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Home My WebLink About2003 01 13 Public Hearings A Second Reading - Ordinance 2002-33 Appointment Guidlines COMMISSION AGENDA ITEM A Consent Informational Public Hearing X Regular January 13. 2003 Meeting ~. /J(;0 Yo/'} Mgr. / Att. / Dept. REQUEST: City Manager requesting the City Commission to conduct a public hearing on Second and Final Reading on Ordinance No. 2002-33 amending Section 2-42 of the City Code, providing for the appointment of persons with prior felony convictions subsequent to the restoration ottheir civil rights. PURPOSE: This agenda item is needed to amend Section 2-42 of the City Code making it consistent with State and Federal law permitting persons with felony convictions the right to participate in governmental affairs after restoration of their civil rights, such as running for political office and voting in elections. APPLICABLE LA W AND PUBLIC POLICY: 1. Section 2-42(5) of the City Code prohibits anyone with a felony conviction from serving on a city board even if their civil rights have been fully restored. 2. At the direction of the City Commission at First Reading, the City Attorney has conducted additional legal research and analysis on the issue offeIony convictions and the removal of civil rights and reports as follows: Page 1 of 3 a. Section 944.292(1), Florida Statutes, provides, "upon conviction of a felony as defined in s. 10, Art. X of the Florida Constitution, the civil rights of the person convicted shall be suspended in Florida until such rights are restored by a full pardon, conditional pardon, or restoration of civil rights granted pursuant to s. 8, Art. IV of the State Constitution. b. In application, it is a judgment of conviction rather than the means by which an adjudication of guilt is obtained that triggers the suspension of an individual's civil rights. There is, therefore, no distinction between being formally adjudicated of a felony crime as a result of the entry of a plea of not guilty, nolo contendere, or guilty for purposes of suspending an individual's civil rights. c. As a matter of interest, the Florida Attorney General has opined that a Supervisor of Elections cannot remove the names of convicted felons from voter registration books until the judgment of conviction is affirmed by an appellate court or the time period to take an initial appeal has expired. AGO 077-42. Thus, the automatic suspension ofan individual's civil rights does not become effective until a final judgment of conviction occurs. d. Once suspended, Section 940.05, Florida Statutes establishes the criteria to allow for the restoration ofan individual's civil rights. That section provides, "any person who has been convicted of a felony may be entitled to the restoration of all the rights of citizenship enjoyed by him or her prior to conviction if the person has: (1) Received a full pardon from the board of pardons; (2) served the maximum term of the sentence imposed upon him or her; or (3) been granted his or her final release by the Parole Commission. (bold emphasis added). e. Section 8(a), Article IV of the Florida Constitution grants the Governor the power to issue executive orders to restore an individual's civil rights except for treason and impeachment cases, among other things. In furtherance of this executive power, Rule 4(I)(G) ofthe Rules of Executive Clemency provide that the Governor, with the approval of at least three members of the Cabinet, has the unfettered discretion to grant, at any time, for any reason, the restoration of civil rights enjoyed by an individual before a felony conviction, except the right to own, possess, or use firearms. f. The Office of Executive Clemency has an extensive application, interview, investigative, and hearing process for any person requesting the restoration of civil rights. g. Although not related to appointments to city boards, it is worth noting that Section 112.011(b), Florida Statutes, provides, with exceptions, that a person who has had their civil rights restored shall not be disqualified to practice, perform or engage in any occupation, trade, vocation, profession or business for which a license, permit or certificate is required to be used by the state, any ofits agencies or political subdivisions, or any municipality solely because of a prior conviction for acnme. FUNDING: Not applicable. Page 2 of 3 RECOMMENDA TIONS: It is recommended that the Commission approve second reading of Ordinance No. 2002-33 amending Section 2-42 ofthe City Code permitting membership on boards and committees by persons with felony convictions who have had their civil rights restored consistent with the principles found in other state and federal laws. ATTACHMENTS: Ordinance No. 2002-33 COMMISSION ACTION: The City Commission approved First Reading of Ordinance No. 2002- 33 at the December 9,2002 Commission Meeting. Page 3 of 3 ORDINANCE NO. 2002-33 AN ORDINANCE OF 'I HE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, FLORIDA, RELATING TO THE REQUIREMENTS OF BOARD AND COMMITTEE MEMBERS; PROVIDING FOR THE AMENDMENT OF SECTION 2-42 TO CLARIFY THE REQUIREMENTS OF BOARD AND COMMITTEE MEMBERS; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; PROVIDING FOR INCORPORATION INTO THE CODE; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission is granted the authority, under ~ 2(b), Art. VIII of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, the City Commission desires to amend Section 2-42 of the City Code to clarify the requirements of board and committee members; and WHEREAS, the City Commission of the City of Winter Springs, Florida, hereby finds this ordinance to be in the best interests of the public health, safety, and welfare ofthe citizens of Winter Springs. NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS HEREBY ORDAINS, AS FOLLOWS: Section 1. Recitals. The foregoing recitals are true and correct and are fully incorporated herein by this reference. Section 2. Chapter 2 Code Amendment. The City of Winter Springs Chapter 2 is hereby amended as follows: (underlined type indicates additions and str1kcout type indicates deletions, while asterisks (* * *) indicate a deletion from the Ordinance of text existing in Chapter 2. It is intended that the text in Chapter 2 denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance). City of Winter Springs Ordinance No. 2002-33 Page I of 3 Chapter 2 - Administration * * * Sec. 2-42. Appointments of boards and committees. * * * (c) Requirements of board and committee members. Any person nominated, elected or appointed to serve on a board or committee of the city shall satisfY the following requirements, except as otherwise provided by state or federal law: (1 ) Complete a board or committee application as prescribed by the city commission; (2) Consent to a standard criminal background check; (3) Be duly registered to vote in Seminole County; (4) Be a resident as defined in this section; and (5) Has Have never been convicted or found guilty, regardless of adjudication, of a felony in any jurisdiction unless their civil rights have been restored.;-a Any plea of nolo contendere shall be considered a conviction for purposes of this paragraph. Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent ordinances and resolutions adopted by the City Commission, or parts of prior ordinances and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. Section 4. Incorporation Into Code. This ordinance shall be incorporated into the Winter Springs City Code and any section or paragraph number or letter and any heading may be changed or modified as necessary to effectuate the foregoing. Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or provision of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this ordinance. City of Winter Springs Ordinance No. 2002-33 Page 2 of 3 Section 6. Effective Date. This Ordinance shall become effective immediately and shall apply retroactively upon adoption by the City Commission of the City of Winter Springs, Florida, and as provided by City Charter. ADO PTED by the City Commission of the City of Winter Springs, Florida, in a regular meeting assembled on the _ day of , 2003. JOHN F. BUSH, Mayor ATTEST: ANDREA LORENZO-LUACES, City Clerk Approved as to legal form and sufficiency for the City of Winter Springs only: ANTHONY A. GARGANESE, City Attorney First Reading: Second Reading: Effective Date: A:\BoardAmend\BoardAmend. wpd City of Winter Springs Ordinance No. 2002-33 Page 3 of 3