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Date of Issue: September 16, 2010

Long-awaited results, Stoltzfus out, Aubry in

Anna Maria commission candidate Gene Aubry waves on Pine Avenue as he campaigns in the Sept. 7 recall election. I Photos: Rick Catlin

Voters had their say Sept. 7 in the special election to recall Anna Maria Commissioner Harry Stoltzfus, but the results were only announced Monday, Sept. 13. Anna Maria voters chose 362 to 331 votes to remove Stoltzfus from office.

On the choice of who should serve his remaining term, Gene Aubry won the balloting with 363 votes to 333 votes for Stoltzfus.

At least, the results are certain, finally, after six days of waiting.

Manatee County deputy chief supervisor of elections Sharon Stief tabulated and announced the results with Anna Maria city clerk Alice Baird at the SOE office in Bradenton. Others present included Mike Barfield and Sandra Mattick.

Voter turnout for the recall election was “very good,” according to volunteer election workers at the Roser Memorial Community Church polling station.

“It’s been steady and heavy all day,” said one election volunteer, and that’s “good for a special election.”

Although the voting appeared to go smoothly, the results were ordered sealed.

Manatee County Supervisor of Elections Bob Sweat reported a total of 698 ballots were cast, including absentee votes.

The ballot contained two questions: Should Stoltzfus be recalled? Who should be the replacement commissioner, Stoltzfus or Gene Aubry?

Aubry said Monday, while on his way to join his wife in Michigan, when asked for his comment if he won or lost, jokingly, “I told you so.”

“We put our best foot forward. We never said anything bad about anybody. I put my credentials out there and hoped for the best. If in fact I’m elected, if it happens, I’m looking forward to serving.”

On Sept. 3, 12th Circuit Court Judge Edward Nicholas entered an order to seal the ballots of Sept. 7, and delay the election certification until 5 p.m. Sept. 24, allowing Stoltzfus to seek an expedited hearing before the DCA.

On Aug. 24, Nicholas held a hearing on Stoltzfus’ objection to the recall, at which time Nicholas entered an order allowing the recall, and subsequently, the election to proceed.

 Stoltzfus appealed that decision, but then filed for a hearing and won his motion to stay the order and have the court seal the ballots and delay certification of the election.

Stoltzfus sought to keep the results of the election from the public by saying he could suffer irreparable harm before the matter could be heard on appeal.

 Meanwhile, Citizens for Sunshine Inc., a public interest group in support of transparency in government, intervened in the Sept. 3 hearing, saying the ballots are public record.

CFS filed a request to intervene and a motion appealing the sealed ballots to the Second DCA for the right to inspect and examine the ballots — to unseal the ballots and make them public.

 Stoltzfus filed a response agreeing to allow the unsealing of the ballots, but asking to maintain the stay on certification of the election.

 The supervisor of elections asked to have the ballots unsealed and the election certified, or, in lieu of the certification, to at least unseal the ballots.

So, the recall election was held — the first-ever

recall vote in Manatee County history, according to

Sweat. And for six days, only machine knew the


Origins of Anna Maria 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.

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

Stoltzfus has denied any wrong-doing or violation of Florida’s Sunshine Laws and said he is only doing what he pledged to do during his 2009 campaign: uphold the codes and comprehensive plan of Anna Maria.

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 recall petition dismissed on the grounds it was legally insufficient.

Prior to Nicholas hearing the Stoltzfus dismissal motion on Aug. 12, Twelfth 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 an Aug. 24 decision and upheld the petition, which allowed the election to proceed as scheduled.

Stoltzfus then filed an appeal 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, 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 has not reached a decision by Sept. 24, Stoltzfus could request a further stay of confirmation of the election results and the public announcement of the vote.

The recall vote candidates

In an ironic twist, Stoltzfus has qualified to appear on the recall ballot and run 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, and 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 the recall subject’s own office.

If Stoltzfus is not recalled from office, the recall election of a candidate to fill the remainder of his term is invalid.