Charter Change May Face Legal Challenge


    The biggest issue at the Fort Myers Beach Town Council meeting on Monday afternoon concerned a charter amendment passed by the voters that Town Attorney Dawn Lehnert now believes will cost the Town between $150,000-$200,000/year. The amendment, listed on the ballot as Referenda 21 and titled, “REMOVING UNNECESSARY LANGUAGE REGARDING REVENUE SHARING,” was summarized as one of the amendments that would “clean up the Charter.” The summary approved by Town Council prior to being placed on the ballot, indicated that the authority regarding state revenue sharing was already provided for by a special act of the legislature and by general law.

    During public comment, Becca Nakaya said the town is to blame for the deteriorated conditions of the docks that were torn down at Coconut and Hercules.

    “It has been confirmed that property values on those streets have dropped by 10%,” she said. “Those docks were there longer than the town, and some residents have said they were not notified of their demolition. If there was no money to repair the docks how was there money for the demolition? Neighbors have gotten quotes of $20,000 for a new dock – not the $90,000 claimed by town staff. I suggest that the city give up the land leading to the water to the residents of Coconut Street.”

    Chamber President Bud Nocera said he spoke with Jackie Liszak (owner of Sea Gypsy Inn and organizer of a group that is fundraising for fireworks) and $20,000 has already been raised for the Town’s Fourth of July fireworks show, with another $700 in a GoFundMe account.

    Council then approved the Consent Agenda – including appointing Denise Monahan to the Bay Oaks Recreation Center Advisory Board (BORCAB). They also unanimously approved a special exception for alcohol and for the 2nd Annual Battle of the Blueway event scheduled for June 11th at Crescent Beach Park.

    Lehnert then brought up the issue of charter amendment 21, which addressed Article 17.01  – that contains language regarding eligibility for state revenue sharing based on the calculations including local special districts. The Charter Review Committee (CRC) recommended its elimination after former Town Attorney Derek Rooney opined that that authority is already provided for by both a special act of the legislature and by general law. The amendment passed with 80% of the vote on March 15th.

    “As I understand, the CRC reviewed different provisions of the charter and made recommendations, which were adopted in September,” said Lehnert – who began working for the Town on October 1st of last year. “Section 17.01 allowed the Town to meet the criteria set forth in Florida Statute 218.23 by allowing the Town to include the millage levies of the special districts operating within the Town’s jurisdiction in order to meet the 3 mil requirement. With the approval of referendum question 21, the Town is no longer able to use the special district’s levy to meet the criteria. As a result the Town will lose the ability to share in the revenue derived from the State Municipal Revenue Sharing Fund.”

    Lehnert said she discovered the error when doing research ‘right before the election’.

    “I see two options to fix this – Council can increase millage to meet the state criteria of 3 mils, hold another referendum to replace 21 – which can be done via mail ballot, or forego the amount of money we would have gotten from revenue sharing – $150,000 to $200,000/year.”

    Town Manager Don Stilwell said he was notified about the issue on March11th, the Friday before the election, though an email stream regarding the issue shows that he responded to an email from former council member and local attorney Bill Shenko expressing concern about revenue sharing on February 23rd.

    Council member Rexann Hosafros said she was present at all of the CRC meetings, and that Rooney did seek advice from the Attorney General’s office.

    “I’d like a written opinion from them as Rooney believes his advice was sound,” she said.

    Lehnert said she stands by her opinion, but she will pursue that route.

    “You can ask for the AG opinion – which may take as long as six months, and while we’re waiting also do the mail ballot,” she said. “That way we’re covered either way.”

    Council agreed, and asked Lehnert to return to them at the next meeting with the necessary process in order to get an answer before the current revenue sharing expires at the end of this fiscal year (September 31, 2016).

    Boback said – should it turn out Rooney’s advice was in error – it is his intention to seek reimbursement from him for the situation.

    The CRC recommended elimination of Article 17 on December 11, 2014. At that time, then-Town Attorney Derek Rooney said the issue of revenue sharing is better covered by state statues, after which member Dan Hughes pointed out that the Town Charter is designed to cover things not covered by general law, making Article 17 irrelevant. Rooney agreed – saying that the chapter makes no sense legally – and the committee agreed to recommend its deletion.

    Attorney Lehnert did not respond to several requests for comment this week. Hosafros sent us an email she received from Lehnert on Tuesday morning, March 8th that included a query sent to her, Town Manager Don Stilwell and Administrative Services Director Maureen Rischitelli from Bill Shenko on Wednesday, February 24th. Both Stilwell and Lehnert replied to Shenko that they would have a meeting about the issue, after which Lehnert issued the opinion she stated at Monday’s Council meeting on March 8.

    “Based on the above findings, your concerns with the Town’s ability to continue sharing revenue under 218.23 are valid,” Dawn wrote to Council, Shenko, Stilwell and Rischitelli on March 8. “In light of this fact, one can only hope the referendum fails.”

    This week Hosafros said the March 8th email was the first time she was aware of a ‘difference of opinion on this issue’.

    “I knew the question was raised previous to this date but at that time I believed that Derek’s opinion was good (and still could be),” she said.

    During Council Member Items, Tracey Gore wanted to know if the Town could pay for the Hercules dock, or take contributions from the neighbors, should the TDC deny the funding request a second time.

    Stilwell replied that the Town doesn’t have the money to pay for a dock or ‘for anything else’.

    “We could give up our Right of Way and the neighbors could build it, but you have to be careful doing something like that because it sets a precedent,” he said.

    Boback suggested turning the management of the Mound House and Newton House over to a private entity – much like the Edison Home downtown.

    “That’s the direction we’re headed in as the Mound House costs the town a lot of money,” said Stilwell.

    Hosafros expressed surprise at the idea, and Gore said she’s spoken with Anita Cereceda since being elected and wasn’t told about it.

    “I’m looking at Ceel Spuhler and the women from CELCAB (Community and Environmental Learning Center Advisory Board – the advisory committee that makes recommendations to Council on the Mound House and Newton Park) in the audience, and they look pretty shocked too,” she said.

    Council agreed to wait until Cereceda returned to have the discussion and to allow CELCAB members to weigh in.


    Keri Hendry Weeg