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Date of Issue: June 02, 2010

Stoltzfus seeks to halt recall, motion denied

Anna Maria Commissioner Harry Stoltzfus filed a motion May 24 with the Manatee County Circuit Court asking the court to declare the recall petition against him “not legally sufficient.”

 Attorney Richard Harrison, representing Stoltzfus, submitted the complaint, along with a motion seeking a hearing prior to May 28 — the deadline for Stoltzfus to attach a 200-word statement in his defense to the second recall petition.

Circuit court Judge Ed Nicholas denied the accelerated hearing motion on May 26.

Stoltzfus submitted his letter of defense to Anna Maria city clerk Alice Baird less than an hour before the deadline.

Harrison named recall committee chair Bob Carter, Anna Maria City Clerk Alice Baird and Manatee County Supervisor of Elections Bob Sweat as defendants.

The recall petition was “so vague and ambiguous that it does not furnish (Stoltzfus) fair, reasonable and adequate notice of the charges alleged as grounds for recall,” the complaint states. Stoltzfus is “unable to frame an appropriate defensive statement” because of the vagueness of the charges, Harrison alleged.

The Recall Commissioner Stoltzfus committee submitted its first recall petition with the required signatures to Sweat.

Under Florida law, the committee has 30 days from the date Stoltzfus provides his defensive statement to then obtain the signatures of 15 percent (204) of the 1,362 voters registered with the city as of the date of the last election — Nov. 3, 2009.

Harrison’s motion for dismissal of the recall petition does not halt the process, said Sweat. It would take a court order to put the brakes on the recall, he indicated.

Carter said the legal maneuvering was not unexpected.

“We have anticipated this kind of delay action since we began the process,” he said. “We will respond appropriately.”

The committee claimed in its original petition that since Stoltzfus’ election to the city commission in November 2009, he has committed misfeasance and malfeasance in the performance of his duties.

Carter and the committee claimed Stoltzfus sent e-mails that contained “libelous and inflammatory remarks” about city staff, citizens, and professional consultants that violate the city’s policy against personal attacks and “expose the city to significant legal expense.”

The petition further stated that Stoltzfus has been “abusing his authority,” has employed “evasive devices to intentionally circumvent state statutes” and has “conspired with others to deceive citizens and bring financial harm” to the city by encouraging litigation against the city while hiding his involvement in the action.

 “His conduct cannot be legally justified and conflicts with state law,” the petition stated.

Not so, wrote Harrison in his motion to the court.

He called the recall committee charges against Stoltzfus “vague and ambiguous,” and claimed they were not specific enough to justify a recall.

The committee’s charge that Stoltzfus violated the city’s policy against personal attacks “is inadequate to establish malfeasance,” Harrison said. Additionally, he claimed the “city has no such policy that would relate to e-mail communications by a commissioner.”

The city does have a pledge of conduct, but it contains no specified penalty or sanction for any violation, Harrison said.

Additionally, Harrison continued, the claims of malfeasance and misfeasance are “mutually exclusive concepts (and) no single act can constitute both malfeasance and misfeasance.” The recall petition does not distinguish between the two acts and this creates a “legal impossibility,” he said.

Harrison asked the court to grant temporary relief to Stoltzfus to “preserve the status quo, declare the petition invalid, enjoin the defendants from taking further action in furtherance of the recall or recall petition,” and grant further relief as the court sees fit.

 Harrison concluded by asking the court to award costs to Stoltzfus.

Sweat said the Manatee county attorney will represent him in court, while Anna Maria Mayor Fran Barford said she has given city attorney Jim Dye the papers served on Baird as a defendant. Carter said last week the recall committee had not yet decided if it would seek a lawyer.

As of press deadline May 31, the court had not set a date to hear the motion.

Malfeasance and misfeasance.

According to the Merriam-Webster online dictionary, the definitions are:

Malfeasance: “Wrongdoing or misconduct, especially by a public official.”

Misfeasance: “The performance of a lawful action in an illegal or improper manner.”

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