Who Will Defend the County Charter?
by Kemp Brinson
Earlier this month, Polk County and the Clerk of Court filed their answers in Killebrew v. Edwards, a case challenging the constitutionality of two provisions in the Polk County charter. One of those provisions sets term limits for county commissioners. The other caps commissioner salaries.
Documents:
As discussed in a prior post, the term limit provision will be held unconstitutional unless the Florida Supreme Court reverses itself, something that is extremely unlikely. I believe the salary cap provision, in contrast, is defensible in part. (More on the “in part” issue in a later post.)
The problem is: who will defend it? Not the County. The County’s answer admits all of the substantive allegations of Mr. Killebrew’s complaint. Legally, this means the white flag has been raised before the battle has even begun. The County’s official position is that both the term limit and salary cap are unconstitutional. (Shocking, isn’t it?)
There are two other defendants: Supervisor of Elections Lori Edwards and Clerk of Court Richard M. Weiss.
Ms. Edwards’ office has nothing to do with the salary cap issue. I would expect her to concede that the term limits are unconstitutional and either admit or take no position on the allegation that the salary cap is unconstitutional. She may even “default” in the suit, meaning she might not even file an answer, effectively conceding the case. I think this would be an appropriate position for her to take given that her office is not involved in what ought to be the contested issue.
Mr. Weiss, however, is in the opposite position. His office, as far as I know, has nothing to do with the term limit issue, but, because he is the county comptroller, he is implicated by the salary cap. Will Mr. Weiss step in and defend this provision?
Mr. Weiss’s answer to the Complaint is more guarded than the County’s. He neither admits nor denies that the provisions are unconstitutional. Instead, he says that he is “without knowledge” as to whether they are Constitutional or not. This is an extremely common and useful way to respond to allegations in a Complaint. Saying that you are “without knowledge” basically says “I don’t have any evidence to the contrary yet, but I’m going to make you prove it.” I think Mr. Weiss’s measured, sensible response, as opposed to the County’s immediate surrender, is a much more appropriate way to handle this. There is, after all, an argument to be made that the salary cap provision is, at least in part, Constitutional. In my opinion, that argument has a reasonable chance of success.
As explained in a prior post, the Florida Supreme Court case that Mr. Killebrew relies on is from the 1920′s. The issue is the meaning of the phrase “by law,” as in, “The powers, duties, compensation and method of payment of state and county officers shall be fixed by law.” Fla. Const. Art II, Sec. 5(c). If “by law” means “by statute,” then the provision is unconstitutional because a county charter provision is not a statute. If “by law” means “by statute or by charter,” then the charter provision is Constitutional.
The 1921 case of State ex rel. Buford v. Spencer holds that “by law” means that counties cannot set salaries by ordinance. An ordinance is not a law. But this case was decided before county charters even existed. It simply cannot be said that this case definitively resolves the question. The 1921 Florida Supreme Court would have had no way of knowing that, at some point, the people of the State of Florida might vote to delegate some of their statewide lawmaking power down to the county level through a charter process.
Generally speaking, we expect executive branch officials to defend the Constitutionality of the laws that they are tasked with enforcing, if an argument can be ethically made in defense of those laws. So who will step up and make that argument? Who will say “I have a duty as an officer of this county to defend the county charter, regardless of my personal opinions on the matter.” Anyone? If not, citizens will have to intervene.
The County Commission won’t.
The County Attorney hasn’t given them any reason to, insisting, incorrectly in my view, that the case is a slam dunk. It only appears to be a slam dunk because the County Commission and the plaintiff play for the same team. I wonder if the County Commission would have taken a different position if the County Attorney had explained the opposing argument to them?
The Supervisor of Elections does not have a dog in the hunt.
What about you Mr. Weiss? Do you have the political guts to defend our Charter? You have answered the Complaint in a manner that will allow you to make the argument.
I have no idea how Mr. Weiss feels about term limits, but I think very highly of him as a clerk of court. I hope his office decides to defend the document he has been tasked with enforcing. After all, he has been operating under the assumption that the provision is valid ever since it was passed.
I think the salary cap is bad policy. I would happily vote against it given the opportunity. But when a provision of our Charter is called into question, it ought not to be the case that a local businessman, the county commission, the county attorney, and the clerk of court can conveniently all happen to agree that the question is easier than it really is, reversing a years-old policy of happily enforcing the provision as if it was valid.
Someone needs to be the grown-up and defend the document that we elected you to enforce, if there is a reasoned defense to be made. And there is. It shouldn’t be the job of citizens groups to have to step in and prevent our leaders from letting their personal views cloud their professional judgment. The County Commission has failed us in that regard.
The ball is in your court, so to speak, Mr. Weiss.
The obvious answer to your question of “Who Will Defend the County Charter?” is NOT the County Commissioners, NOT the County Attorney, NOT the Clerk Of the Courts and NOT the Supervisor of Elections. NO elected official in Polk County would stand up. It took the grass roots organization of the Lakeland Tea Party and 9/12 Project, supported by the Winter Haven 9-12 Project Group to fight the battle for the people of Polk and its’ Charter. Exerting public pressure through showing disapproval of Commissioner English’s action and exposing his shananigins through a Petition drive, the attack on our Charter was altered. Also the support of many private citizens, including John Hall, and the donations collected to hire Constitutional Attorney Rebecca O’Dell Townsend, delayed a hearing until the 4th DCA could rule, finding term limits for county commissioners Constitutional. This same group of citizens will continue to fight until the Charter is safe again. So the final answer to “Who Will Defend the County Charter?” is “We The People”.
Under Sections 6.1.2 and 8.3.2, the original Charter specifically precluded any amendment by way of initiative from changing the salaries of county officers. Despite these provisions, such an initiative was subsequently placed on the ballot and passed.
It would appear that in order for such an initiative to lawfully pass, 6.1.2 and 8.3.2 should have first been eliminated or amended to allow for future salary cuts prior to the adoption of any measure to reduce the county commissioners’ salaries.
As it stands now we have original overriding provisions in the Charter that are is conflict with the subsequent adoption of a newer provision in another section of the Charter.