16South Miami
°r) 3 M-AmeifeaM
U Iry00FPOPATEP •� CITY OF SOUTH MIAMI
OFFICE OF THE CITY MANAGER
o Rto
INTER - OFFICE MEMORANDUM zoor
To: The Honorable Mayor, Vice Mayor and CA'y Commissioners
From: Laurence Feingold, City Attorney V
Via: Maria M. Menendez, City Clerk l
Date: January 14, 2010 ITEM No.
SUBJECT:
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO
ELECTIONS; PROVIDING FOR DELEGATION OF
RESPONSIBILITY OF THE CANVASSING COMMITTEE FOR
THE FEBRUARY 9, 2010 GENERAL AND SPECIAL
ELECTIONS; RESCINDING RESOLUTION NO. 220 -09 -13029
DATED DECEMBER 8, 2009; AND PROVIDING AN
EFFECTIVE DATE.
STAFF'S OBSERVATIONS:
As per the attached explanation by Supervisor of Elections, Lester Sola, we are
required to have three members of the canvassing committee. For the reasons set forth in
the resolution, we are following the customs of other cities in having the new canvassing
committee consisting of the Supervisor of Elections, the City Attorney and the City
Clerk.
Attachments: Res. No. 220 -09 -13029
Elections Department Information
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RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO
ELECTIONS; PROVIDING FOR DELEGATION OF
RESPONSIBILITY OF THE CANVASSING COMMITTEE FOR
THE FEBRUARY 9, 2010 GENERAL AND SPECIAL
ELECTIONS; RESCINDING RESOLUTION NO. 220 -09 -13029
DATED DECEMBER 8, 2009; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, article V, section 5B of the city charter provides that the
canvassing committee "shall record the results of the election and proceed to
tabulate the absentee ballots and certify the results'; and,
WHEREAS, the canvassing committee is comprised of a majority of the
city commission and the city clerk; and,
WHEREAS, a majority of the city commission are candidates in the
election which scheduled for February 9, 2010, and one or more of the remaining
commissioners might be actively supporting a candidate; and,
WHEREAS, the participation of commissioners as candidates or their
involvement in actively supporting the campaign of a candidate creates a conflict
of interest with their duties as members of the canvassing committee; and,
WHEREAS, the Mayor and City Commission desire to avoid a conflict of
interest and to maintain the integrity of the election process, and, therefore, desire
to designate a disinterested government official to exercise their duties as
members of the canvassing committee.
WHEREAS, Resolution No. 220 -09 -13029 dated December 8, 2009 is
hereby being rescinded.
NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA, that;
Section 1. Members of the City Commission will not participate as
members of the canvassing cormmittee in the February 9, 2010 election. The City
Commission hereby delegates its duties as members of the canvassing committee
to the Miami -Dade County Supervisor of Elections, or his /her designee, the City
Page 1 of 2
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Attorney and the City Clerk. In the event the supervisor of elections declines this
appointment, then the city attorney is authorized to request the Chief Judge of the
Eleventh Judicial Circuit to appoint a county court judge to exercise the duties of
the canvassing committee, along with the City Attorney and the City Clerk.
Section 2. The Mayor and City Commission hereby rescind Resolution
No. 220 -09 -13029 dated December 8, 2009.
Section 3. This resolution shall take effect immediately upon approval.
PASSED AND ADOPTED this day of 12010.
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM:
CITY ATTORNEY
Page 2 of 2
APPROVED:
ITS ' • '
COMMISSION VOTE:
Mayor Feliu:
Vice Mayor Beasley:
Commissioner Palmer:
Commissioner Newman:
Commissioner Sellars:
Additions shown by underlining and deletions shown by ^verst:ikin .
RESOLUTION NO. 220 -09 -13029
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO
ELECTIONS; PROVIDING FOR DELEGATION OF
RESPONSIBILITY OF THE CANVASSING COMMITTEE FOR
THE FEBRUARY 9, 2010 GENERAL AND SPECIAL
ELECTIONS; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, article V, section 5B of the city charter provides that the
canvassing committee "shall record the results of the election and proceed to
tabulate the absentee ballots and certify the results "; and,
WHEREAS, the canvassing committee is comprised of a majority of the
city commission and the city clerk; and,
WHEREAS, a majority of the city commission are candidates in the
election which scheduled for February 9, 2010, and one or more of the remaining
commissioners might be actively supporting a candidate; and,
WHEREAS, the participation of commissioners as candidates or their
involvement in actively supporting the campaign of a candidate creates a conflict
of interest with their duties as members of the canvassing committee; and,
WHEREAS, the Mayor and City Commission desire to avoid a conflict of
interest and to maintain the integrity of the election process, and, therefore, desire
to designate a disinterested government official to exercise their duties as
members of the canvassing committee.
NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA;
Section 1. Members of the city commission will not participate as
members of the canvassing committee in the February 9, 2010 election. The city
commission hereby delegates its duties as members of the canvassing committee
to the Miami -Dade County Supervisor of Elections, or his /her designee. In the
event the supervisor of elections declines this appointment, then the city attorney
is authorized to request the Chief Judge of the Eleventh Judicial Circuit to appoint
a county court judge to exercise the duties of the canvassing committee, along
with the city clerk.
Page I of 2
Additions shown by underlining and deletions shown by ewrstrilc .
Section 2. This resolution shall take effect immediately upon approval.
PASSED AND ADOPTED this 8th day of December, 2009.
ATTEST:
APPROVED:
4.
'IYO'R
COMMISSION VOTE:
READ A PROVED AST DM: Mayor Feliu:
ice Mayor Beasley:
Commissioner Palmer:
CITY ATTORNEY Commissioner Newman:
Commissioner Sellars:
Page 2 of 2
Additions shown by underlinine and deletions shown by o efstrikiag.
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31, 2009
Maria IA.
Menendez, CMC
City Cl
rk
City of
South Miami
6130
unset Drive
South
Aiami, FL 33143
Elections
2700 NVV 87th Avenue
Miami, Florida 331.72
T305.499 -DOTE F,305- 499 -8547
TTY: 305- 499 -8460
miamidade.gov
Dear S. Menendez:
I am in receipt of the City ;of South Miami Resolution No. 220 -09- 13029, which
delegates the city commission duties as members of the canvassing committee to me
or my designee for the South Miami General Election scheduled for February 9, 2010.
Please be advised that as Supervisor of Elections,- I: am bound by the Election Laws
of the State of Florida, Florida Statute 102.141 states that the canvassing board shall
be composed of three: members, In addition, Opinion DE 05 -08 released by the
Divisimi of Elections states that -a "canvassing board may act in an official capacity
when a majority of the members are present, unless otherwise specified in statute or
rule," and that "generally the canvassing board may act when two members of the
board are present, thereby constituting a majority, as long as the two members
present are in agreement as to the action to be taken."
Since the above- mentioned resolution designates me as the sole member of the
canva sing committee, I am obligated to decline this appointment. Please review this
information as you delegate new members of your canvassing committee.
Shoulc you have any questions or require additional information, please feel free to
conta4 me directly or Christina White, Director, Office of Governmental Affairs at
cc:
17eparCment
e Feingold City Attorney,
Goldstein, City Attorney,
December 15, 2005
The Honorable Deborah Clark
Pinellas County Supervisor of Elections
315 Court Street, Room 117
Clearwater, Florida 33756 -4158
RE: DE 05 -08
Canvassing Boards; Required
Number of Members to take Official
Action; §§ 101.5612(2), and
102.141, 102.151, Florida Statutes
Dear Ms. Clark:
This is in response to your request for an advisory opinion regarding the number of canvassing board
members that are required to be present to take various actions under the Florida Election Code. You
are the Supervisor of Elections for Pinellas County and by law a member of your county canvassing
board. Pursuant to section 106.23(2), Florida Statutes, the Division of Elections has authority to issue an
opinion to you.
You have essentially asked how many canvassing board members are required to be present during or
are necessary to take the following official actions of the county canvassing board:
1. Public Testing of Absentee Ballot Tabulation Equipment;
2. Canvassing Absentee Ballots (Opening and Processing);
3. Election Night Tabulation (Ballot Duplication);
4. Canvassing of Provisional Ballots (Accept or Reject); and
5. Certifying Official Election Results?
Section 102.141, Florida Statutes, specifies who shall constitute the members of the county canvassing
board and outlines the duties of the board. While the statute is specific as to the three persons who shall
serve as canvassing board members, i.e., the county supervisor of elections, a county judge and the chair
of the board of county commissioners, it is silent with regard to the actual number of members of the
board that must be present to conduct the official business of the board. However, the Attorney General
has previously opined in AGO 050 -248 that a canvassing board may act in an official capacity when a
majority of the members are present. Therefore, unless otherwise specified in statute or rule, the
canvassing board may act when two members of the board are present, thereby constituting a majority,
The Honorable Deborah Clark
December 15, 2005
Page 2
as long as the two members present are in agreement as to the action to be taken. If they are not in
agreement, then a majority of the board has not approved the action.
Let us now take these principles and apply them to the specific canvassing board actions about which
you inquire.
The public testing of voting equipment is governed by section 101.5612, Florida Statutes. As you note
in your inquiry, section 101.5612(2), Florida Statutes, specifically provides, "For the test, the canvassing
board may designate one member to represent it" However, that same section also requires that the
canvassing board shall convene and that each member of the canvassing board shall certify to the
accuracy of the test. Therefore, for any public testing conducted pursuant to section 101.5612, Florida
Statutes, including the testing of absentee ballot tabulators, the canvassing board may designate one
member to be present, i.e. represent it, at the actual testing, but all members of the canvassing board
must certify to the accuracy of the test.
The canvassing of absentee ballots, i.e., the opening and processing of absentee ballots, is governed by
sections 10 1.68, 101.6925 and 102.141(2), Florida Statutes. There being no specific provision contained
therein to the contrary, the board action of approving and ordering the opening and processing of the
absentee ballots requires that a majority of the members of the canvassing board be present. Once
approved and ordered, the clerical work of actually opening the absentee ballots and running them
through the tabulators may be done with at least one member of the canvassing board present at all times
pursuant to section 102.141(7), Florida Statutes.
Election night ballot duplication is governed by sections 101.5614(5) and 101.68, Florida Statutes.
There being no specific provision contained therein to the contrary, this board action requires that a
majority of the members of the canvassing board be present to approve the duplicate ballots. Again, the
clerical activity of creating the duplicate ballot for approval by the canvassing board may be done with
only one member of the canvassing board present pursuant to section 102.141(7), Florida Statutes.
The canvassing of provisional ballots, i.e., determining whether to accept or reject, is governed by
sections 101.048, 101.049, 101.6925 and 102.141(2), Florida Statutes. There being no specific
provision contained therein to the contrary, this board action requires that a majority of the members of
the canvassing board be present.
The certification of the official election results by the canvassing board is governed by section 102.151,
Florida Statutes. There being no specific provision contained therein to the contrary, this board action
requires only a majority of the members of the canvassing board. Therefore, the certificate can be
signed by just two canvassing board members.
You also ask if the answers to these questions would be the same for a municipal canvassing board if the
municipality has adopted the Florida Election Code and there are no municipal charter provisions or
ordinances that specifically address these municipal canvassing board actions. The answer to this
question is yes.
The Honorable Deborah Clark
December 15, 2005
Page 3
SUMMARY
A canvassing board may act in an official capacity when a majority of the members are present, unless
otherwise specified in statute or rule. Therefore, generally the canvassing board may act when two
members of the board are present, thereby constituting a majority, as long as the two members present
are in agreement as to the action to be taken. If they are not in agreement, then a majority of the board
has not approved the action. However, for any public testing conducted pursuant to section 101.5612,
Florida Statutes, the canvassing board may designate one member to be present, i.e. represent it, at the
actual testing, but all members of the canvassing board must certify to the accuracy of the test.
Additionally, once a majority of the canvassing board members has approved and ordered the opening
and processing of absentee ballots, the clerical work of actually opening the absentee ballots and running
them through the tabulators may be done with at least one member of the canvassing board present at all
times. Finally, the certification of the official election results by the canvassing board can be signed by
just two members of the canvassing board. These answers would also apply to a municipal canvassing
board if the municipality has adopted the Florida Election Code and there are no municipal charter
provisions or ordinances that specifically address these municipal canvassing board actions.
Sincerely,
Dawn K. Roberts
Director. Division of Elections
Prepared by:
Sharon D. Larson
Deputy General Counsel
DKR/SDL /nw
Page 1 of 1
Menendez, Maria M.
From: White, Christina (Elections) [bacogc @miamidade.gov]
Sent: Monday, January 04, 2010 10:08 AM
To: Menendez, Maria M.; Feingold, Laurence; markgoldstein98 @yahoo.com
Cc: Sola, Lester (Elections)
Subject: Canvassing Board Duties for the February 9, 2010 Election
Attachments: Letter to SM City Clerk re 2_9_10 CB duties.pdf, DOE opinion DE 05- 08.pdf
Maria,
On behalf of Lester Sole, please see the attached letter and enclosure. The hard copies were sent to you
and the city attorneys in Thursday's mail. You should be receiving them shortly. Please let me know if you
have any questions. Thank you.
Best Regards,
Christina White
Director, Office of Governmental Affairs
Miami -Dade Elections Department
305.499.8403
305.499.8501
1/4/2010