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In a surprise move Monday night, the Marco Island City Council requested city staff to draft an ordinance to move the March 2008 council election to the November presidential election date.

The action angered several citizens in the audience, including Joe Batte and Roger Hall who recently announced their candidacy for council based on a January or March election date.

“Trying to extend your term by ordinance almost seems like a tremendous miscarriage of justice,” Batte said after the meeting. “They know how concerned the public is about their past actions. They just want to nail down their own program no matter what the people want. Only the electorate can extend your term.”

Councilor Glenn Tucker asked City Attorney Rich Yovanovich whether the council could change the date to November. Yovanovich said it could by ordinance, referring to two opinions given by former Florida Attorney General Charlie Crist on the issue (see sidebar).

After discussion, the council voted 4-2 to recommend that the city staff draft an ordinance which would extend the terms of Tucker, chairman Mike Minozzi and councilors William Trotter and Terri DiSciullo. All four councilors voted to draft the ordinance. Council members Chuck Kiester and Rob Popoff voted against it. Councilor Ted Forcht was absent from the meeting.

Minozzi and Tucker cannot run in 2008 because of term limits. DiSciullo’s and Trotter’s seats are also up for election. Both said they haven’t decided whether to run again.

The council election is usually held the second Tuesday in March, the day of Florida’s Presidential Preference Primary. This year, however, the state Legislature approved moving the primary up to Jan. 29.

Marco Island City Manager Bill Moss said the city’s cost for the mail ballot election in March would be $25,000 to $30,000. Gary Beauchamp, chief deputy supervisor for the Collier County Supervisor of Elections, said his office recommended the city change the election date to Jan. 29 to save the cost.

The ordinance will likely be ready for first reading at the Aug. 6 council meeting. By holding the council elections during the November presidential election, the councilors’ terms would change from the current two years to four years.

Public service tax tabled

The City Council voted 5-1 to table the first vote on a public service tax after several citizens vehemently voiced their opposition to it. The ordinance would raise rates on electricity, metered natural gas, liquefied petroleum gas and manufactured gas by 7 percent. Councilor Glenn Tucker voted against the postponement.

The council decided to discuss the proposed tax during the 2008 budget meeting on August 20.

The state Legislature called a special session last week to discuss property tax reform. The council and city staff began looking at the public service tax as an optional revenue source during the City Council five-year Capital Improvement Program meeting May 21.

Florida statutes allow municipalities to levy taxes on utilities. The tax cannot exceed 10 percent of the payments received by the seller of the service from the purchaser for the purchase price.

The effective rate on electric service would be 4.5 percent, according to Marco Island City Manager Bill Moss; because the 7-percent rate increase only applies to approximately 65 percent of a Lee County Electric Cooperative utility bill. LCEC provides electrical service to the island.

Legislators passed a tax reform package Thursday that would reduce local government revenue from 3 to 9 percent. The package on paper totals $31.6 billion in tax relief over the next five years.

As part of the tax reform, the Legislature also passed an amendment that would let homeowners replace the Save Our Homes tax protection with a homestead break that would reduce the taxes on a $500,000 home up to $195,000. If the voters approve the amendment by a 60-percent vote, homeowners could elect the homestead break or stay with the Save Our Homes program.

By making the homestead choice optional, Legislators estimated the $31.6 billion tax reduction would be closer to $24 billion.

Moss said the tax reform would likely cut the city’s property tax revenue from $14.3 million to approximately $13.1 million, or 9 percent, based on property values for fiscal year 2007. Moss added a 7-percent public service tax would produce approximately $1.2 million in revenue.

He recommended the tax be implemented on Jan. 1, 2008. Any public service tax must begin on the first day of a fiscal quarter.

365 days to hookup

During Monday’s meeting, the council approved an ordinance that allows property owners with septic tank systems to connect to the city’s expanded wastewater utility system within 365 days after being notified that the service is available. The Marco Island City Code of Ordinances had stated property owners must connect within 90 days of being notified.

The vote was 5-1. DiSciullo voted against the ordinance.

The amendment to the city code also states that monthly billing for water, wastewater and reclaimed water service will begin either when the water meter is installed, the property is connected to the wastewater system, or 90 days after notification that the wastewater or reclaimed water service is available.

Payments to the utility company must be made concurrently, according to the amendment. Moss said property owners would begin seeing the monthly wastewater base charge on their July utility bills. If any portion of the service bill is not paid, the city could discontinue the service.

Once a property is connected to the new system, any septic tanks, cesspools or other private wastewater disposal systems must be cleaned of sludge and filled with materials.

Florida Attorney General Advisory Legal Opinion

Number: AGO 2003-52, Date: November 3, 2003

Subject: Municipal charter, change in election date

“Section 166.031, Florida Statutes, sets forth the procedures to be observed in amending municipal charters, including a requirement that a proposed amendment shall be subject to approval by referendum of the voters. For charters adopted prior to July 1, 1973, and not subsequently readopted, section 166.021, Florida Statutes, repealed or changed into ordinances many of the limitations contained in such charters. Subsection (4) of the statute, however, provided that nothing in Chapter 166, Florida Statutes, the Municipal Home Rule Powers Act, was to be construed as permitting any changes in a special law or municipal charter that affect certain subject matters set forth therein, including “the terms of elected officers,” without referendum approval as provided in section 166.031, Florida Statutes.

Thus, for charters adopted after July 1, 1973, and for charter provisions relating to the terms of elected officers adopted prior to that date and not subsequently readopted, any amendment of those provisions would be subject to the procedures in section 166.031, Florida Statutes. Accordingly, this office concluded in Attorney General Opinion 94-31 that the city commission of the City of Tallahassee could not amend its charter by ordinance to provide for a change in the date on which municipal elections will occur and extend the terms of the sitting officers affected by the change.

During the 1995 legislative session, however, legislation was introduced to amend section 166.021, Florida Statutes. Section 1 of Chapter 95-178, Laws of Florida, amended section 166.021(4) to read in pertinent part:

“However, nothing in this act shall be construed to permit any changes in a special law or municipal charter which affect . . . the terms of elected officers and the manner of their election except for the selection of election dates and qualifying periods for candidates and for changes in terms of office necessitated by such changes in election dates, . . . without approval by referendum of the electors as provided in s. 166.031. . . .” (e.s.)

In addition, Chapter 95-178, supra, created section 100.3605, Florida Statutes, relating to the conduct of municipal elections.[1] Subsection (2) of section 100.3605 provides:

“The governing body of a municipality may, by ordinance, change the dates for qualifying and for the election of members of the governing body of the municipality and provide for the orderly transition of office resulting from such date changes.”[2]

Accordingly, this office in Attorney General Opinion 00-61 concluded that a city may amend its city charter by ordinance to move the dates of city elections from April to November to coincide with federal, state, and county elections, and to extend the terms of the sitting commissioners to November.[3]

Thus, as noted above, prior to the 1995 amendment to section 166.021(4), Florida Statutes, and the creation of section 100.3065, Florida Statutes, a change in the charter prescribing the qualifying and election dates for municipal officers, and the resulting change in the term of office for sitting officers, required amendment according to the provisions of section 166.031, Florida Statutes, regardless of when such provisions were adopted. The legislative history of the 1995 legislation amending section 166.021(4) and creating section 100.3065, however, indicates an intent that municipalities are authorized to amend their charters, whether those charters were adopted before or after July 1, 1973, to change the election dates and qualifying periods for candidates, including any changes in terms of office necessitated by such amendment, without a referendum.

Accordingly, I am of the opinion that the City of Lauderdale Lakes, pursuant to sections 166.021(4) and 100.3605, Florida Statutes, may amend its city charter by ordinance to move the dates of city elections from March to November to coincide with federal, state, and county elections, and to extend the terms of the sitting commissioners to November, when the existing charter was last amended in January 1998.”

— Charlie Crist, Attorney General