Fort Walton Beach Council agenda — 09-16-08 workshop agenda — reading text

2 E o • 0 E M i = ' r O O O O C Eo 0 .Q U O Q cna) a cn  cri a co a- Q C W_ W Cc m W m Q C)  RIQ n TONI L CRAIG OFFICE ADDRESS: ATTORNEY AT LAW 105 Lewis St k Fort Walton Beach FL 32547 CER su PHONE: ( 850) 243 -6969 City, County, Local Government Law MAILING ADDRESS: FAX: ( 850) 244 -8929 908 Pineview Blvd E -MAIL: tonicraig@coX. net Fort Walton Beach FL 32547 WEB SITE: www.tonicraig.info 15 September 2008 To: Mayor & Council CC: City Manager City Clerk Finance Director Memorandum of Opinion Re: Majority Vote of All Council Members The City Council has reviewed the City Charter over a series of meetings. There have been eight issues raised through those meetings and on September 16, Council will review Miscellaneous Provisions, §§ 57 —74 to determine if there could be further need for revision of those sections. This memorandum is my opinion about which Charter sections can be amended through ordinance of the Council, referendum, or should be deleted as contrary to Florida constitutional and statutory law. Statement of law Section 166.021, Fla. Stats. ( 2007), provides: 1) As provided in s. 2( b), Art. VIII of the State Constitution, municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law. 2) " Municipal purpose" means any activity or power which may be exercised by the state or its political subdivisions. 3) The Legislature recognizes that pursuant to the grant of power set forth in s. 2( b),Art. VIII of the State Constitution, the legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except: a) The subjects of annexation, merger, and exercise of extraterritorial power, which require general or special law pursuant to s. 2( c), Art. VIII of the State Constitution; b) Any subject expressly prohibited by the constitution;  c) Any subject expressly preempted to state or county government by the constitution or by general law; and d) Any subject preempted to a county pursuant to a county charter adopted under the authority of ss. 1( g), 3, and 6( e), Art. VIII of the State Constitution. 4) The provisions of this section shall be so construed as to secure for municipalities the broad exercise of home rule powers granted by the constitution. It is the further intent of the Legislature to extend to municipalities the exercise of powers for municipal governmental, corporate, or proprietary purposes not expressly prohibited by the constitution, general or special law, or county charter and to remove any limitations, judicially imposed or otherwise, on the exercise of home rule powers other than those so expressly prohibited. However, nothing in this act shall be construed to permit any changes in a special law or municipal charter which affect the exercise of extraterritorial powers or which affect an area which includes lands within and without a municipality or any changes in a special law or municipal charter which affect the creation or existence of a municipality, the terms of elected officers and the manner of their election except for the selection of election dates and qualifying periods for candidates and for changes in terms of office necessitated by such changes in election dates, the distribution of powers among elected officers, matters prescribed by the charter relating to appointive boards, any change in the form of government, or any rights of municipal employees, without approval by referendum of the electors as provided in s. 166.031. Any other limitation of power upon any municipality contained in any municipal charter enacted or adopted prior to July 1, 1973, is hereby nullified and repealed. 5) All existing special acts pertaining exclusively to the power or jurisdiction of a particular municipality except as otherwise provided in subsection ( 4) shall become an ordinance of that municipality on the effective date of this act, subject to modification or repeal as other ordinances. Analysis Therefore, in analyzing each section for amendment, I have considered the following factors: 1. Does the provision limit the City' s exercise of home rule powers? 2. Does the provision relate to annexation, merger, and exercise of extraterritorial power, which require general or special law pursuant to s. 2( c), Art. VIII of the State Constitution? 2. Does the provision relate to any subject expressly prohibited by the constitution? 3. Does the provision relate to any subject expressly preempted to state or county government by the constitution or by general law ?' 4. Does the provision relate to the exercise of extraterritorial powers or which affect an area which includes lands within and without a municipality?  5. Does the provision relate to a special law or municipal charter which affect the creation or existence of a municipality? 6. Does the provision relate to the terms of elected officers and the manner of their election except for the selection of election dates and qualifying periods for candidates and for changes in terms of office necessitated by such changes in election dates? 7. Does the provision relate to the distribution of powers among elected officers? 8. Does the provision relate to appointive boards? 9. Does the provision relate to any change in the form of government? 10. Does the provision relate to any rights of municipal employees? If question 1 can be answered " yes," and questions 2 -10 can be answered " no," the provision can be repealed or amended by ordinance or resolution of the Council. Conclusion Charter Section or Provision Method of Amendment 1 Section 4A Referendum Section 5 2 Date of Election Ordinance 3 Not less frequently than twice a month "" Ordinance 4 Call of special meeting Ordinance 5 Provisions of notice Ordinance 6 Meetings open to public Ordinance 7 Citizens right to " reasonable opportunity to Ordinance be heard " 8 Waiver of notice Ordinance 9 Section 6 "' Referendum 10 Section 8 Ordinance Section 15 11 First sentence Referendum 12 Second sentence Ordinance Section 16 Referendum 13 Section 20 Ordinance (so long as consistent with remainder of charter) 14 Section 53 Ordinance Miscellaneous Provisions 15 Section 57 Duplicates Fla. Law 16 Section 58 No change, historical only Section 60 17 a) Generally, ordinance to  clarify 18 b) Ordinance 19 c) Duplicates Fla. Law 20 d) Historical 21 e) Ordinance 22 Section 62 Historical 23 Section 63 Historical 24 Section 64 Necessary for construction of charter 25 Section 67 Historical 26 Section 68