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Date of Issue: September 01, 2010

Recall stay order requested

Motion to stay. Read PDF of Motion to stay here.

Anna Maria City Commissioner Harry Stoltzfus has asked the Manatee County Circuit Court to issue an emergency stay for his recall election.

Richard Harrison filed the motion for Stoltzfus as The Islander was headed to press.

The motion went to Judge Edward Nicholas, whose law clerk said it typically takes a day or two to schedule a hearing, “even for an emergency motion.”

Stoltzfus already has appealed Nicholas’ decision allowing the Sept. 7 recall to go forward.

The new motion argues that a stay “is required … to preserve the status quo to the extent necessary to permit Stoltzfus to obtain the meaningful appellate review to which he is entitled.”

Barring approval of the 11th-hour stay order requested by Commissioner Harry Stoltzfus that awaits a hearing from Manatee County Circuit Court Judge Edward Nicholas, voters in the city of Anna Maria will decide Sept. 7 on the recall of Stoltzfus.

The election is the result of efforts by the Recall Commissioner Stoltzfus Committee formed in April, which met the requirements for a recall vote to end the term of Stoltzfus that began in November 2009.

Nicholas has ruled the recall petition is legally sufficient and the recall may move forward.

The recall committee, with Bob Carter as chair, was organized after some residents read more than 800 Stoltzfus e-mails pertaining to city business. Stoltszfus wrote the e-mails from his private e-mail account.

Those e-mails were disclosed after a public records request in March, and contained numerous statements by Stoltzfus that the recall committee believes constitute misfeasance and malfeasance by the commissioner and, under Florida law, are grounds for a recall vote.

The committee was required by law to submit two petitions to eligible Anna Maria voters for signatures. The first needed a minimum of 136 signatures, while the second required 204 signatures.

After the first petition was certified, Stoltzfus filed a motion in circuit court to dismiss the recall petition on the grounds it was “legally insufficient” to warrant a recall vote.

Nicholas eventually forwarded both petitions to 12th Circuit Court Chief Judge Lee Haworth, who certified them and ordered a special recall election Sept. 7, pending the outcome of the motion to dismiss from Stoltzfus.

On Aug. 12, a hearing was held on the motion to dismiss and Nicholas issued a decision Aug. 24, in which he said the petition was legally sufficient and the recall would proceed.

He did not rule on the allegations, just that the petition met the Florida Statute recall requirements.

The recall committee in its petition claimed, as grounds for recall, that Stoltzfus violated Florida’s Government-in-the-Sunshine Law, some of his e-mail communications “contained libelous and inflammatory remarks concerning city staff, citizens and professional consultants,” in violation of the city’s policy against personal attacks, violated the requirement for a “fair hearing in a quasi-judicial proceeding” and this was “abusing his authority” to achieve his desired result.

The committee also contended that Stoltzfus used “evasive devices” to circumvent state statutes and “conspired with others to deceive citizens and bring financial harm to the city of Anna Maria.”

Memorandum of law

With the assistance of attorney Fred Moore, the committee submitted a memorandum of law to the court providing more detail on the grounds for the recall.

The memorandum allegations arose from the Stoltzfus e-mails, in which, the committee claimed:

        • Stoltzfus pledged to kick the “asses” of Mayor Fran Barford and planning and zoning board member Bob Barlow.

        • Stoltzfus asked Robin Wall to file a lawsuit against the city and offered financial backing for the effort.

        • He asked other supporters to join the lawsuit.

        • He provided individuals with information on how a lawsuit could be successfully prosecuted against the city.

        • He communicated with an attorney representing a plaintiff in a legal action against the city.

        • He communicated with a plaintiff who has filed a lawsuit against the city.

        • He e-mailed an attorney offering him the job of city attorney after current city attorney Jim Dye is removed by Stoltzfus from office this November.

        • He also asked the same attorney for advice on how he could avoid making public his personal e-mails about city business.

        • Stoltzfus said he’d like to see two Pine Avenue Restoration LLC projects on Pine Avenue bulldozed, although the projects were approved by the city and are built.

        • He directed his supporters on how to stop a proposal for Pine Avenue parking that he opposed.

        • He said Barford was ignorant and stupid.

        • He made allegations that city planner Alan Garrett and Dye are on the PAR payroll.

        • He called Garrett incompetent.

        • And he told Nicky Hunt that her planned, already-approved retail-office-residential project that does not comply with current city code would not have a problem when construction began.

 

Response

Stoltzfus responded that he has “done nothing wrong” and the allegations are coming from the losing side in the November 2009 election.

He said he has been targeted for his positions on parking and safety and his opinion that the city has approved retail-office-residential projects that are inconsistent with the city’s comprehensive plan and land-development regulations.

In his opinion, those projects do not comply with the city’s parking requirements and should never have been approved.

Since the recall started, Stoltzfus has maintained he would not resign and that he had committed himself to two years of public service when elected last November.

Attorney Richard Harrison of Tampa, representing Stoltzfus, said the commissioner has not broken Florida’s Government-in-the-Sunshine Law, or any other law.

Harrison has said Stoltzfus is still entitled to a personal opinion, even as an elected official.

Stoltzfus and Harrison also maintained the allegations in the recall petition were too vague for a proper response.

Some Stoltzfus supporters have written letters of support to The Islander and some have displayed signs in their home and car windows that state “Stoltzfus Supporter.”

One Stoltzfus supporter described the recall committee as an “attempt to usurp the judicial process,” saying it was “renegade, vigilante justice.”