12-18-07 Item 13From: Luis Figueredo, City Attorney Re: The Canvassing Committee
During the Commission Meeting on December 4, 2007, a question was raised concerning the
legality of a resolution which proposes delegating the canvassing responsibility to the Miami Dade
County supervisor of elections. The basis for the question is that the City Charter specifically
provides under Article 5, Section 5(B), entitled "Canvassing Committee" that:
"Upon the closing of the polls and the casting of the ballot by the last person then entitled to
vote, the Canvassing Committee, comprised of the majority of the Commission and the City
Clerk shall publicly record the result of the election and proceed to tabulate the absentee
ballots and certify the results ".
Three (3) members of the City Commission are running for re- election. Due to the fact that
the majority of the City Commission is running for re- election, the City Commission cannot serve on
the Canvassing Committee, as there would be an inherent conflict in serving on the Canvassing
Committee. Consequently the City is not in a position where it can comply with the requirements
contained in the City Charter.
The City Charter also specifically provides under Article 5, Section 5 (A), entitled
"Procedures" that:
"The City Commission shall provide, by ordinance, for the procedures of elections not
inconsistent with State laws and /or Metropolitan Dade County Home Rule Amendment and
Charter, except as specified herein."
In compliance with Article 5, the City Commission enacted Chapter 9 of the City Code of
Ordinances, entitled "Elections" which specifically provides the procedures for general and special
elections and, which ensures that elections are to be conducted in accordance with the laws of
Florida.
Florida law at Section 102.141, Florida Statutes, entitled "County Canvassing Board; Duties"
addresses instances in which members of the canvassing board are unable to serve. One specific
instance where a member on the Canvassing Board is unable to serve occurs when the member is a
candidate for election. The statute contemplates that the supervisor of elections for the applicable
Memo to Mayor,
City Commission and City Manager
December 5, 2007
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county may be delegated the responsibilities of the canvassing committee. Accordingly, the City's
resolution, which was the subject of this inquiry, is consistent with the options presented under State
law as Chapter 9 specifically incorporates the options provided under Florida law where members of
the commission are unable to serve.
In conclusion, the Charter specifically provides that a majority of the commission is to serve
on the canvassing board. However, since three (3) members of the Commission are running for re-
election the City cannot comply with the canvassing board composition required by the Charter. The
City Charter specifically provides that the City is charged with promulgating regulations which are
consistent with the State and County election regulations. Chapter 9 of the Code of Ordinances
specifically incorporates State election laws. State election laws address instances in which there are
conflicts, thus prohibiting commissioners from serving on the canvassing board. Based upon the
foregoing, the resolution proposed by the City Clerk is consistent with the acceptable alternatives for
the Canvassing Board where conflicts arise. As the City of South Miami specifically adopted the
State election laws the subject resolution delegating the supervisor of elections the responsibility for
overseeing the canvassing committee, the resolution, as drafted, does not violate the City Charter.
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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 12, 2008 GENERAL ELECTION; 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 12, 2008, 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 12, 2008 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 1 of 2
Additions shown by underlining and deletions shown by eeril�ing.
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Section 2. This resolution shall take effect immediately upon approval.
PASSED AND ADOPTED this 18th day of December, 2007.
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM:
CITY ATTORNEY
Page 2 of 2
APPROVED:
MAYOR
COMMISSION VOTE:
Mayor Feliu:
Vice Mayor Wiscombe:
Commissioner Palmer:
Commissioner Birts:
Commissioner Beckman:
Additions shown by underlining and deletions shown by evef .
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 12, 2008 GENERAL ELECTION; 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 12, 2008, 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 12, 2008 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 1 of 2
Additions shown by underlining and deletions shown by evefstf3lEin .
Section 2. This resolution shall take effect immediately upon approval.
PASSED AND ADOPTED this 18th day of December, 2007.
ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM:
CITY ATTORNEY
Page 2 of 2
APPROVED:
MAYOR
COMMISSION VOTE:
Mayor Feliu:
Vice Mayor Wiscombe:
Commissioner Palmer:
Commissioner Birts:
Commissioner Beckman:
Additions shown by underlining and deletions shown by evefstfikin .