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Historic Anna Maria recall vote certified

By Rick Catlin, Islander Reporter

Anna Maria election canvas board members George McKay, left, Sherry Oehler and city clerk Alice Baird convene at Anna Maria City Hall to sign and certify the Sept. 7 recall election. Islander Photo: Bonner Joy

The first ever recall election in Manatee County history ended at 9 a.m. Sept. 20, when the Anna Maria canvassing board certified the Sept. 7 vote to recall Commissioner Harry Stoltzfus from office 362-331.

Certification came following a Sept. 16 order from Florida’s 2nd District Court of Appeal that lifted a stay of the certification by the 12th Judicial Circuit Court.

Gene Aubry, who ran against Stoltzfus in the recall election to fill the remaining 14 months of Stoltzfus’ term, will be sworn in as a commissioner at 9 a.m. Wednesday, Sept. 22, at Anna Maria City Hall, 10005 Gulf Drive.

Aubry received 363 votes to Stoltzfus’ 333 votes in the election for commissioner, which was on the same ballot as the recall question.

Prior to the DCA decision, Anna Maria city clerk and canvassing board chair Alice Baird said she had planned to certify the election Sept. 20 to be in compliance with state law.

Anna Maria Mayor Fran Barford said she was relieved that the recall issue was over.

“This was the democratic process,” she said. “Now, the city can get back to doing its business.”

But the DCA also gave Stoltzfus 20 days to respond to its certification order.

City attorney Jim Dye said it would be a “foggy area” if Aubry were sworn in to fill the remainder of Stoltzfus’ term and makes decisions, then Stoltzfus files his show cause motion and the DCA orders he be returned as commissioner.

Dye said he did not know why the DCA did not explain its decision in its order, but said the city was now “free to certify the election.”

In his opinion, certification is the final step in the recall process.

Efforts to reach Stoltzfus’ attorney, Richard Harrison, were unsuccessful.

A week of motions

A flurry of motions and court orders last week ended when the DCA issued its order late on the afternoon of Sept. 16.

The week began Sept. 13, when the DCA ordered the ballots be counted and the results announced to the public. The votes had been sealed under a court order by Circuit Court Judge Edward Nicholas, who also ordered that certification be withheld.

At 4:30 p.m., the elections office announced that 362 votes were cast for the recall of Stoltzfus, with 331 against. The voting for commissioner was 363 votes for Aubry and 333 for Stoltzfus.

But the results were not certified as Nicholas, at a Sept. 3 hearing, had ordered certification withheld until Sept. 24, unless the 2nd DCA ordered differently.

Attorney Andrea Flynn Mogensen of Citizens for Sunshine Inc., found a flaw in Nicholas’ order.

Florida election law requires an election be certified by the 12th day following an election or the results become moot, she said.
Mogensen filed an emergency appeal with the DCA Sept. 14 requesting the court “grant relief” and order certification.

Otherwise, she wrote, any certification after Sept. 20, including Nicholas’ Sept. 24 deadline, would be invalid. Mogensen asked the court to immediately grant an order to certify the election.

The DCA apparently recognized the time issue and ordered Stoltzfus and his attorney to respond by 3 p.m. Sept. 15.

Stoltzfus and Harrison filed a response that, essentially, claimed the recall petition and election were illegal and in conflict with a Florida Supreme Court decision in 1998 known as the Garvin case.

Harrison also argued that to certify the election prior to a decision on the appeal would harm Stoltzfus.

But Mogensen noted that Florida revised its election laws and certification procedures following the 2000 presidential election and the Garvin case no longer applied.

On Sept. 16, just 24 hours after receiving Stoltzfus’ reply, the DCA issued its order lifting the certification stay and gave Stoltzfus 20 days to show cause why the appeal already filed by Stoltzfus should not be moot.

Late on the afternoon of Sept. 17, Harrison was apparently seeking an emergency hearing before the Florida Supreme Court to stay the certification, according to an attorney involved in the case.

History of the recall

Stoltzfus was elected in November 2009 on a platform of ensuring all new developments in the city’s retail-office-residential district along Pine Avenue were safe for parking and complied with the city’s comprehensive plan and land-development regulations.

He opposed several ROR project site-plans submitted by Pine Avenue Restoration LLC.

In March, Stoltzfus received a public records request from legal consultant Michael Barfield of Sarasota to release all e-mails on his private computer pertaining to city business.

Following release of the e-mails, city resident Bob Carter said he was so shocked by the revelations he formed a Recall Commissioner Stoltzfus Committee to obtain the legal requirements for a recall election.

According to Carter and committee members, Stoltzfus in his e-mails had betrayed the public trust at the least and was guilty of misfeasance and malfeasance.

In e-mails released:

• Stoltzfus has pledged to kick the “asses” of Mayor Fran Barford and planning and zoning board member Bob Barlow, and called Barford a “donkey.”
• 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 contended 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 already 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.

When the e-mails became public record, Stoltzfus denied any wrongdoing or violation of Florida’s Sunshine Laws and said he was only doing what he pledged to do during his 2009 campaign.

The appeal

After the Recall Commissioner Stoltzfus Committee delivered its two required petitions to the supervisor of elections office and the circuit court, Stoltzfus filed a motion to have the petition dismissed on the grounds it was legally insufficient.

Nicholas, however, determined the recall petition was acceptable and forwarded it to the 12th Circuit Court.

Prior to Nicholas hearing the Stoltzfus dismissal motion on Aug. 12, Circuit Court Chief Judge Lee Hamond ordered the recall election be held Sept. 7, unless Nicholas ruled in favor of Stoltzfus.

Nicholas denied the Stoltzfus challenge in a decision announced Aug. 24. He upheld the petition, which allowed the election to proceed as scheduled.

Stoltzfus then filed appeals with the Florida Second District Court of Appeal and with Nicholas, requesting a stay of the vote until the appeal court decision.

On Sept. 3, Nicholas ruled the election would proceed as scheduled, but the ballots sealed and the election not confirmed until after 5 p.m. Sept. 24, or earlier if the appeal court announced a ruling.

If the appeal court had not reached a decision by Sept. 24, Nicholas said Stoltzfus could request a further stay of confirmation of the election results and the public announcement of the vote.

After the results of the recall vote were announced, Mogensen filed the emergency motion with the DCA.

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