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09.07.2010 Special Meeting SPECIAL CITY COUNCIL MINUTES - SEPT. 7 2010 CITY OF MIAMI GARDENS SPECIAL CITY COUNCIL MINUTES (A) CALL TO ORDER/ROLL CALL The City Council for the City of Miami Gardens, Florida, met in Special Session on Tuesday, September 7, 2010, beginning at 10:15 p.m., in the City Council Chambers, 1515 NW 167th Street,Building 5, Suite 200, Miami Gardens, Florida. The following members of the City Council were present: Mayor Shirley Gibson, Vice Mayor Aaron Campbell Jr., and Council members Lisa C. Davis, Andre Williams, Sharon Pritchett and Oliver G. Gilbert III. Also in attendance were: City Manager Dr. Danny O. Crew, City Attorney Sonja K. Dickens and City Clerk Ronetta Taylor. (B) INVOCATION Councilman Gilbert delivered the Invocation. (C) PLEDGE OF ALLEGIANCE Pledge of Allegiance was recited in unison. (D) RESOLUTIONS) D-1) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS, FLORIDA, AUTHORIZING THE CITY TO RETAIN THE SERVICES OF STEARNS, WEAVER, MILLER, WEISSLER, ALHADEFF & SITTERSON, P.A. TO DEFEND THE CITY OF MIAMI GARDENS AND THE CITY CLERK, IN HER OFFICIAL CAPACITY AS SUPERVISOR OF ELECTIONS IN THE LITIGATION MATTER FILED BY J. PHILLIP TAVERNIER; PROVIDING FOR THE ADOPTION OF REPRESENTATIONS; PROVIDING AN EFFECTIVE DATE. (SPONSORED BY THE CITY ATTORNEY) Mayor Gibson stated this Special Meeting was called to address the issue of a Complaint in the case of Tavernier v. Robinson, et al. Attorney Dickens expounded on this matter and stated a lawsuit has been filed and an emergency hearing scheduled for later this afternoon to hear the complaint that a run-off election is in order do to the manner in which votes were counted as it related to Residential Areas— Seat 4. In that regard the Courts has scheduled an Emergency Hearing for today at 2:30 p.m., in Chambers. She thanked the City Council for appearing at this Special Meeting in order to retain Special City Council Minutes September 7, 2010 Page 1 - SPECIAL CITY COUNCIL MINUTES - SEPT. 7 2010 Counsel for this representation. She stated the City Clerk has been sued in her official capacity as the Supervisor of Elections for the City of Miami Gardens. Attorney Dickens shared that this law firm has represented the City of Miami Gardens in other capacities, in the past. Motion offered by Councilman Gilbert, seconded by Councilman Williams to adopt this item. Councilman Williams asked the City Clerk when did she become aware of Phillip Tavernier's concerns with the results of the Election. Clerk Taylor in response to Councilman Williams replied, "Wednesday, August, 25, 2010", when Mr. Tavernier started sending emails to Miami-Dade County. Miami-Dade County in turn sent copies to her. Councilman Williams asked what were those concerns. Clerk Taylor said Mr. Tavernier first requested a recount, which Miami-Dade County denied. Next Mr. Tavernier asked for the official results of the election. Miami-Dade County advised Mr. Tavernier that he could get that information from the Office of the City Clerk once it was completed. Mr. Tavernier also paid a visit to Miami-Dade County Supervisor of Elections on Monday, August 30''. At that time he requested additional documentation. Councilman Williams asked what is Mr. Tavernier's legal basis for the complaint. Attorney Dickens said Mr. Tavernier's complaint is that the City of Miami Gardens Charter says in order to be a winner, a candidate must receive fifty or more percent of the ballots cast. Mr. Tavernier is suggesting some of the votes were thrown out, and even though they were thrown out they should be treated in the definition of being cast. The reason the votes were thrown out was because they were improper votes because they were for a candidate that was no longer eligible Councilman Williams for clarification purposes said Mr. Tavernier is alleging that the votes cast for Santarvis Brown, a candidate who withdrew from the race; even though he withdrew his name remained on the ballot. Therefore, people voted for Mr. Brown, and those are the votes that should have been counted. Attorney Dickens said that is correct. Councilman Williams asked the Attorney Dickens when did she become aware of Mr. Tavernier's concerns. Attorney Dickens said she never received anything in writing from Mr. Tavernier. However,through the Office of the City Clerk she was made aware that Mr. Tavernier had some Special City Council Minutes September 7, 2010 Page 2 SPECIAL CITY COUNCIL MINUTES - SEPT. 7 2010 issues. Councilman Williams asked whether the City Attorney did any legal analysis of Mr. Tavernier's concerns. Attorney Dickens said she did not do a legal analysis. She shared that she had suggested that the City Clerk wait for the official results from the Miami-Dade County Supervisor of Elections, which the Clerk did. Miami-Dade County Supervisor of Elections certifies the results of the Election. She said is ultimately up to the Council to determine the interpretation of the Charter, as to what is a cast vote. Councilman Williams asked about the Certification provided by Miami-Dade County. Clerk Taylor said the certification specified"Votes Cast". Councilman Williams asked whether the Certification document provided by Miami- Dade County list any percentages. Clerk Taylor replied, "No." Councilman Williams asked why is the Council hiring an attorney to challenge this. Attorney Dickens said the City got served with a lawsuit therefore she typically would secure representation. It is up to the Council as to whether it wants to challenge the lawsuit. Councilman Williams said he planned to vote no on this item. He opined the City should not be spending money to represent the City in this matter. Councilman Gilbert asked whether the City Attorney did a legal analysis on the merits of this case. Attorney Dickens said she did not conduct a legal analysis. She shared the case Mr. Tavernier's attorney is citing had to do with an individual who was eligible to run but decided to withdraw. No notice was provided to the voters indicating this individual had withdrew from the race. Councilman Gilbert asked about the cost structure associated with defending this matter. Attorney Dickens said she did not provide the cost. The attorney charges an hourly rate. The crust of the matter is that this item will heard today,before the Judge. Councilman Gilbert asked the City Clerk is she was aware of how many voted Santarvis Brown received. Clerk Taylor in response to Councilman Gilbert's question replied, "No". Special City Council Minutes September 7, 2010 Page 3 SPECIAL CITY COUNCIL MINUTES - SEPT. 7 ` 2010 Vice Mayor Campbell asked whether the Council had the authority to order a run-off election. Attorney Dickens in response to Vice Mayor Campbell's question said the Council has the authority to direct the Clerk to have a run-off election. Vice Mayor Campbell reiterated the Council has the authority to notify Miami-Dade County its desire to have a run-off election. Attorney Dickens opined if the Council says to have a run-off, there would have to be run-off. Vice Mayor Campbell asked what is the liability is the Judge rules in favor of Mr. Tavernier. Attorney Dickens said there is no financial liability. Vice Mayor Campbell asked why is the City involved in this fight. He opined it would be more cost effective to have a run-off election. He suggested not hiring an attorney and waiting until the outcome of today's hearing before making a decision. Attorney Dickens said if the Council decided it does not want to defend this matter, then she would call off the lawyers. She said the reason the City is involved is because the City got sued. The City Council ratified the results so now Tavernier has sued the City Clerk for some kind of relief;therefore something has to be decided. Attorney Dickens suggested to get through today's hearing Counsel is retained. The Council can ultimately make a decision at tomorrow's night City Council meeting depending on the outcome of today's hearing. Mayor Gibson conveyed understanding that this complaint is in reference to requesting a run-off election. She further said she understood the Council interprets the Charter. She said in this particular case a candidate in this race received the 50 plus percentage, which was ratified by Miami-Dade County's Canvassing Board. She said this lends itself to a more serious issue as to whether there will be a challenge every time someone is not satisfied with the number of votes cast. She said the certified results of the election are very crucial to this matter of litigation, and the challenge of the 50 plus votes cast. Councilman Gilbert said the results were certified by Miami-Dade County Elections Department, and ratified by the City Council. The results of that certification and ratification have one person getting more than fifty percent of the votes. The only evidence the City has is that one candidate received fifty percent plus of the votes cast. He said if the Council orders a run-off Election there will be damages and liabilities. He opined the complaint seems to be deficient in several ways. The City's ratified election results says that Felicia Robinson is in fact the elected Council member. Special City Council Minutes September 7, 2010 Page 4 SPECIAL CITY COUNCIL MINUTES - SEPT. 7 2010 Councilman Gilbert shared that his law firm represents municipalities as their City Attorney. As a City Attorney, the Council does not want City Attorney to serve on cases like this. This would be asking the City Attorney to act against someone who could possible in the future be a council member because of that litigation. There are inherit conflicts. He opined the City Attorney should not be defending this matter. Councilwoman Pritchett made reference to the case cited in the complaint and asked why was that information not shared with the Council members. She further asked what was the outcome of that case. Attorney Dickens apologized for not having that information available. She said the final outcome in that particular case was that a run-off election was ordered. Councilwoman Pritchett said she keeps hearing conflicting things and wanted clarity. She asked the City Clerk whether she certified results. Clerk Taylor said the certification by Miami-Dade County Canvassing Board. That Certification is then provided to the City Clerk. Once this certification is received a resolution is prepared and brought before the Council for ratification. Attorney Dickens reiterated her earlier suggestion that the City at least have representation at today's hearing. Representation other than herself. She said Councilman Gilbert is accurate in that he stated that the Council has ratified the results and there is a sitting Council member. She said not know what the Judge's decision will be because she too saw technical flaws. Councilwoman Pritchett expressed concern with the cost associated with defending this matter. Attorney Dickens said the Council can set a cap on what it wants to spend on today's proceedings. She further shared that she has money in her budget for outside legal counsel. Councilwoman Pritchett said she was concerned with the long term aspects of this case. Councilman Gilbert opined the reason City Attorneys do not defend these kinds of complaints is because you really do not want involve your city attorney in a political issue like this. Councilman Williams said he was going to vote no on this item. He opined the City Attorney needs to do her job and represent the City. He said the City should not have a dog in this fight. He said the court will decide this matter and will tell the City what to do. Vice Mayor Campbell asked what is the Council's interpretation of the Charter, and that particular section as it relates to this issue. Special City Council Minutes September 7, 2010 Page 5 SPECIAL CITY COUNCIL MINUTES - SEPT. 7 2010 Attorney Dickens said what the Council has to ultimately determine is what does that mean. (total ballots cast). Does it mean votes that are ineligible to be counted, all the votes. The question is whether voted for an ineligible candidate counts. That is what the Council has to determine;that is the issue. Councilman Gilbert conveyed his understanding why Miami-Dade County count votes cast because there are under-votes as well as over-votes. There was notification provided so those who voted for the third candidate who withdrew, knew this individual had withdrew from the race. The case cited in 1974 is why notification is provided to voters. There being no further discussion the motion to adopt this item failed by a 2-4 vote, Vice Mayor Campbell: No Councilwoman Davis: No Councilman Gilbert: Yes Councilwoman Pritchett: No Councilwoman Robinson: Not present Councilman Williams: No Mayor Gibson: Yes Attorney Dickens said she will need direction from the Council as to whether to defend this matter or concede to a run-off election. Furthermore the Attorneys have been working on this matter since Friday for preparation purposes. She said the Attorneys will not be retained, however she would pay for their preparation. Attorney Dickens shared with the Council that as the City's Attorney this makes her uncomfortable. However, she will defend this matter all the way. Councilwoman Pritchett asked for a cost incurred thus far. Councilman Williams asked don't we want to get this right. He said he was in favor of a run-off. Vice Mayor Campbell opined with the numbers that close there should be a run-off. He said the voters should decide on the two candidates. He said as a City Council member he did not care who the winner is. He said he can work with either one. Mayor Gibson concurred with Councilman Gilbert's comments about this issue. She said when the City had its first election Councilman Bratton won by 12 votes. The other candidates did not file a lawsuit. She said she did not have a problem with either candidate. She said let's not be political and deal with on what is legal and precedence that has been set. Councilwoman Pritchett made reference to the fact that Councilman Bratton won by 12 votes and at that time the election was not contested. She said it is important to give picture Special City Council Minutes September 7, 2010 Page 6 I _ _ SPECIAL CITY COUNCIL MINUTES - SEPT. 7 2010 because at that time there was a different Supervisor of Election. The process since that time has been dismantled. She concurred with Vice Mayor Campbell's comments about letting the voters decide. Attorney Dickens said she was hearing two different things from the Council. There were some saying defend it other saying there should be a run-off. She said the City Clerk is her client therefore she will defend this matter. She said she wanted it to be clear that she will defend this matter to the fullest. Vice Mayor Campbell said the situation with Bratton never came up. That is why nothing was ever said. (E) ADJOURNMENT There being no further business to come before this Body, and upon a motion being duly made, the meeting adjourned at 10:50 a.m. Attest: Shirley i n, ayor Ron tta Taylor, M , City Clerk Special City Council Minutes September 7, 2010 Page 7