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Commissioner Wolfson memorandum 3/17/08 m MIAMIBEACH OFFICE OF THE MAYOR AND COMMISSION TO: Mayor and Commission FROM: Jonah Wolfson, Commissioner DATE: March 17, 2008 O~U MEMORANDUM SUBJECT• City Commission Vacancy According to the City Charter -< `° a ~- r-, -- ~~~ a~ ~,; ~~~ ~ . ~, _,~ ~ _,., .. N The debate during this month's Commission meeting and the subsequent Herald story and statements made by certain individuals in that story, has prompted me to clarify the issue at hand and set the record straight. Pursuant to City of Miami Beach Charter, Article II, Sec. 2.07, we are compelled to fill Commissioner Steinberg's seat by appointment unless we "fail or refuse to fill such vacancy...". As I read the recent Herald story and statements made by some people, I was disappointed that there was no mention of this fundamental point of local law. There is nothing "un- American" in following our City's Charter, and it is shameful for someone to make such a false characterization. Below is the relevant section of the City of Miami Beach Charter in its entirety: Article II, Sec. 2.07. Vacancies in city commission. Any vacancy occurring in the City Commission shall be filled b y the vote of the majority of the remaining members of said City Commission wifh the appointee serving the remainder of the unexpired term until the nexf succeeding general City election and with any further remainder of said unexpired term to be filled by a Commissioner elected at said general election; if fhe remaining members of the City Commission shall fail or refuse to fill such vacancy within 30 days after it occurs and if no general City election will be held within 90 days after fhe expiration of said 30 days, then a special election shall be called and held to elect a Commissioner to fill such vacancy for the remainder of the unexpired term. The language above is plain and clear. For the reasons set out below, I believe that we, as a Commission, should fulfill our legal duty per the Charter, and do so by upholding the nominee provided by Mayor Bower, former Mayor David Dermer. 1. Due to term limits at the state level, our city's electoral process has been affected by creating premature vacancies in the Commission. This has resulted in our city undergoing a city election every year since 2005. I believe that Charter Section 2.07 was created to prevent this very problem form occurring and reoccurring. l' .-' Orel C,_rnn~~'~E~ci 4~~ i:»•'. Y~iflr, t: x~'r-'In`7n1 ~„~i~C scr u ~ <~rn~ ~C Faly,lu ~~ii tt-hC> )ivi9. ~Vt~i.4, ~Jn ~.~~~f~i in ,~t~~ t-ihr rn' h~~p.~ ~ i_~ ~.. _ cr>i•~~'w i'ih; ~? _~ ;"} "i'1 C ~'] ...`> 2. Not following our legal responsibility would result in our city's electorate being exposed to a municipal election every year from 2005 through 2009, an absurd situation that serves no good public purpose. 3. 2008 is a Presidential Election year. Holding a Special Election as occurred in 2006 is not in the public's best local interest. Most voters will be focused on the Presidential candidates and national issues. The important local issues to determine who will be the new commissioner will certainly be drowned out. In addition, the financial burdens on candidates during this type of Presidential Election are excessive. 4. We should not let the individual aspirations of candidates that want to run for the City Commission this year dictate our actions. Likewise, political consultants will have to suffer one less contest and lack of business this year and wait for city elections to take place as they should, in 2009. 5. Fulfilling our legal duty under the Charter does not change the fact that the voters of Miami Beach will have three Commission seats/groups up for election in 2009. The difference will be that only one will have an incumbent and two will be open seats (as already designed by the city's charter and municipal term limit provision). 6. Last, but not least, the nomination of former Mayor Dermer is an excellent decision by Mayor Bower, and one that we should all 'embrace and support. Mr. Dermer will hold the seat as a caretaker, allowing candidates to run for this seat in 2009 as an open seat. As Commissioners, we need to carefully read the City's Charter and Ordinances on our own. Doing so reveals some important information as we proceed with our legal duty on this matter: First, as set forth above, we cannot call for an election under the Charter unless we "fail or refuse to fill such vacancy within 30 days after it occurs". Under Florida Statute Section 99.012(3)(f)2, the vacancy occurs `upon the effective date of the resignation submitted by the official in his or her letter of resignation." Since Commissioner Steinberg has filed to run for State Representative yet failed to file a resignation setting forth the effective date, we do not know when the vacancy will "occur". Thus, in our case, the vacancy has not "occurred" and the 30 day period of appointment has not come and gone. Frighteningly, if we had called for an election at the last meeting, we would have been in violation of the Charter. This being the case, if, in 2006, State Representative Luis Garcia's effective date of resignation was the date of the general election, the manner in which Michael Gongora was elected violated the Charter. If we are forced by Commissioner Steinberg to wait until November 4, 2008 to begin the appointment process under Article II, Section 2.07, we will have 30 days from November 4, 2008 to do so. If, for whatever reason, we cannot select a Commissioner within that 30 day window, then we will have to call for a special election paid for by City of Miami Beach taxpayers on a date that allows candidates an opportunity to qualify by petition or pay a qualifying fee, gives them a chance to raise money, and lets a candidate get his or her message out. In fact, we could go months with only 6 commissioners and a city government potentially deadlocked at a 3 to 3 vote on every important issue, incapable of adequately representing the people that elected it. This is especially disturbing since we know that Commissioner Steinberg will need to resign and set forth an effective date. But why create a future situation of poor representation when we know now that there will be a vacancy? \:~ a'c r_- r u ~~fhc~i c ,.,~>, ~.,rii) 'ti,f.=~leiru f,u~(~< s.n 2~<_; ~~rn~ ;, I~; , hi n f v<`,i~ i .vu~~, ~. ~ ~; ,,~ rr cur ~~~i,~ .~.~, ~u, rc i li~~S;or . ~. ,inir_n„;. ...~_. To simplify this situation, pursuant to Florida Statute 99.012 (3)(d)1, Commissioner Steinberg should make his resignation effective well in advance of November4, 2008. He should do so in a manner calculated to give us an opportunity to comply with Article II, Section 2.07 and make an appointment within 30 days or elect a Commissioner in his seat on the date of the Presidential election so we do not cost the taxpayer's the significant expense of a Special Election in December or January. Finally, under Article II, Section 2.07, the appointment decision is made by "the remaining members". Thus, Commissioner Steinberg clearly has no say or vote on this matter. Since he will be resigning and it is an irrevocable resignation, Commissioner Steinberg cannot be a "remaining member" and must not vote on this appointment. In fact, because his vacancy must occur prior to there even being a decision on whether or not we can have an election, he is practically and legally prevented from partaking in the discussion of whether or not there will be a costly Special Election. For all of these reasons, I believe we should uphold and support the will of the Commission, as expressed in last week's Commission meeting, to fill the seat being vacated by Commissioner Steinberg with former Mayor David Dermer. Doing so will fulfill our legal obligation and offer our residents adecision-maker whose qualifications and esteemed record of public service and ethics cannot be questioned. CC: Jorge M. Gonzalez, City Manager Jose Smith, City Attorney Robert Parcher, City Clerk ~ ~ « a urr; ~~~ ~~ur ~ril~rnr~, l+r~ ~~ r~ .`,r~~u~ ~.~ .R:n:i;b b'b'<. cnE~ z: r rniile%? << (',un•ic$r ~ .x' ,Uric t ~x,C~ c s . ~^~ _: ~.;;.1 n~<:~, 'u au w ~<. . , ~~~uil., F _ 'F" ~+~.~_.