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Date of Issue: September 16, 2010

Demand for public ballot succeeds, results announced Monday

By 10 a.m. Monday, all involved parties in the special election had filed either motions or responses demanding the immediate release of the voting results from the Sept. 7 election on the recall of Anna Maria Commissioner Harry Stoltzfus.

At 1:52 p.m., the notice came from the Second District Court of Appeal that “all ballots, including absentee ballots, cast in the recall election of Sept. 7, shall be unsealed and open for public inspection.”

The Manatee County Supervisor of Elections office arranged to tabulate the results at 4:30 p.m. and announced the results with Anna Maria city clerk Alice Baird present, along with Michael Barfield and Sandra Mattick. Neither Stoltzfus or Gene Aubry, the candidate for his remaining term were present.

The election had finally ended, but the certification did not take place. The Second DCA made no mention of certifying the election in its order.

Circuit Court Judge Edward Nicholas had ordered the recall to proceed, allowing the election to take place, but he also ordered the ballots sealed and the election certification stayed until 5 p.m. Sept. 24.

Nicholas’ decision allowing the recall to proceed was followed by an appeal from Stoltzfus to the Second DCA, but on Sept. 3, at an emergency hearing requested by Stoltzfus in circuit court, Nicholas ordered the ballots sealed and the certification of the election stayed until the matter could be reviewed by the DCA.

Last week, attorney Andrea Flynn Mogensen, representing the Citizens for Sunshine Inc., filed a notice with the DCA to intervene as a friend of the court, and a motion for an emergency hearing to have the stay order lifted and the ballots — the voting results — made public. Mogensen said CFS has been following the events related to the recall closely the past seven months.

 Mogensen maintained a ballot is public record according to Florida law, and that Nicholas did not have authority to seal a public record.

County attorney Jim Minix, representing Manatee County Supervisor of Elections Bob Sweat, filed a response to the CFS motion seeking to allow Sweat to count the ballots. His response further requested that Sweat be allowed to certify the election.

But announcing the voting results and withholding certification doesn’t sit well with Anna Maria Mayor Fran Barford.

If Stoltzfus were recalled by citizens, but remained on the commission until an appeal ruling, that could create “chaos,” she said.

“What would happen later to a 3-2 vote” on a motion, ordinance or resolution, if Stoltzfus was recalled by the vote, but remained on the commission pending appeal?

Barford said the commission would be stuck knowing that one member has been recalled pending appeal. If that’s the case, any decision the commission makes by a 3-2 vote could be challenged, she indicated.

City attorney Jim Dye filed a response Monday on behalf of city clerk Alice Baird and the city asking the court to release the ballots.

Recall Commissioner Stoltzfus Committee attorney Rebecca O’Dell filed a response for the committee Monday as well, asking the court to order the ballots be released.

Stoltzfus also filed a response agreeing that the results of the recall election should be made public, but maintaining that certification should be withheld until the DCA rules on his appeal.

All the involved parties and attorneys appeared to agree that the vote should be announced immediately, but differ on when certification should take place.

The DCA has scheduled a “show cause” hearing for Stoltzfus’ appeal of the recall process for Sept. 20.

The Recall Commissioner Stoltzfus committee effort began in late March, following the public release of Stoltzfus’ private e-mails concerning city business.

Recall committee chair Bob Carter said that after he and other concerned citizens read the more than 800 e-mails Stoltzfus submitted under a public records request, the recall movement began in earnest, eventually leading to the Sept. 7 recall vote.

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