Oliver lawsuit leads to additional charter amendment proposals

The Ocoee City Commission voted  4 to 1 Tuesday to proceed with a second reading of three new charter amendments that would secure the commission’s authority to interpret and enforce the charter, determine a candidate’s qualification’s for office and prevent candidates from running for a seat they vacated earlier in the term. 

These amendments are in addition to 13 amendments developed by the Charter Review Commission that are now on the March 19 ballot.

The second reading of the proposed amendments, which will include public comment, will be held March 5. Voters will consider these amendments during the general election on Nov. 5.

City Attorney Rick Geller explained these additional amendments grew out of the decision in the lawsuit filed by former District 4 city commissioner George Oliver III in Orange County’s Ninth Circuit Court. That lawsuit challenged the commission’s decision to disqualify him from the March 19 ballot. 

The commission had argued that Oliver was not qualified to run for his old seat because the “successor” to the seat was a separate individual and could not be the one who vacated the seat.

The court never addressed the successor issue, Geller explained. Instead the court focused on what the attorney described as Circuit Court Judge Brian Sandor’s “narrow reading” of the limits of the commission’s authority.

“The circuit judge held that this commission did not have authority, did not have the authorization to judge the candidacy of the former commissioner,” Geller said. 

Then he read from the court decision. “It says the city charter does not give the city the right to judge the qualifications of candidates. Section C-10 of the city charter states, “The city commission shall be the judge of the election and qualifications of its members, which he bolded, and of the grounds for forfeiture of office. It is clear that Plaintiff is not a member of the city commission and therefore the city commission is not the judge of his qualifications as a candidate.”

The city did not appeal that decision. Oliver faces Nate Robertson in the March 19 election. 

[See our 2024 Election Guide for info about mail-in ballots, early voting and candidate profiles.] 

If passed by voters in November, the new proposed amendments would erase the distinction between candidates and members of the commission in the charter and assert the commission’s authority over both with clear language.

“We really spell it out,” Geller said.

This is how the amendments were presented during Tuesday's first reading:

• The City Commission has the authority to interpret and enforce the provisions of this charter, which shall be binding unless such interpretation and enforcement is held by a court of competent jurisdiction, including after any appeals to be clearly erroneous, arbitrary, capricious, or otherwise unconstitutional.

“One of the arguments that I made [to the court] was that you all have an inherent authority to interpret and enforce your own charter, and yet the order issued by the court has placed that in doubt,” Geller explained. “So this language would make very clear that you, in fact, have that authority. I believe it is implied by the city's Home Rural Authority under both the Florida Statute and the Florida Constitution, but this would embody in the charter very clearly that you certainly would have that authority.”

• The City Commission shall be the judge of the qualifications and eligibility of candidates for the City Commission, the election and qualifications of its members and the grounds for forfeiture of their office under this charter.

 

"The amendment would also state that the commission has power to establish procedural rules for implementing this section, ensuring due process, including reasonable notice to all affected parties, and that decisions would be subject to review by a court of competent jurisdiction on a writ of certiorari," Geller said.

 

• The existing language says that a successor shall serve for the unexpired term of a member who created a vacancy. And then it would then say, a member who resigns from their office cannot thereafter seek election to any part of the same term of office from which the member resigned.

“Making it crystal clear that that is how you all view the charter, or at least how the public would view the charter if they were to approve of that,” Geller said.

Hart was the sole commissioner to vote against going the first/second reading route rather than have the Charter Review Committee, which drafted the 13 amendments on the March 19 ballot, workshop the amendments and then present them to the commission for consideration. 

“That way no one can accuse the commission of doing anything trying to change the process that we have in place,” Hart said during the discussion. But he was outvoted. 

Both District 2 Commissioner Rosemary Wilsen and Mayor Rusty Johnson wanted to hear directly from residents during public comments at the second reading. “If the public has any comments on it, that's where I'd like to see it done,” said Johnson.

Geller said that if substantial changes were made, there could even be a third reading of the amendments.

Related Stories 

• Barred from ballot, former Ocoee comm sues city clerk, Orange County supervisor of elections

• Former Ocoee commissioner wins lawsuit to gain access to March ballot

• Ocoee officials green light final language for city charter amendments