How some Naples City officials are trying to divert attention from the City’s refusal to put the Naples Ethics referendum on the ballot by personal attacks on Ethics Naples Leaders
Historical literature is replete with references to “Shoot the Messenger”. The phrase describes the temptation of officials who — receiving news that their conduct is illegal or improper — choose to lash out against the person making the charge (the “messenger”) rather than acknowledge and correct the officials’ error.
Now some Naples officials are seeking to punish a leader of the Ethics Naples citizen reform organization for publicly speaking out about the City Council’s refusal to follow state law and the Council’s refusal to place the proposed Ethics Amendment on the ballot.
In what can only be considered an Orwellian example of “Shoot the Messenger”, some Naples officials now claim that Ray Christman, Executive Director of Ethics Naples, violated the City’s existing Ethics Ordinance by appearing before the Council on May 2, 2018 and — emphasizing the Council’s statutory duty — asked the Council to place the Ethics Amendment on the ballot.
THIS MATTER IS SCHEDULED TO BE CONSIDERED BY THE CITY COUNCIL AT THE COUNCIL MEETING ON WEDNESDAY SEPTEMBER 5TH AS ITEM 14B ON THE AGENDA.
These officials claim that because Ray also served in a voluntary capacity as a member of the CRAAB (Community Renewal Agency Advisory Board) — while also serving as the director of the non-profit Ethics Naples organization — he was barred by the existing Naples Code from speaking to the Council about the Council’s statutory duty to place the Ethics Amendment on the ballot.
That the claim is bogus is self-evident from reading the Code. While the Code prohibits a “public officer or employee” (including an advisory board member) from representing another “person, group, or business entity” before the Council (Section 2-974(d)(2)), another section of the Code (Section 2-973(b)) makes it clear that the “conflict” prohibition does not apply where the non-governmental entity to which the public officer or employee where – as here — the regulatory authority over the non-governmental entity resides in another governmental agency (not the City). Here the regulatory authority over Ethics Naples (a political action committee of PAC) resides in state or federal election authorities, not the City of Naples:
“Sec. 2-973. - Conflict of interest—Prohibited relationships.
(b) When the regulatory power over the business entity resides in another governmental agency, or when the regulatory power that the council exercises over the business entity or agency is strictly through the enactment of laws or ordinances, then employment or a contractual relationship with such business entity by a public officer or employee of a legislative body shall not be prohibited by this subsection or be deemed a conflict.
(emphasis added)
Apart from the literal express language of the Code, there are other common sense and practical reasons for not deeming communications to the Council by employees or advisory committee members — as to violations of law by the City — to be a breach of the Code. For example, many Advisory Board members may also be members of non-profit organizations who have an interest in good government or issues of public concern. Thus, an advisory board member concerned about a good government issue before the Council — where the board member was a member of the League of Women Voters — might be at risk of being accused of an ethics violation if she spoke to the Council and identified herself (or was identified) as a member of the League of Women Voters.
Similarly, an advisory board member who was a member of an environmental or conservation organization might be at risk of being accused of an ethics violation if he or she spoke to the Council about the red tide issue and the City’s possible violations of federal and state water quality laws.
Finally, simply as a matter of good and honest government, city employees and advisory board members should not — under threat that they will be charged with an ethics violation — be discouraged or intimidated from bringing information about legal violations by the City. “Whistle blowers” — especially government employees most likely to observe illegal actions by other City employees — should be encouraged to bring information about illegal actions to the Council.
What’s Really at Stake Here?
It must be emphasized that not all City officials are making this preposterous claim against Ray Christman. But some City officials are clearly seeking to divert attention from the Council’s failure to comply with state law (refusing to place the Ethics Amendment on the ballot) by concocting the bogus ethics charge against a leader of the Ethics Naples movement.
Many of you are no doubt aware of the City Council’s 4-3 decision this past May to refuse to place the Naples Ethics Amendment on the ballot. Four Council members decided to ignore the signed petition of more than 1500 register Naples voters supporting the amendment — disregarding the City Council’s nondiscretionary statutory duty to forward the Amendment for placement on the ballot.
Instead, the City decided to sue Ethics Naples, the citizen organization that organized the citizen initiative, in an attempt to block the Ethics Amendment from reaching you, the voters — a vote that would let you decide whether you wanted stronger ethics oversight. Consider the irony. A City whose motto is “Ethics above all else” votes to block its own voters from enacting a stronger Ethics Charter!
Those who are now promoting the bogus ethics claim against Ray Christman are seeking to divert your attention from the fact that the City Council’s 4-3 action to block Naples voters’ right to vote on the Ethics Amendment clearly violates state law.
Numerous Florida appellate court decisions have repeatedly emphasized that even where, as here, opponents claim that individual sections of a proposed referendum Charter Amendment violate the law, while not challenging other sections of the amendment, the mandatory proper course is for the City to send the entire proposed amendment — including the challenged sections — for placement on the ballot.
Under a clear line of judicial decisions dating back to the Florida Supreme Court’s decision in Dade County v. Dade County League of Municipalities, 104 So. 2d 512, 514-515 (Fla. 1958), Florida courts have repeatedly emphasized that the right of citizens to place referenda questions on the ballot is to be protected and the courts should refrain from judicial interference with placement of proposed referenda on the ballot — and avoid any judicial interference before the election unless the challenge is that the entirety of the referendum is unlawful.
In Dade County, the Florida Supreme Court explained:
When a proposal of the nature here involved is as saulted on the ground that it violates the Constitution, the courts will not interfere if upon ultimate approval by the electorate such proposal can have a valid field of operation even though segments of the proposal or its subsequent applicability to particular situations might result in contravening the organic law. In other words, if an examination of the proposed amendment reveals that if adopted it would be legally operative in part, even though it might ultimately become necessary to determine that particular aspects violate the Constitution, then the submission of such a proposal to the electorate for approval or disapproval will not be restrained.
Id. at 515 (emphasis in italics and underscore added).
The Court emphasized that although there may be doubt as to the legality of parts of the proposed charter amendment at issue, it should nevertheless go before the electorate. Id. at 518. Indeed, the Court could not have been clearer in its conclusion.
“The invalidity of the entire amendment not having been shown the submission of the amendment to the electorate for approval or disapproval is proper.”
Id.
In Citizens for Responsible Growth v. City of St. Pete Beach, 940 So. 2d 1144, 1146-47 (Fla. 2d DCA 2006) the Second District followed the dictate of the Florida Supreme Court in Dade County:
“Our consideration of the issue is limited to whether the challenged petitions, individually, contravene the Florida Constitution as inconsistent with state law. When a petition can “have a valid field of operation even though segments of the proposal or its subsequent applicability to particular situations might result in contravening the organic law,” it must be submitted to the electorate. Dade County v. Dade County League of Municipalities, 104 So.2d 512, 515 (1958). Only when a petition is unconstitutional in its entirety may it be precluded from placement on the ballot.”
940 So. 2d at 1146-47 (emphasis in underscore added)
The Fourth District followed Dade County in West Palm Beach Ass’n. of Firefighters, Local Union 727 v. Bd of City Commissioners of the City of West Palm Beach, 448 So.2d 1212, 1214 (Fla 4th DCA 1984). As stated by the Fourth District Court of Appeals in West Palm Beach:
“It appears that when an initiative petition is presented requesting the presentation of a proposed ordinance to the electorate and the governmental agency in good faith questions the constitutionality of the ordinance in its entirety and on its face the court may properly consider that question in advance of an election concerning its approval. Dade County v. Dade County League of Municipalities, supra.
On the other hand, a proposal that is unconstitutional only in part or is invalid on nonconstitutional grounds is not cognizable by the court prior to a proposed election. Rivergate Restaurant Corp. v. Metro Dade Cty., 369 So.2d 679 (Fla. 3d DCA 1979)
Thus, in the present case it was appropriate for the court to entertain and decide the constitutional question because the city contended the ordinance was unconstitutional in its entirety.
448 So.2d at 1214 (emphasis in underscore added)
Finally, the Third District in Rivergate Restaurant Corp. v. Metropolitan Dade County, 369 So. 2d 679, 683-684 (Fla. 3d DCA 1979) emphasized the Dade County rule in ruling that the circuit court had improperly blocked a portion of a challenged referendum from being placed on the ballot:
Under the clear authority expressed above, the circuit court, in entertaining the appellant’s complaint, was limited to a determination as to whether the proposed ordinance was invalid in its entirety before it could restrain the holding of the special referendum election. [citations omitted] An individual piecemeal attack upon a portion of the proposal, as opposed to an attack on the proposal in toto, was not sufficient to enable the circuit court to enjoin the election or to delete the language of the proposed ordinance that the court found to be unconstitutionally vague. Once it was determined that the “Clean Indoor Air” ordinance was not invalid in its entirety, or once it became clear that the appellant intended only a piecemeal attack on the proposed ordinance, the circuit court’s judicial function was at an end and the wisdom vel non of the proposal was purely a matter for the electorate to decide. (ftn. omitted]
In short, the circuit court’s authority was restricted to an overall examination of the constitutionality of the proposed ordinance on its face. It fell into error when it went beyond that and determined that a portion thereof was unconstitutionally vague and should be deleted prior to consideration by the electorate.
369 So.2d at 683 (emphasis in italics and underscore added)
These Florida appellate court decisions clearly demonstrate that the Naples City Council has no authority to hold back the Ethics Amendment from the ballot.
But somehow, there has been no discussion of the clear mandate of these case in any public discussion by the City Council. The voters of Naples should rightfully ask — given the clear mandate of these Florida appellate court decisions — why these cases and their mandate have been ignored by the City Council and City staff,.
If These Actions by the City Council upset you or make you angry, here is what you should do.
1. Email each member of the City Council and ask that the City drop its attempt to sanction Ray Christman for speaking out as to the City Council’s legal responsibility to place the Ethics Amendment on the ballot.
2. Ask that the City Council stop wasting taxpayers’ money fighting the Ethics Amendment in court and forward the Ethics Amendment to the Collier County election authorities for placement on the ballot.