Palm Coast considers how to fix City Charter's discrepancy with state law

Palm Coast Observer
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Part of Palm Coast's City Charter is out of line with state law, and the city may amend it. The question, though, is how: The part of the Charter that needs changing is the part of the Charter that deals with how to change the Charter.

The Charter says a resident petition to place a proposed Charter change before the City Council — after which it would automatically go to the ballot if the council doesn't enact it — requires the signatures of 25% of the electorate. State laws says the required percentage for the petition is 10%, and that the proposed change would then go straight to the ballot. Although the state law overrides the local Charter on the issue, the Charter’s text hasn’t been changed.

CITY CHARTER VERSUS STATE LAW

Palm Coast's charter lays out a method of charter amendment that differs from state statute, requiring 25% of the electorate to petition for a proposed change, while the state requires just 10%. Here are the relevant, conflicting sections of the city charter and of state law.

Palm Coast City Charter (Section 11.3, Initiative and Referendum):

"At least 25 percent of the qualified electorate of the city shall have the power to petition the council to propose an ordinance or to require reconsideration of an adopted ordinance, or to propose an amendment to this charter. If the council fails to adopt such ordinance or amendment so proposed, or to repeal such adopted ordinance, without any change in substance, then the council shall place the proposed ordinance or amendment, or the repeal of the adopted ordinance, on the ballot at the next general election."

Florida State Statute (Section 166.031, Charter Amendments):

"The governing body of a municipality may, by ordinance, or the electors of a municipality may, by petition signed by 10 percent of the registered electors as of the last preceding municipal general election, submit to the electors of said municipality a proposed amendment to its charter, which amendment may be to any part or to all of said charter except that part describing the boundaries of such municipality. The governing body of the municipality shall place the proposed amendment contained in the ordinance or petition to a vote of the electors at the next general election held within the municipality or at a special election called for such purpose."

Councilman Steve Nobile — who pushed the council unsuccessfully to undertake a full, citizen committee-led review of the Charter — brought up the issue at the Oct. 27 City Council workshop, saying he received an email and a phone call about it recently.

"We have a conundrum in there, where we have to comply with the state," Nobile said. "Now, what I’m talking about is the 25% signatures. We have to comply with the state, so putting that on the ballot, well, it’s like we can’t vote against it, because — "

"— What would happen if you put it on the ballot and it’s turned down?" Mayor Jon Netts interjected.

"Right. You can't turn it down," Nobile said.

Nobile asked City Attorney Bill Reischmann about possible solutions, such as amending the problematic portion of the Charter through a unanimous City Council vote — a method state law permits when a portion of a local charter is overridden by a judicial precedent.

Reischmann said Palm Coast's situation is different: Its Charter has been overridden by legislative precent, not judicial precent.

Netts said it wouldn't be the first time Palm Coast has fixed a problem with the Charter.

In the city's first few years, he said, it had to deal with a "scrivener's error": The City Charter initially said that if there were two or more candidates for a position, there would be a primary election. It was supposed to say 'three or more,' not 'two or more.' But when the council had just two competing candidates in its first election, it held a primary, staying true to its Charter. The candidate who won the primary won, and there was no general election.

"Cities and counties have home rule as long as the state allows us to have home rule. As soon as they want to pull back the home rule, they are able to do that, and our local laws become null and void. And that’s what happened here. This section, in essence, wasn’t amended; it was made null and void because the state preempted it."

—Jim Landon, Palm Coast city manager

That was "not a huge deal, except that we had a small voter turnout," Netts said. But the city ultimately corrected it as a simple scrivener's error. "It seemed to me that there should be some relatively easy way to bring our Charter into consistency," Netts said.

City Manager Jim Landon said perhaps the city could publish a note in the Charter stating that the section in question had been preempted by state statue.

Netts asked about challenging the state.

“Do we have to go go to court and challenge?" he said.

"We’re looking for something that’s a little more pragmatic and practical than that," Reischmann said.

He said he'd take a look at the legal rationale the city used years ago to correct the primary election issue as a scrivener's error, though he wasn't sure that would work in this case.

"Certainly, we don’t want to do anything with our Charter that’s not rock solid," Reischmann said. "But let’s go back and take a look, and see what happened in 2001, 2002."

To view the full City Charter, click here.