What happens when Mayor John Rees violates the city charter?

Last week, I posted a story about Winter Garden’s vote to hold a January forfeiture hearing to determine whether District 2 Commissioner Ron Mueller would lose his commission seat for violating the city charter.

The 4 to 1 vote in favor of the hearing was based on a collective read of Mueller’s emails from his three years in office. The emails were assembled by City Manager Jon Williams at the request of District 1 Commissioner Lisa Bennett. Bennett claims she’s fielded complaints that Mueller lobbied for downtown events, talked to people in her district and, allegedly, threatened to fire city staff. If true, that would be a violation of the city charter. Attempting to influence the hiring and firing of city employees is one of three specified prohibitions that can get a commissioner a one-way ticket off of the commission.

[Disclosure: Mueller, who is up for re-election in March, has donated to VoxPopuli in the past as has District 2 challenger Iliana R. Jones. Endorsed by Bennett, Jones lost to Mueller in the 2021 election.]

After reading through the binder of emails myself, I asked a commissioner what he found in Mueller’s emails that he felt warranted a forfeiture hearing. He didn’t want to say too much because of the pending litigation. But he urged me to read the city charter. Then, he said, I’d understand.

So I took a look at the Winter Garden city charter. And, yessir, I learned some stuff.

I discovered, for instance, that Winter Garden Mayor John Rees also has some issues with the charter that warrant a closer look.

The office of Winter Garden Mayor has just three job responsibilities that are specifically spelled out in the city charter. One of them is to “present an annual state of the city message.” This isn’t a “maybe I will, maybe I won’t” kind of deal either. It’s mandatory. The charter says:

The mayor-commissioner shall preside as chairperson of meetings of the commission, represent the city in intergovernmental relationships, present an annual state of the city message, and perform other duties as specified by the commission.

The key word in there is “shall.” Cornell University Law School’s Legal Information Institute explains that “Shall is an imperative command, usually indicating that certain actions are mandatory, and not permissive." In the Winter Garden city charter "shall" and "may" are used to distinguish which actions are obligatory and which have some wiggle room.

Just to make sure I was reading the passage correctly, I checked with Clifford Shepard, the board-certified government law specialist and founding partner of the Maitland firm Shepard, Smith, Kohlmyer and Hand. He confirmed that "shall" is mandatory in this context.

Know how many state of the city messages Rees delivered during his 13-year tenure? Zero.

I know this because I knocked on the mayor’s door and asked him when he had last shared this mandatory state of the city message with the citizens of Winter Garden. He said, “Never!” Then he slammed the door in my face. Well, first he told me to have a good day. Then he slammed the door in my face. Never let it be said that the mayor is not polite.

Now, it’s possible to argue that the state of the city message is merely a marketing tool for the city. Kelly Gemmer, the communications director for Florida League of Cities in Tallahassee, describes the annual address as “an opportunity to highlight past achievements and state certain goals for the upcoming year.” She says folks can get creative with the project. Exhibit A is this beauty put together by Ocoee, featuring Mayor Rusty Johnson and various city staff. You can tell they had some fun with the drone video. 

You could also make the case that the Budget Message, penned by the city manager and included in the annual budget book, essentially covers the same ground, though Shepard maintains that a budget message does not meet the charter requirement.

But there’s one more argument, and it’s not only the ethical, principled one, it’s the legal one.

A city charter is a law, just like a statute or an ordinance, Shepard explains. “When you get sworn into office, you swear that you will follow the laws of the State of Florida and the city and the Constitution of the United States. So when you are not doing something the charter specifies that you're supposed to do, that's a law, and you're violating it.”

That right there, Shepard says, is the basis for a recall. 

A recall election. Ponder that for a moment. 

Will that happen? Eh, probably not. 

It’s doubtful anyone would get exercised enough about not hearing a state of the city message to mount a recall campaign, Shepard says. “Even though technically speaking, it is a violation of the charter, so that would constitute malfeasance, so that is legal ground to seek a recall.”

Rees could probably survive a recall, however unlikely. Among the slender slice of Winter Garden’s population that turns out to vote in municipal elections, he’s a popular mayor. He was unopposed last year when he ran for his sixth term. He has not had a challenger since 2014.

“Everybody likes the mayor,” his wife told me as I waited for Rees to come to the door. Even I find the mayor charming and he can’t stand me or this publication.

So what’s the point here? That the city charter isn’t meant to be cherry-picked. To prosecute Mueller for allegedly violating the charter and not hold the mayor to the same standard for avoiding a key job responsibility smacks of hypocrisy. We don’t enforce some parts of the charter and not others. And we don’t enforce the charter for some people and let others skate.

“It’s not ethical to pick and choose which parts of the charter you’re following,” Shepard says. Though he added, “It’s not surprising that this aspect of the charter wouldn’t be treated as seriously as other aspects of the charter.”

Did Ron Mueller violate the charter? We don’t know. That’s what the January forfeiture hearing is meant to determine. Meanwhile, we do know that Mayor John Rees has violated the charter because he told us that he's “never” delivered a state of the city message. He's been mayor for 13 years. Shall we call that 13 counts of avoidance?

If we are all equal before the law — and we are — the same standards need to apply. We can’t only call for enforcing the charter when faced with a political opponent. We have to decide to enforce the charter with our friends — citizens, commissioners, and the mayor.