is an extremely unusual situation and there is no legal authority
that provides a clear path forward. The options as I see them are as follows:
1. Accept the SOE offer now, and provide for a special election in April 2023,
incurring costs for same. To the extent possible, an agreement with the
SOE should be negotiated that limits the Village's financial exposure in the
event that the actual election does not have to be conducted (e.g. only one
person qualifies; or the Village Council ultimately makes an appointment).6
a. If the Charter amendment fails, a special election is held and the vacancy
is filled beginning in April and continuing until the new incumbent or some
other challenger qualifies and is elected in March 2024.
b. If the Charter amendment passes, the special election provision may
nevertheless be executed in this case since the event of the vacancy
occurred under the CURRENT Charter, prior to the Charter
amendments being considered by the Village electors.
2. Decline the SOE offer and do not, at this time, provide for a special election in
April 2023 and thereby avoid incurring any cost associated therewith.
6 If the Village Council wants early voting to be available, it will need to adopt an ordinance that allows
early voting for municipal elections. At the very latest, second reading of any such ordinance would need
to occur in early March 2023.
701 Northpoint Parkway, Suite 205, West Palm Beach, FL 33407 I p 561-586-7116 I f 561-586-9611
www.davislawteam.com
♦ LEADING ATTORNEYS IN LOCAL GOVERNMENT LAW AND ETHICS
Page 6 of 11
Agenda Item #1.
December 2022
Village Council vacancy; Options to fill same REVISED
Page No. 4
a. If the Charter amendment fails, the Village Council will continue to
operate under the CURRENT Charter provision that requires a
special election be provided to fill the vacancy that is greater than
six (6) months in length; however, the ability of the SOE to actually
conduct a timely special election becomes questionable. As such,
the Village Council would operate as a four member Council until
October 2023 at which time the current Village Charter allows an
appointment to be made to fill the remaining unexpired term.
b. If the Charter amendment passes in March 2023, the Village Council can
thereafter immediately appoint someone to fill the vacancy until the next
general election to be held in the Village.
Under these unique and difficult circumstances, it is my opinion that any of the above
options would be legally defensible.
My recommendation is to accept the SOE offer to hold a special election on April
4 (or 11) and attempt to negotiate a cost agreement that mitigates the Village's
financial exposure in the event that the election actually does not have to occur
(due to only one person qualifying, for example). Regardless of the outcome of
the March 2023 referendum that would amend the Village Charter if passed, the
special election would be held since the event of vacancy occurred under the
CURRENT Charter. The winner of the special election would serve out the
remainder of the current term for Council Seat 5 which will reset with a new term
in March 2024.
701 Northpoint Parkway, Suite 205, West Palm Beach, FL 33407 I p 561-586-7116 I f 561-586-9611
www.davislawteam.com
♦ LEADING ATTORNEYS IN LOCAL GOVERNMENT LAW AND ETHICS
Page 7 of 11