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Volusia County’s legal battle to prevent a new Florida constitutional amendment from wreaking havoc on its home-rule charter will continue, but the effort may be on life support.

By the narrowest of margins, the County Council March 19 decided to appeal a Leon County circuit judge’s ruling that denied Volusia County’s motion for a summary judgment in the county’s suit to save its 48-year-old charter.

The County Council voted 4-3 to take the county’s case to a state appellate court, and possibly to the Florida Supreme Court, to keep Volusia from having to implement Amendment 10.

That provision, approved by a supermajority of the state’s voters last fall, requires some of the county’s key officials to be designated as constitutional officers and gives them newfound power.

“It renders invalid the charter,” County Attorney Dan Eckert said, regarding Amendment 10.

The Leon Circuit Court denied Volusia’s motion for summary judgment, asking that Amendment 10 not be applied to Volusia County, whose special status as a charter county is protected by the state constitution.

The case now goes to the 1st District Court of Appeal.

The lawsuit filed by Volusia County includes two other plaintiffs: Dr. T. Wayne Bailey, an emeritus professor of political science at Stetson University, and Dr. P.T. Fleuchaus, a retired dentist and former County Council member.

Both Bailey and Fleuchaus were architects of Volusia County’s charter.

Eckert said he had filed the suit in Leon County because Tallahassee, Florida’s capital city, is there.

The case is a complex one with many moving parts:

— A majority of Volusia County’s voters adopted a charter that changed the form of county government and made it different from the government of other counties. The June 30, 1970, referendum was a way for Volusia to take advantage of a provision in the state’s 1968 constitution — the first since Reconstruction — that permitted counties to establish home rule and a council-manager type of government similar to that used in many cities and counties elsewhere in the country.

— Volusia County’s home-rule charter went into effect Jan. 1, 1971. The five-member County Commission gave way to the seven-member County Council. Under the charter, the council was a legislative and policymaking body, whose members had no administrative authority. The council became responsible for hiring — and possibly firing — the county manager, a professional administrator who would be in charge of the day-to-day operation of the county government.

Council members were forbidden from engaging in or interfering in the administrative staff’s work and duties. If a council member violates the very strict separation of powers set forth in the charter, he or she could be removed from office.

— Another change in Volusia County’s government was that certain elected officials ceased to be constitutional officers. Constitutional officers answer to the state’s governor, and they have a great deal of leeway in budgeting, hiring their personnel, and operating their agencies. The sheriff, elections supervisor and property appraiser lost their constitutional status and became elected department heads, supervised by the county manager.

— If Amendment 10 goes into effect in Volusia County, the sheriff, elections supervisor and property appraiser will become constitutional officers anew and acquire autonomy in running their agencies. In addition, the county will revive the office of elected tax collector.

If the officials become constitutional officers, they could make many of their own decisions in personnel matters, including the size of their workforces, office space and locations, and purchasing. That autonomy may have an effect on the county’s overall budget and taxes.

— Amendment 10 became law in Florida last fall, almost a half-century after Volusia County’s voters adopted their home-rule charter. Which one is the supreme law in Volusia County? The charter that was in effect before the amendment, or the constitutional amendment?

— The debate becomes more intense when the question of the popular will is added to the mix.

“Let the people vote if they want to change the charter,” Volusia County Chair Ed Kelley said.

Council Member Ben Johnson, still perhaps better known as the county’s former high sheriff, offered an assessment of the statewide and local vote on Amendment 10.

“I don’t care what 63 percent of the state of Florida says,” Johnson said, alluding to the overall supermajority support for the ballot proposition. “I care about the 53 percent [in Volusia County] that voted for it. … It’s splitting community. I’m going to have to go with the 53 percent [in the county favoring the amendment], and it’s one of the toughest decisions I’ve ever had to make.”

— Moreover, just as the constitutional officers in Florida’s non-charter counties run with political-party labels, partisan elections will return to Volusia County if the courts rule Amendment 10 applies in the county.

— Amendment 10 was the work of Florida’s Constitution Revision Commission, an ad hoc body that appears every 20 years and whose members are appointed by the governor and the Legislature. The CRC has a great deal of latitude in crafting proposed amendments and the ballot language in support of them.

Amendment 10 contained a set of several and varying subjects, including ensuring the continuance of a state Department of Veterans Affairs, setting the times when the Legislature would convene its general sessions, and establishing a state agency for counter-terrorism — as well as declaring the sheriff and other elected county officials as constitutional officers.

That combining of subjects in a single ballot proposition may have confused voters, critics say. Thus, for example, people who advocate for veterans’ issues probably would not vote down an amendment ensuring a veterans agency would continue to exist.

County Council Member Fred Lowry said he had encountered confusion on the part of voters before the election.

“I did not find one single person who understood Amendment 10, and that we would create a new office of tax collector,” Lowry added. “People didn’t know what was involved in that amendment.”

An opposite conclusion came from freshman County Council Member Barbara Girtman.

“I feel that many of the people did understand it,” she said. “The people voted.”

— Eckert argues Amendment 10 should be applied prospectively, rather than retroactively. In other words, Volusia County’s charter was in effect before the Florida Constitution was changed, and the voter-approved 1970 charter should be pre-eminent in the county. The later constitutional amendment should only apply, according to Eckert, in counties with similar conflicts going forward, rather than looking backward.

In any case, the council became a house divided on whether to go further up the court system. Council Members Johnson, Girtman and Heather Post supported dropping the lawsuit over Amendment 10, but they were outvoted by Kelley, Deb Denys, Lowry and Billie Wheeler.

While Volusia County’s lawsuit challenging Amendment 10’s validity within the home-rule county works its way through the judicial system, the county’s leadership is preparing for the worst-case scenario.

County Manager George Recktenwald says he has formed a transition committee of key department heads to consider how to implement the amendment, if the appeal fails and the courts rule the constitutional amendment trumps the county’s charter. Recktenwald said the would-be constitutional officers themselves will be included in the planning at a later date.


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