Residents speak out against commission decision to postpone election until March 2024.
The Ocoee City Commission voted Tuesday for a resolution canceling the June 13 special election for District 4 city commissioner and calling a general city election for March 19, 2024, to fill the vacant commission seat and vote on amendments to the city charter.
The 2024 presidential primary election will also be held that day.
The resolution passed 4-1. District 2 Commissioner Rosemary Wilsen said she voted against the resolution because she was “torn between the previous vote” to green light the June 13 special election. That vote, taken in March, was unanimous.
The city saves the estimated $10,000 it would have had to spend to hold the special election by piggybacking on Orange County's preparations for the presidential primary, letting the county pick up the tab for printing ballots, renting poll locations and paying poll workers. (Orange County Supervisor of Elections Bill Cowles is encouraging municipalities to take advantage of the economies of scale to hold their elections on March 19, 2024, calling it Municipal Elections Day.)
The vote to cancel the election came after a presentation by government law expert Richard S. Geller and an extensive Q&A with commissioners and members of the public. A partner in the Winter Park firm Fishback Dominick, Geller had been tasked with evaluating the city charter to determine when the special election should be held after three residents raised questions during the April 18 city commission meeting about the city charter phrase “general city election” and whether the March 19, 2024, presidential primary election qualified as a general city election.
Richard S. Geller's May 2 presentation to the city commission.
A difficult legal argument
The city charter says that if there will not be a general city election within 12 months of a vacancy on the commission, then a special election needs to be held. Former District 4 Commissioner George Oliver resigned his seat January 10 to launch an unsuccessful bid for mayor. But his resignation only became effective March 21 when Mayor Rusty Johnson was again sworn in. The March 19, 2024, election falls just within the 12-month window.
In his presentation, Geller strongly recommended that the commission reschedule the June election for March 19, 2024, and drafted the resolution the commission ultimately voted on. As a “legislative determination,” Geller said, the decision to reschedule would withstand a legal challenge.
Geller told VoxPopuli during the meeting that the “difficulty” now in making a legal argument for sticking with the original June 13 election date is that the commission voted at the April 18 meeting to establish a charter review commission. The charter mandates when amendments that come out of that commission need to be voted on by residents and when elections need to be held to fill vacancies on the commission.
“So that’s the wrinkle that happened,” he told VoxPopuli.
District 1 Commissioner Scott Kennedy asked Geller if the commission erred in scheduling the special election for June 13.
Geller replied that scheduling the special election was not a mistake. “There was no determination at that time that you were going to have a charter review commission look at this, so at the time it made sense to schedule a special election.”
If there was any error, it appears it was establishing the charter review commission before the special election was concluded.
The process of elimination
How a charter review commission impacts the timing of an election to fill a vacant commission seat is complex, but Geller walked commissioners and meeting attendees through the legalese, answering the key question of how the city charter defines “general city election.”
First, Geller explained that voting on the amendments that come out of the charter review commission “must take place at the next municipal election … which would be March 19, 2024.”
Next, he explained that, according to the city charter, the referendum on charter amendments A) doesn’t fit the criteria for calling a special election and B) is not a “regular” election, which the charter defines as annual municipal elections held on odd-numbered years.
“The next regular election will be in 2025. The election in March 2024 would not be a regular election, nor would it be special election,” Geller said. “So, whittling down the possibilities, it would be a general municipal election or general city election, same thing. I would suggest to you that you can reasonably determine as the judge of elections that an election to decide both the District 4 seat and propose charter amendments on March 19, 2024 would be a general city election.”
"There is no requirement to hold a special election on June 13."
Geller added that if there is still disagreement about whether the March 19, 2024, election is a general city election —“and I believe it is a general city election” — the commission could designate the March election a special election.
Here, he parsed the legal language even further.
“There’s a question about whether a special election must be held within 90 days of the vacancy," he said. "My analysis, my reading of the charter, it does not have to be held within 90 of the vacancy.” He cited a 1937 Florida Supreme Court decision that said “calling an election is not the same thing as holding an election.
“Calling an election means announcing an election,” Geller said. “The [state] supreme court said that one of the things necessary to be done to accomplish the registration of voters and the conducting and holding of an election, is the calling of an election. So the election is called first, and then it is subsequently held.”
Finally, Geller pointed to the “difference in language” in the charter regarding situations that require special elections to be called and held. With a petition for an ordinance, for instance, the charter requires either that the commission pass the ordinance within six weeks or “call a special election to be held within 90 days.” However, to fill a commission seat vacancy if there won’t be a an election within 12 months, the language reads, “a special election ... shall be called within 90 days of the vacancy."
Geller noted the words "to be held" are missing. "There appears to be clear intent that, yes, you need to call [the election] but it does not have to be held within the 90 days," he said. "There is no requirement to hold a special election on June 13.”
Residents speak out
Several Ocoee residents spoke out against postponing the election, saying that although commissioners could legally postpone the election that didn’t mean they should.
"They agreed, called, and, in my judgment, announced, that they were going to hold an election 90 days after the prior election. That’s why I think there’s a lack of trust in government,” said Timothy Ayers of District 4. Ayers, who chairs the Orange County Democratic Black Caucus added that District 4 residents will not have elected representation for 12 months.
Chris Adkins, a resident of District 2 who ran unsuccessfully for mayor in the last election, implored the commissioners not to go back on their votes.
“Mr. Johnson, Mr. Firstner, Ms. Wilsen, you already voted," he said. "You voted in this room to have an election in June,” he said. “I think that it is not only doing the District 4 constituents a disservice for changing your vote that was just a few weeks ago, but it’s doing our city a disservice too. In the media we look like we’re just changing and misleading things.
“We should stick to the things that we say,” he continued. “We should stick to the things that we tell our taxpayers. The changing of things all the time, it sows a really bad seed. It makes us feel like we can’t trust you, like there’s some kind of odd side angle to what you’re doing, and I’m not even saying that there is, but it really presents itself that way. "
Adkins added that canceling the election would also do the candidates a disservice. "It boils back to wrong and right. None of us are always wrong. None of us are always right. But your vote should stand.”
“Even though we may be able to move this election, the question is why? Why are we moving this election? There is no good reason to move this election,” said Larry Brinson, Sr. who represented District 1 for a single term and stepped down from the commission in March.
“We need to fill that seat now. Why should we have to wait, almost a year, literally 363 days, to put someone in that seat for the remainder of that term. Why can’t we do that now? Why wait before a year passed?”
Brinson argued that $10,000 was too inconsequential an amount to actually factor into the commission’s decision to cancel the election. “That is what we call in finance ‘fiscal dust,’" he said. "That is nothing compared to our budget.” Ocoee's 2022-2023 budget is $110,144,169.
"We need to fill that seat now. Why should we have to wait almost a year to put someone in that seat for the remainder of that term?"
What’s next for the candidates
Reached by text on Wednesday, candidate Nate Robertson said he would continue to campaign for the District 4 seat, although he said there would be “some changes since the election is 322 days away and not 40.”
Former District 4 Commissioner George Oliver texted that he had “no comment at this time.”
Both candidates will again have to qualify for the March 19, 2024, election, according to City Clerk Melanie Sibbett. Candidate qualifying fees will be refunded, she said in an email. New qualifying dates have not yet been determined.