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HomeMy WebLinkAbout2012 06 12 - Town of Orchid - Qualifying Packet.pdfAALBROWN, GARGANESE, WEISS & D'AGRESTA, P.A. ®© Attorneys at Law 111 N. Orange Ave., Suite 2000 P.O. sox 2873 Orlando, Florida 32802-2873 Phone (407) 425-9566 Fax (407) 425-9596 June 12, 2012 VIA EMAIL ONLY Deb Branwell Town Manager Town of Orchid 7707-3 US Hwy 1 Vero Beach, FL 32967 Re: Filing Town Council Candidate Qualifying Packages (v2) Dear Deb: Anthony A. Garganese Board coruned city, county & Local Government agarganesc or/aedo/aw.ner This letter follows our discussion last week regarding the Town's practice of requiring candidates for Town Council to obtain and file their qualifying packages in - person with the Town Clerk. You indicated that the Town has maintained a practice of requesting that candidates for Town Council obtain and file their qualifying packages in person with the Town Clerk. You also stated that this practice is intended to assist potential candidates seeking to run for Town Council with understanding qualifying requirements. Particularly, the Town Clerk offers assistance to the candidates by reviewing with them the qualifying package and answering any questions regarding the qualifying requirements for Town Council in order to reduce potential mistakes made by candidates. The Town feels that this practice maintains the integrity of the qualifying process as well. As my office previously indicated to you, many municipalities have similar practices to a varying degree in order to maintain the integrity of the qualifying process and to assist potential candidates running for city council. Thus, the Town's practice is not unusual. In addition, the Town's practice has not previously been an issue to the best of your knowledge. Notwithstanding, you indicated to me that several prospective Town Council candidates have questioned the validity of this practice because they will be out of town during the Town's qualifying period for the next Town Council election. These potential candidates apparently desire to qualify by some means other than in - Ft. Lauderdale (954) 670-1979 • Kissimmee (321) 402-0144 • Cocoa (866) 425-9566 Website: www.orlandolaw.net • Email: fim@orlmdolaw.net D. Branwell 6/12/2012 Page -2 — person. As a result, you have asked for my legal opinion as to whether or not the Town can compel a person to qualify for Town Council by appearing before the Town Clerk in - person in accordance with the Town's past practice. In short, for the reasons expressed below, it is my opinion that the Town can maintain the subject practice, but cannot compel a candidate to appear in -person before the Town Clerk to obtain and file a qualifying package in order to be eligible to run for a seat on the Town Council. First, while this may not be the case, I have presumed based on my conversation with you that if a potential candidate does not comply with the Town's in -person qualifying practice, the Town would not provide or accept that candidate's qualifying package. Therefore, by the Town's actions, the Town would be declaring that candidate ineligible to run for the Town Council. Fundamental to our system of government is the principle that the right to be a candidate for public office is a valuable one and no one should be denied this right unless the Constitution or an applicable valid law expressly declares him to be in eligible. See Treiman v. Huffstetler, 342 So. 2d 972 (Fla. 1977). In Hurt v. Naples, 299 So. 2d 17 (Fla. 1974), the Florida Supreme Court emphasized: Discouragement of candidacy for public office should be frowned upon in the absence of express statutory disqualification. The people should have available opportunity to select their public officer from a multiple choice of candidates. Widening the field of candidates is the rule, not the exception, in Florida. Unreasonable or unnecessary restraints on the elective process are prohibited. Pasco v. Heggen, 314 So. 2d 1 (Fla. 1975). To determine the reasonableness of the restraint or condition placed on the right to seek public office, a court will examine the nature of the right asserted in conjunction with the extent that it is necessary to restrict the asserted right in the interest of the public. Jones v. Board of Control, 131 So. 2d 713 (Fla. 1961). For example, in Treiman, the Florida Supreme Court declared invalid a judicial qualifying provision requiring judicial candidates to be an elector prior to the closing of the registration books preceding the last general election. 342 So. 2d at 976. The Court reasoned that requiring registration sometime in the past did not serve any "reasonable or legitimate state interest" and did "not in any way protect the integrity of the election process or purity of the ballot." Id. Section 4.03 of the Town Charter provides that candidates for the office of Town Council "shall qualify by filing a written notice with the Town Clerk at such time and in such manner as may be prescribed by ordinance." (emphasis added). In furtherance of the direction set forth in the Town Charter, section 22-1(b) of the Town Code provides: (b) Time and manner of qualifying. Each person shall rile qualification papers on the prescribed form obtained from the Town Clerk and rile such D. Branwell 6/12/2012 Page -3 — papers, upon payment of the qualifying fee, with the town clerk at any time after 12:00 pm of the first day of qualifying, which shall be the 75th day prior to the election, but not later than the 65th day prior to the election. (emphasis added). Neither section 4.03 of the Town Charter nor section 22-1(b) of the Town Code require a potential candidate for Town Council to obtain or file their qualifying papers from the Town Clerk in -person. Additionally, no other provision of the Town Code or the Town Charter addresses the manner in which qualifying papers are obtained or submitted to the Town. Further, I am not aware of any applicable state or federal law requiring a town council candidate to either obtain or file qualifying papers with a town in -person. Therefore, absent such a law requiring that qualifying papers be obtained or filed in -person with the Town, the Town cannot compel a person to obtain or file qualifying papers in -person with the Town Clerk. Although non -binding in Florida, the case Ridgeway v. Ray, 297 Ark. 195 (1988) is instructive and supports my opinion. In this case, a candidate sought to have another candidate declared ineligible to run for office based on their failure to file statutorily required documents "in -person" before the county clerk. The two candidates who were subject to being declared ineligible had someone file the required documents on their respective behalves. In ruling in favor of the two candidates being declared eligible to run for office, the Arkansas Supreme Court construed a state statute requiring a "candidate for county, municipal, or township offices ... [to] file with the county clerk" certain qualifying papers. The Court held that since the language of the statute was silent on requiring "in -person" filing of the papers, the statute should not be interpreted to require a candidate to file the papers "in -person." Id. Similarly, since section 22-1(b) of the Town Code is silent on in -person filing, it too should not be interpreted to compel in -person filing of Town Council qualifying papers. Furthermore, going forward the Town should consider the unique demographics of the Town's registered electors, particularly the fact that many of the Town's electors apparently have more than one residence and do not reside in the Town during the summer when Town Council qualifying occurs. In fact, this uniqueness is actually reflected in section 2.08 (a) of the Town Charter which expressly provides that the Town Council does not have to conduct a regular meeting in the summer months of July and August. Therefore, even if the Town were to adopt a law requiring an in -person qualifying requirement for Town Council, given these known unique demographics, that law may be susceptible to being successfully challenged on the basis that it discourages candidacy for office and constitutes an unnecessary or unreasonable restraint on the Town's elective process in violation of the law. See Treiman v. Huffstetler, 342 So. 2d 972; Hurt v. Naples, 299 So. 2d 17; Pasco v. Heggen. 314 So. 2d 1. Moreover, if such a Town law existed and were challenged, the Town may have the unenviable task of reconciling to a court the irony of the fact that the Town Charter does not require the Town Council to be in Town for Council meetings in July and D. Branwell 6/12/2012 Page -4 — August, but a candidate seeking to run for Town Council must be in Town at that time in order to obtain and file a qualifying package. Undoubtedly the Town's past practice of requiring in -person qualifying is helpful to the candidate because the candidate can ask questions and correct paperwork deficiencies "on -the -spot" and in -person at Town Hall. Obtaining and filing qualification papers by mail or through the assistance of some other delivery person or service does not afford the candidate the opportunity to seek clarification of filing requirements or to correct deficiencies of paperwork as expeditiously. Further, a candidate cannot personally verify that the qualifying paperwork was delivered to Town Hall on -time. As such, in some cases, the Town's in -person qualifying practice may mean the difference between a potential candidate being deemed qualified or ineligible because timely submitting correct qualifying papers is mandatory under the law, and qualifying papers filed erroneously or too late will result in the candidate being declared ineligible to run for Town Council. See, etc .., Battaglia v. Adams, 164 So. 2d 195 (Fla. 1964); Bayne v. Glisson, 300 So. 2d 79 (Fla. 1S DCA 1974)(citing 29 C.J.S. Elections s. 114). Particularly, section 4.03 of the Town Charter and section 22-1(b) of the Town Code require that candidates for Town Council `ale" completed qualifying papers with the City Clerk by the end of qualifying. The word "file" means that a candidate must ensure that the Town Clerk receives the completed qualifying package by the end of the qualifying period. See ea, Slides v. Thomas, 559 P.2d 80 (Alaska 1977) (citing Blades v. United States, 407 F.2d 1397, 1399 (9th Cir. 1969) (The definition of 'file' is well established in the law. It has been consistently held that a document is filed only when the proper office has received it, and that it is not considered filed when it is deposited in the mails); United States v. Easement and Right -of -Way, 386 F.2d 769, 771 (6th Cir. 1967); Wirtz v. Hod Carriers Local 169, 246 F.Supp. 741, 750 (D.New.1965); Mears v. Mears, 206 Va. 444, 143 S.E.2d 889 (1965); E. M. Boerke. Inc. v. Williams, 28 Wis.2d 627, 137 N.W.2d 489, 493 (1965); Wade v. Dworkin, 407 P.2d 587 (Alaska 1965)). On this point, I recommend going forward that the Town Clerk include a written disclaimer (in bold, large print) advising prospective candidates for Town Council that qualifying packages must be physically received in the Town Clerk's office by the end of the qualifying period and that qualifying packages deposited in the mail or with a delivery service shall not be deemed filed until physically received in the Town Clerk's office. Consequently, if a candidate for Town Council chooses not to take advantage of the Town's in -person qualifying practice, they assume a greater risk of being deemed ineligible to run for office if their qualifying papers are not received by the Town on time, or the qualifying papers contain errors and omissions that cannot be corrected before the filing deadline has passed. Accordingly, I do not see a problem with the Town continuing to offer this valuable service to potential candidates for Town Council so long as it is not mandatory. As for your concerns about maintain the integrity of the qualifying process, if a potential candidate refuses to appear in -person, there are other alternatives and D. Branwell 6/12/2012 Page -5 — safeguards that the Town can take that would likely not be considered an unreasonable or unnecessary restraint or condition on the Town's elective process. For example: (1) The Town could send the qualifying packages by Fedex or certified U.S. mail and require a signed return receipt to verify the package is received. In conjunction with this approach, the Town could require the candidate to submit his or her request for a qualifying package to the Town in writing and require advance payment for the mailing. (2) For tracking purposes, the Town could compile each qualifying package in a bound format for delivery to the candidate. The packages could also be prepared with identifying information that only allows for the package's use in a particular election cycle (e.g, 2012 Town Council General Election). Further, the packages and incorporated qualifying forms can be sequentially numbered for official control and verification purposes by the Town. This approach may help with tracking packages made and delivered to prospective candidates and may ensure that only official Town forms are used to qualify candidates pursuant to section 22-1(b) of the Town Code, which requires qualification papers to be filed on "the prescribed form obtained from the Town Clerk." (3) The Town could establish a filing verification process. If a candidate elects to file qualifying packages by mail or Fedex, the Town could encourage that the packages be delivered to the Town in a manner that requires the Town to sign a receipt. This procedure would protect both the candidate and the Town because the date and time of filing with the Town would be logged by the mail delivery service in addition to the Town logging the date and time. (4) If the candidate elects to send some other person on their behalf to obtain and file the qualifying package with the Town, the Town can require that person to sign a receipt verifying the date and time that the package was received and filed with the Town. Upon receipt of this letter, please provide each of the Town Council members a copy of this opinion. If you or any member of the Town Council has any questions, I would be happy to discuss them with you. Sin el , Anthony A. Garganese Town Attorney Aag/