Updated: Friday 3:45 p.m.
VERO BEACH — Two little words are causing big trouble for Vero Beach Council member Charlie Wilson. A Vero Beach resident has filed a suit alleging Wilson is not qualified to sit on the council’s dais because he did not meet the eligibility rules according to the city charter.
Vero Beach attorney Louis “Buck” Vocelle filed the suit on behalf of resident Dian George on Thursday, raising the issue because Wilson moved into the city limits just days before filing to run for office. The suit hinges on the meaning of “as of” in reference to the length of his residency. The Vero Beach City Charter states, in part, “only qualified electors of the city with a minimum of one year of residency in the city as of the qualifying deadline shall be eligible to be members of the city council.”
What exactly “as of” means in the Charter, is the lynchpin of the lawsuit, according to the court filing.
“The plain meaning of the above … is that the idiom ‘as of’ clearly denotes that the one year residency requirement must be the one year immediately preceding the qualifying deadline,” wrote Louis “Buck” Vocelle, in the lawsuit.
Wilson has maintained that he meets the residency requirement because he has lived for more than a year within the city limits — though in years prior to this last year.
Circuit Court Judge Paul Kanarek has been assigned to the case in which he will be asked to interpret the city’s charter.
When the lawsuit will go before the judge is not yet known. Vocelle said that once all the named parties in the suit respond, he would ask the judge for a hearing.
While the lawsuit itself does not raise any questions — other than the meaning of “as of” — the ramifications of a successful challenge leaves many.
If Wilson is removed from office, who would fill the seat? Would it be as simple as having the No. 3 finisher, Ken Daige, appointed to the council — and if so, would he even be interested?
If there needs to be a new election, when would it be held and how would it be paid? Would the other candidates who ran in the Nov. 3 municipal election automatically qualify to run? Would other residents get to throw their hats in the ring?
Vocelle said that he does not know how the city would go about filling the open seat if the suit were to be successful.
“I don’t think the city does either,” he said.
City Clerk Tammy Vock, who is named in the suit in her capacity as the city’s elections supervisor and member of the canvassing board, was out of town Friday.
Deputy Clerk Sherri Philo said that she had reviewed the charter but could not determine how the seat would be filled. Philo added that she spoke with City Attorney Charlie Vitunac about the question. He told her that he was reviewing the charter and there are a few options the city could pursue.
No other details were immediately available about the options, as Philo said it might take a few days to determine the options.
According to a representative of the Florida Division of Elections, city and county charters prevail in election contests and that the charters are supposed to have procedures in place to cover contested elections.
Jennifer Davis, of the elections division, said that the judge assigned to the case might be the one to decide who would take Wilson’s seat if he were ousted – if that is what the city’s charter provides.
Davis also said that there is a Florida statute that could grant Wilson’s seat to the person who filed the election challenge.
“Generally, they’re saying they are entitled to hold office,” Davis said of the plaintiffs in such cases.
However, the judge would have to find that the plaintiff — in this case George, who is a Vero Beach resident and a registered voter — is “entitled to the office.”
As for the lawsuit itself, the question of who would defend the respondents has been answered. City Attorney Charles Vitunac, who has been named as one of the defendants in the lawsuit, said Friday afternoon that Wayne Coment would represent the canvassing board.
But Councilman Charlie Wilson would be on his own.
“We will not be representing him,” Vitunac said, adding that Wilson has his own personal attorney and is expected to defend himself at his own expense.
The city does not expect to incur additional expenses from the lawsuit, though the suit will take away from time the City Attorney’s Office could be spending on other city matters.
Supervisor of Elections Kay Clem is also expected to have her own representation against the lawsuit.
Vitunac said that the suit is really between resident Dian George and Charlie Wilson.
Both Vitunac and George’s attorney, Vocelle, said that the only reason the Vero Beach Canvassing Board and Supervisor of Elections Office were named in the suit is so the judge’s ruling would be binding.
“We’re not alleging any wrongdoing,” on the Supervisor of Elections’ part, adding that the suit is not personal against Clem. She is considered a “nominal party,” Vocelle said.
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What do you think “as of” means in the city charter? Is it as resident Dian George’s attorney asserts – that candidates have to live within the city for at least one year immediately preceeding the qualification period? Or is it like Charlie Wilson says – you can live within the city for a year without it being immediately before the qualification period?
Leave your comments below.
