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After repeated losses in its battle to keep Volusia County’s 50-year-old home-rule charter government intact, the County Council decided Aug. 25 to stop its legal fight against a Florida constitutional amendment that overrides the charter.

“I’m not for moving forward with this,” County Council Member Heather Post said.

Her colleagues agreed not to appeal the case to the Florida Supreme Court.

The issue may not be completely dead, however, as two of the co-plaintiffs could continue the legal fight on their own and at their own expense.

Dr. T. Wayne Bailey, a Stetson University political scientist emeritus, and Dr. P.T. Fleuchaus, a retired dentist and former County Council member, were architects of the charter. The two men joined county government in the effort to stop Amendment 10 from being placed on the ballot, and later, to prevent its implementation in Volusia County.

“We have asked a constitutional lawyer in Gainesville to review all of the documents and to give us his opinion,” Bailey told The Beacon in a telephone interview.

Bailey said “home-rule democracy” is the main issue.

“We’ll have to see what the constitutional lawyer in Gainesville has to say,” Bailey said.

The County Council unanimously, if somewhat reluctantly, scrapped the idea of asking the Florida Supreme Court to reverse a lower-court decision.

The county’s latest defeat came Aug. 17, when the 1st District Court of Appeal in Tallahassee ruled against the county and upheld Amendment 10’s constitutional-officer status for four elected officials: property appraiser, sheriff, elections supervisor, and a new official created by the amendment, tax collector.

The decision came 10 1/2 months after then-County Attorney Dan Eckert delivered oral arguments against applying Amendment 10 to Volusia County. The court handed down its ruling one day before the Aug. 18 primary and the election of the county’s first tax collector in many years.

“Amendment 10 takes effect Jan. 5,” County Attorney Mike Dyer reminded the County Council.

On that date, the elected department heads within the county administrative hierarchy will become constitutional officers.

Constitutional officers stand apart from the county manager and may wield authority over their own agencies in matters of personnel, finance, purchasing, legal counsel and even, perhaps, office locations and hours of operations.

Constitutional officers answer to the governor, instead of the county manager or County Council, and they may appeal to the governor if they are not satisfied with the budgets set for them by elected county officials.

Volusia County’s 2-year-old legal battle began even before the 2018 general election, when Bailey and Fleuchaus sued in Leon County Circuit Court to forbid Amendment 10 from being placed on the ballot.
The proposition was the product of the Constitution Revision Commission, a special body that comes into being every 20 years to consider changes in the state charter.
The CRC drafted the proposed constitutional amendment, which included multiple items in a single package.
Besides restoring constitutional status to the aforementioned elected officials, the amendment mandated the state have a department of veterans affairs — which it already has — and formation of a state homeland-security agency.
Bailey, Fleuchaus and the county opposed the “bundling” of different, unrelated subjects in the ballot measure. Such bundling — prohibited in amendments proposed by citizens — is allowed for amendments crafted by the CRC.
The plaintiffs lost at the circuit and appellate levels, and the constitutional referendum went forward, winning with 63 percent of the votes cast.
In Volusia County, 52.5 percent of voters supported Amendment 10 in the 2018 election.
The charter architects and the County Council took their objections to Amendment 10 into court again, arguing the 2018 constitutional change should not override Volusia County’s 1970 charter.
Volusia County and the charter proponents sought to convince the judges the voter-approved charter had been adopted consistent with a provision in the 1968 Florida Constitution that authorized counties to establish home-rule charter government.
The argument was that Volusia County’s charter government — a council-manager structure in contrast to the commission system that gives elected officials both legislative and executive power — should be “grandfathered in” and left intact.
Again, the Leon County Circuit Court and the 1st District Court of Appeal rejected the plaintiffs’ case.

Which brings us to now

“It’s possible you could seek additional review,” County Attorney Dyer told the County Council Aug. 25. “Notice would have to be filed within 30 days.”

But the County Council had had enough of the litigation. The fight over Amendment 10 is over, as far as the elected body is concerned.

“We will fully implement it with our constitutional officers,” Council Member Deborah Denys said.

“It’s time to put this thing to bed. We’ve been wasting time,” Council Member and former Sheriff Ben Johnson said.

In response to complaints raised in public about the county’s waste of money to carry on its legal battle against Amendment 10, Dyer said Volusia County had spent $1,988.83 — mostly in court filing fees and travel — on the case.

The county had retained no additional legal counsel, Dyer added. Indeed, Eckert had represented the county in his role as its chief legal officer.

Council members warn taxpayers will pay more

The “real cost” of the legal losses is yet to come, Johnson warned.

“This is not a budget shift,” he said, noting the creation of the elected tax collector has already resulted in seven-figure expenses. “We’re already out over a million dollars. …You have to add personnel.”

County Chair Ed Kelley agreed.

“The costs are coming,” he told his colleagues and the audience. “The people are going to be the ones to suffer in the form of higher taxes.”

Though he had supported the fight to keep Volusia County exempt from Amendment 10, Kelley conceded defeat and voted with his peers — 7-0 — to halt the county’s part in the lawsuit.

Even while the county was seeking to stop implementation of Amendment 10, the County Council agreed with County Manager George Recktenwald’s suggestion in 2019 to begin preparing for a possible transition to making the elected department heads constitutional officers.

Property Appraiser Larry Bartlett and Elections Supervisor Lisa Lewis have already agreed to continue to use the existing county structure and services for their agencies.

By contrast, Sheriff Mike Chitwood says he is setting up his own personnel, finance, purchasing, payroll and legal offices. Chitwood says his new structure will not become a burden on the county’s budget and the taxpayers.

“We’re going to be looking for ways to save money,” the sheriff said.

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