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Date of Issue: August 25, 2010

Anna Maria still awaiting recall decision

Anna Maria Commissioner Harry Stoltzfus, far left, and the gallery await the hearing by Circuit Court Judge Edward Nicholas Aug. 12 at the Manatee County Judicial Center, Bradenton. Islander Photo: Bonner Joy

Anna Maria residents are asking just about everybody they meet if they’ve heard whether Circuit Court Judge Edward Nicholas rendered a decision on the motion to dismiss the recall petition against Commissioner Harry Stoltzfus.

All answer the same: “No.”

Nicholas was expected to make a prompt decision after hearing arguments in the case Aug. 12 and is under orders by 12th District Circuit Court Chief Judge Lee Haworth to promptly provide a decision. But no announcement had been made by The Islander’s press deadline on Monday, Aug. 25 — 13 days after the hearing.

Nicholas’ administrative assistant said last week the judge was in court every day and she did not know when a decision would be reached.

Haworth scheduled the special election for the recall vote Sept. 7, and city and county officials need to know how to proceed.

Nicholas’ decision has far-reaching consequences for the city, both officially and unofficially.

As Commissioner Dale Woodland said, “The city is divided” over the recall and the related parking issue.

“Ray Charles could see that,” Woodland said at a recent commission meeting.

If Nicholas dismisses the recall, Stoltzfus maintains his seat and the election is canceled.

 Should Nicholas find for the recall committee and committee chair Bob Carter as the defendant, the election proceeds as planned.

Also named as defendants by Stoltzfus in his motion are Anna Maria city clerk Alice Baird and Manatee County Supervisor of Elections Bob Sweat.

Stoltzfus’ attorney, Richard Harrison, said the two were named because of their official functions as clerk and elections supervisor.

Baird is represented by city attorney Jim Dye, while Sweat’s counsel is county attorney Jim Minix.

Carter has retained Fred Moore to represent him and the committee.

Recall events

The recall effort against Stoltzfus began in April when a group of residents led by Carter formed an official recall committee upon learning the details of 800 e-mails from Stoltzfus’ private computer that pertained to city business.

Those e-mails were provided by Stoltzfus following a public records request. The e-mails contained numerous statements by Stoltzfus that the 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 signed by eligible Anna Maria voters. The first needed a minimum of 136 signatures, while the second required at least 204 signatures.

After the first petition was certified by Sweat’s office, Stoltzfus filed a motion with the court to dismiss the recall petition on the grounds it was “legally insufficient” to warrant a recall vote.

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

Nicholas held a hearing on Stoltzfus’ dismissal motion Aug. 12. He said “time was of the essence” and he would announce his decision as quickly as possible.

Recall election: Stoltzfus vs. Stoltzfus

Meanwhile, Stoltzfus is running to fill the remainder of his own term if he is recalled from office Sept. 7.

Gene Aubry also has qualified to fill the remainder of the term. Voting for both the recall and the commission seat will be done on the same ballot.

Florida law allows both the recall election and the election to fill the remainder of the recalled official’s term — should the recall be approved — to be on the same ballot. The law also does not prevent the subject of a recall vote from seeking the remaining term of his or her own office.

Absentee ballots already have been mailed by the city to ensure they are returned in time for the election, according to city clerk Alice Baird.

“It’s frustrating,” said Mayor Fran Barford. “We just need to know one way or the other what to do. We don’t want to spend a lot of money if there’s not going to be an election.”

Aubry said he would like to speak about his campaign and views, but wants to know the election is on for Sept. 7 before proceeding.

“My comment is I’ll comment when I know the election is going forward,” he said.

Aubry said when he announced for the race that he would “bring stability” to the commission, ensure the land-development regulations are consistent with the comprehensive plan, clarify codes and land-development regulations with simple language that is compatible with the comprehensive plan.”

Aubry said it’s time to “mend fences by listening to everyone with an open mind,” and his goal is to “maintain the residential areas of the city they are and to support and respect the property rights of all, whether single-family, duplex owners or vacation rental properties.”

Stoltzfus made parking safety on Pine Avenue and compliance with the comprehensive plan for ROR projects his priority when he was elected in November 2009.

He maintains the city has approved a number of ROR projects on Pine Avenue that are unsafe and inconsistent with the comp plan and the LDRs.

Stoltzfus has opposed a parking plan brought forward by Commission Chair John Quam. The commission and planning and zoning board, in a joint session, voted 11-1 to move forward with discussing the plan.

Stoltzfus also maintains the density of several recently approved ROR projects on Pine Avenue is inconsistent with the comp plan, although the Florida Department of Community Affairs has ruled the city’s density rules have been computed correctly.

The commissioner has said several times he will “not back down” from what he believes he was elected to do, and he will not resign his commission seat.

If the election is held, polling will be at Roser Memorial Community Church, 512 Pine Ave.

 The rules for campaigning and political activity on the day of a regularly scheduled election will apply to the special election, Sweat has said.