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Home My WebLink AboutSubmittal-City Attorney-Legal Opinion - MDC Sec. 12-23CITY OF MIAMI OFFICE OF THE CITY ATTORNEY MEMORANDUM Submitted into the public recor for item(s) j'F. . on . 14. Z.Q City Clerk TO: Honorable Commissioner Joe Carolio District 3 FROM: Victoria Mendez DATE: August 13, 201 RE: torney Whether Section Section 12-23 of the MiaF'ni-Dade County Code of Ordinances applies to the City initiative petition submitted by Miamians for an Independent and Accountable Mayor's Initiative, Inc. You have asked for my opinion on substantially the following specified question of law: I. Question WHETHER SECTION 12-23 OF THE MIAMI-DADE COUNTY CODE OF ORDINANCES ("COUNTY CODE") APPLIES TO A CITY INITIATIVE PETITION ("PETITION") SUBMITTED BY MIAMIANS FOR AN INDEPENDENT AND ACCOUNTABLE MAYOR'S INITIATIVE, INC. ("THE MIAMIANS"). II. Brief Answer Because the Miamians have undertaken compliance with Section 12-23 of the County Code, Section 12-23 applies to the Petition. III. Legal Analysis State and local laws Under both state law and the County Charter, electors have a right to attempt to amend a municipal charter through an initiative petition process. Section 166.031, Florida Statutes states: The electors of a municipality may, by petition signed by 10 percent of the registered electors as of the last preceding municipal general election, submit to the electors of said municipality a proposed amendment to its charter, which amendment may be to any part or to all of said charter except that part describing the boundaries of such municipality. The governing body of the municipality shall place the proposed amendment contained in the ordinance or petition to a vote of the electors at the next general election held within the municipality or at a special election called for such purpose. 166.031(1), Fla. Stat. Section 6.03 of the County Code, states: 4(A)--Sioo A4+-0 11 Opiniu —P/U is-25 Honorable Conamissioner Joe Carollo, District 3 Re: Application of Section 12.23 of County Code to City Initiative Petitions August 13, 2018 Page 2 Except as provided in Section 6.04, any municipality in the county may adopt, amend, or revoke a charter for its own government or abolish its existence in the following manner. Its governing body shall, within 120 days after adopting a resolution or after the certification of a petition of ten percent of the qualified electors of the municipality, draft or have drafted by a method determined by municipal ordinance a proposed charter amendment, revocation, or abolition which shall be submitted to the electors of the municipalities. Unless an election occurs not less than 60 nor more than 120 days after the draft is submitted, the proposal shall be submitted at a special election within that time. The governing body shall make copies of the proposal available to the electors not less than 30 days before the election. Alternative proposals may be submitted. Each proposal approved by a majority of the electors voting on such proposal shall become effective at the time fixed in the proposal. § 6.03, Miami -Dade County Charter. Further the Code of the City of Miami, Florida, as amended ("City Code") recognizes this right in Section 2-112, which states: (a) The city attorney shall draft, with the assistance of any individual the city attorney deems necessary, a Charter amendment within 120 days after the city commission adopts a resolution directing the city attorney to prepare such amendment or after the certification of a petition of ten percent of the qualified electors of the City of Miami requesting such amendment. (b) The Charter amendment drafted by the city attorney shall be approved in final form by the city commission in a resolution calling for a special election upon the amendment. The resolution calling for the special election shall include the text of the amendment draft approved by the city commission, and such draft shall be deemed submitted to the electorate by the adoption of said resolution. (c) A special election upon said amendment shall occur not less than 60 nor more than 120 days after the draft is submitted. § 2-112, City Code.' Section 12-23, Miami -Dade County Code Section 12-23, titled "Initiative, referendum and recall petitions —Verification of signatures; disqualification of non -complying petitions; prohibition on improper signature gathering practices" provides a County process for similar initiative, referendum, and recall petitions in the County, and states initially that: No person may circulate a petition or solicit signatures unless he or she is a registered elector in Miami -Dade County. 1 This is the only section of the City Charter or City Code that addresses the charter initiative process. ac cr Honorable Commissioner Joe Carollo, district 3 Re: Application of section 12-23 of County Code to City initiative Petitions August 13, 2018 Page 3 12-23(1), County Code. Section 2 of 12-23, titled "Form of Petition," states: "All petitions for initiative, referendum, and recall submitted pursuant to Article 8 of the Miami -Dade County Home Rule Charter shall be in I2-point font with no more than one signature per page and in a format determined by the Supervisor of Elections; providing, however, each petition shall contain the following information ... D. A sworn statement that the circulator personally circulated the petition, witnessed each signature as it was being written and that to the best information and belief of the circulator, each signature is the genuine signature of the person whose name it purports to be. E. A sworn statement signed by the circulator certifying to the truthfulness and the correctness of the certificate set forth in Section (I)(D) hereof; stating that it is being given under penalty of perjury under the laws of the State of Florida; and setting forth the date and the place of execution of the certification. 12-23(2), County Code. Because the City does not have an initiative process codified, Section 12-23 of the County Code (as well as the applicable provisions of state statutes) must be reviewed in order to proceed. Miamians Availed themselves of Section 12-23 Here, however, Section 12-23 applies to the Petition because the face of the petition, the letter sent by the petitioners with their initial submission of the petition, and counsel for the petitioners, Ms. Blohm, during the August 6, 2018 Special Commission Meeting, all reference Section 12-23 as controlling. Letter to the Clerk The April 16, 2018 letter from the petitioners' attorney to the City Clerk, enclosing its proposed petition format, states that the petition is being submitted "[p]ursuant to section 12-23 of the Miami -Dade County Code of Ordinances." The Petition The circulator certificate on the petition itself states: "I certify to the truthfulness and the correctness of the certificate set forth in section 12-23 of the Code of Miami -Dade County hereof under penalty of perjury...." Honorable Commissioner Joe Carollo, District 3 Re: Application of Section 12-23 of County Code to City Initiative Petitions August 13, 2018 Page 4 Record Testimony Finally, during the August 6, 2018 Special Commission Meeting, the attorney for the petitioners had the following exchange with Commissioner Joe Carollo: Commissioner Carollo: Okay. So this is what you're going on, 12-23 Ms. Blohm: This was -- Commissioner Carollo: -- and this is what you followed? Ms. Blohm: -- the process that we based the petition from. Commissioner Carollo: So you based the petition on 12-23, and you followed that whole process? Ms. Blohm: And actually -- 1 -- this does not look like the most recent section of -- Commissioner Carollo: This is the -- Ms. Blohm: This is the most recent? Commissioner Carollo: -- most recent section that — Ms. Blohm: Then, yes. Draft Minutes at 15-16. Miamians Adopted A Circulator Residency Requirement Even if it were determined that 12-23 did not apply, the language of the circulator certificate on the Petition states: "1, residing at am a resident of Miami -Dade County." At a minimum, any petition circulated by someone who is not a Miami -Dade County resident, as stated in the attestation, would contain a false certificate. The use of a false certificate would be cause to invalidate a Petition, thus warranting further investigation. As the Miamians have voluntarily submitted to the provisions of Section 12-23, the further review conducted by the County Supervisor of Elections —which determined that close to 40% of the circulators of the Petition could not be confirmed as registered voters of the County — constitutes a reasonable basis mandating additional review per section 12-23 because further review by the County Supervisor of Elections could reasonably and properly determine whether those circulators are electors of Miami -Dade County, and whether the Petition is properly before the City Commission. IV. Conclusion Based on the foregoing, the petitioners have undertaken compliance with Section 12-23 and that Section applies accordingly. Under Section 12-23(1), the Petition should be reviewed to ensure compliance with the circulator registration requirement in that Section. Therefore, the County Supervisor of Elections or the City Clerk should review the Petitions for compliance with Section 12-23. f7