Lisa Conley, Naples Daily NewsPublished 12:55 p.m. ET June 15, 2018 | Updated 4:55 p.m. ET June 15, 2018
The Naples City Council and a political action committee have battled through the court system about the legality of an ethics referendum, but the window to place the referendum on the August ballot has closed.
The councilors voted in May to let a judge decide whether the referendum, which would establish an ethics commission if approved, would appear before voters. Although the council has until June 29 to submit the referendum question to the county to place it on the Aug. 28 primary election ballot, a judge won't hear the case in time to meet that deadline.
"We will not be on the ballot in August because there's just not enough time to go through the various processes that are required," said Ray Christman, executive director of the PAC, Ethics Naples.
"Now we're focused on the longer term and will be filling a response to the city's declaratory judgment next week," Christman said. "Then it's more back and forth."
Ethics Naples has collected enough petition signatures to move the referendum forward. However, City Attorney Bob Pritt has argued that parts of the referendum might be illegal, which is why the council voted to bring it before a judge.
In response, Ethics Naples filed an emergency petition in the Florida Second District Appellate Court. The appellate court transferred the case to the circuit court, which means it will be heard in the Collier County courthouse.
If a judge decides the referendum is legal, the city would have to host a special election, costing $35,000 to $40,000, according to Trish Robertson, spokeswoman for the Collier County supervisor of elections.
"That's why we tried to time this to coincide with the primary," Christman said."The city's decision to not follow state statute will end up costing the taxpayers thousands of dollars."
The council could have decided to place the referendum on the ballot and then have a judge decide its legality, but the majority of councilors said they were uncomfortable with the idea of doing that.
“I’ve heard people say, 'It doesn’t matter if it’s illegal or unconstitutional; let voters vote and then we’ll figure it out.' And in my modus operandi, that’s not how I function," councilwoman Michelle McLeod said at the May 2 council meeting. "I can’t move this forward when there’s so much doubt.”
An ethics commission would be the first in the city's history. It would have the power to investigate complaints against Naples officials and oversee sweeping changes to the city's ethics ordinances. It also would have the ability to subpoena witnesses, audit records and punish officials for ethical violations.
According to Pritt, one of the more questionable aspects of the referendum is a requirement that any proposed amendment to the city's ethics code by the ethics commission would become law unless five or more City Council members vote against it.
Either party has the right to appeal the judge's decision, Pritt said, so the case could end up back in the Florida Second District Appellate Court. It also could end up going before the Florida Supreme Court or even the U.S. Supreme Court, although that's unlikely, Pritt said.
Christman said he doesn't know when the issue will appear before a circuit judge, or how long the inevitable appeals process will take.
"Whatever the outcome is in circuit court, there will be an appeal, or maybe even multiple appeals, which will delay the issue even further," he said.
"But we're very confident that both the Florida statutory provisions that govern this matter and case law that has been rendered around this issue are solidly on our side, so we're not spending time thinking about a Plan B right now."
The proposed referendum states two of the five ethics commission members would be appointed by the state attorney and the public defender for the 20th Judicial Circuit, which includes Collier County. Pritt has said they might have conflicts of interest if an ethics violation becomes a criminal case.
To qualify the referendum, the Ethics Naples PAC had to collect petition signatures totaling at least 10 percent — about 1,500 — of the city’s roughly 15,000 registered voters from the last election.