They're popular, but are they legal? Judge to weigh proposed amendments to FWB charter
FORT WALTON BEACH — The Fort Walton Beach City Council is going to let a judge decide whether residents should be permitted to vote on three charter changes proposed by an organization created following the 2019 passage of a controversial fire fee.
After almost three hours of debate and two failed motions, council members voted 4-3 to "ask a court of competent jurisdiction" if any or all of the changes proposed by the Fort Walton Beach Watch Group should be placed on a ballot for consideration by city voters.
"If a judge says they're legal I'll make the motion to put them on the ballot," Councilman MG Moran said prior to voting in favor of the call for a judicial declaratory action. He was joined in supporting the measure by council members Kirby Locklear, Mike Holmes and Nathan Kelley.
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Council members who opposed seeking advice from the courts said they instead favored putting the ballot issues to a referendum as soon as possible and letting the city's voters decide whether they wanted the charter changes made.
Questions of whether the city could legally implement one or more of the proposed changes could be answered if and when the electorate decided in favor of the charter changes council members Nic Allegretto, David Schmidt and Travis Smith argued.
"I'm ready to not kick this can down the road any more," Allegretto said.
Questions over the constitutionality of two of the three proposed charter amendments were raised in an analysis conducted for the city by the law firm of Nabors Giblin & Nickerson. Arguments could be made, a report to the council said, that making the changes the Watch Group has called for could create a "conflict with general law."
The proposed changes, which have been whittled down to 75 words to meet ballot requirements, would impact salaries of elected officials, prohibit the levy of special assessments without voter approval and impose caps on raising property taxes without voter approval.
The Nabors Giblin & Nickerson report states that efforts to have voters, rather than elected officials, dictate the imposition of both special assessments and property taxes appear to violate state law.
"The power to limit a county commission's (or a municipal government's) ability to raise revenue for county (or city) operating needs is effectively and exclusively lodged in the legislature," the report said. State statute "provides that a city's governing authority — as opposed to the voters — is authorized to levy and impose special assessments."
The report likewise states that statute dictates an elected governing body must establish a budget and levy ad valorem taxes. That duty cannot be turned over to the electorate, it said.
"If the voters are not satisfied with the commissioners actions in this regard, they have a remedy through the ballot box at the next popular election," the law firm report said, citing legal findings.
By voting to have a judge review the proposed charter amendments it appeared the City Council was signaling a willingness to place whichever of them pass legal muster on a ballot for consideration.
Several city residents who spoke ahead of the debate on which way to go with the proposals seemed to believe the city was trying to get around its obligation to conduct a referendum.
"Not withstanding our group having submitted the required number of petitions (over 10% of the registered voters) the Fort Walton Beach Council is refusing to submit our proposed charter amendment to a vote as required by law," Watch Group member Bob Lee said in a text message ahead of the Tuesday meeting.
The council did vote on the issue of putting the three amendment proposals on a ballot as written at the next general or special election. That motion, made by Councilman Smith, failed. The council also rejected Smith's call to put two of the three proposals, leaving off the one deemed most controversial, to a vote.
"The reason this is hanging over our heads is because you guys have made the decision to let it hang hang over our heads," Smith told his fellow board members.
Councilman Locklear put out the call to have a judge scrutinize the ballot questions.
"Obviously this is a very divisive issue. I want someone other than ourselves, a judge, to decide whether these things are valid," Locklear said. "I feel like this is the only choice we've got."
The Fort Walton Beach Watch Group was formed in 2019 following the city's imposition of a municipal fire fee.
The fee imposed an $80 total annual charge on each residential property unit and levied a charge against commercial properties of 7 cents per square foot and on industrial/warehouse properties of 2 cents per square foot.
The funds were expected to generate $1.2 million over the course of a year and help reduce the city’s reliance on general fund revenue to pay for various Fire Department expenses.