Lisa Conley, Naples Daily NewsPublished 10:47 a.m. ET June 21, 2018 | Updated 9:28 p.m. ET June 21, 2018
A referendum aiming to establish a Naples ethics commission will not appear on the August ballot due to a legal battle between the city and the PAC behind the referendum, but court documents show city officials offered to expedite the process in May and the PAC declined.
The city's dispute with the PAC, called Ethics Naples, could cost taxpayers $40,000 if a special election is called for the referendum, a county official said.
“We've been bending over backwards to try to expedite the process,” Assistant City Manager Roger Reinke said. "Ethics Naples has refused the city's offer to mutually expedite the hearing on the matter."
In fact, Ethics Naples leaders "have done everything they can to avoid having the courts examine whether the petition is legal before having it placed on the ballot,” City Attorney Jim Fox wrote in a June 15 email to the City Council.
Councilors voted May 2 to let a judge decide whether the referendum, which would establish an ethics commission if approved, would appear before voters.
The next day, Fox recommended both parties agree to waive discovery and expedite the summary-judgment briefing, which would have put the case before a judge by the end of the month.
However, Ethics Naples did not agree and instead filed an emergency petition in the Florida 2nd District Court of Appeal, which transferred the case back to the 20th Judicial Circuit.
Ethics Naples then filed another emergency petition with Collier Circuit Judge James Shenko, even though the city's original case already was pending in front of Collier Circuit Judge Hugh Hayes. When Shenko realized that, he dismissed the emergency petition.
"This clear attempt to forum shop ... was frivolous and merely delayed resolving the dispute," the city wrote in response to the PAC's emergency motion.
"If Ethics Naples truly believed that this dispute was an emergency, then it should have ... agreed to the expedited litigation.
"Instead, Ethics Naples has spent almost a month shopping for a judge other than Judge Hayes and doing everything it can to delay and avoid the constitutional question."
Ray Christman, executive director of Ethics Naples, said the PAC thought the emergency petitions were the most appropriate action, given the city's approach to the case.
"The core issue as far as we're concerned is the ministerial duty of the council to put the issue on the ballot," Christman said.
"Had their (request for declaratory judgment) been focused on that issue and only that issue, we would have responded quickly and it's possible it would have been done in time for the August election," he said.
Instead, the city's complaint focuses on more than a dozen alleged flaws with the referendum's language.
Ethics Naples has described that as a "piecemeal attack," and the PAC filed a request Tuesday to dismiss the city's complaint.
"The city took an 'everything but the kitchen sink' approach in their filing, which we thought was simply trying to distract the court from what the issue really is," Christman said. "Those are matters to be dealt with after the referendum is on the ballot."
But that wouldn't be fair to voters, Reinke said. He compared the situation to someone trying to push a referendum to segregate the city's drinking fountains.
“Just because they got enough petition signatures, does that mean we should put it on the ballot, even though it’s patently illegal? Of course not,” he said. “This is the same idea, and if the voters pass an illegal law, they’ll have the expectation that it’ll somehow become legal.”
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.
That means that 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, a spokeswoman for the Collier County supervisor of elections.
According to City Attorney Bob 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.
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.
Either party has the right to appeal the judge's decision, Pritt said, so the case could end up back in the Florida 2nd District Court of Appeal. It also could end up going before the Florida Supreme Court or even the U.S. Supreme Court, although that's unlikely, Pritt said.
Judge Hayes is scheduled to hear the case Aug. 21.