Third District Court of Appeal
State of Florida
Opinion filed May 3, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-733
Lower Tribunal No. 17-5123
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Gonzalo C. Sanchez, as Chairman of the Recall Committee, and
Providing Effective Government for all Residents, a political
committee,
Appellants,
vs.
Orlando Lopez, individually and as Mayor of the City of
Sweetwater,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Rodney Smith,
Judge.
Kuehne Davis Law, P.A., and Benedict P. Kuehne and Michael T. Davis;
and KYMP and Juan-Carlos Planas, for appellants.
Carballo Law, P.A., and Joseph A. Carballo and John Rodriguez; Coffey
Burlington, P.L., and Kendall Coffey and Scott A. Hiaasen, for appellee.
Before LAGOA, FERNANDEZ and LUCK, JJ.
FERNANDEZ, J.
Appellants Gonzalo C. Sanchez, etc., et al., appeal the trial court’s final
judgment concluding that the recall petition filed against appellee, Sweetwater
Mayor Orlando Lopez, did not state a valid ground for neglect of duty pursuant to
the City Charter. We agree with the trial court that the recall petition, filed
pursuant to section 100.361, Florida Statutes (2009), is legally insufficient as a
matter of law and therefore affirm the court’s final judgment.
Appellants sought the recall of the mayor on the grounds that he failed to
perform his duties as section 4.01(d)(10) of the City Charter requires. They
alleged in the recall petition, among other things, that the mayor failed to attend
numerous commission meetings, or provide staff to City Budget Workshops,
which forced the cancellation of meetings and prevented commissioners from
addressing important financial issues.1 The mayor sought declaratory and
1 The entire operative text of the petition reads as follows:
I, the undersigned registered elector in Sweetwater, Florida, petition
the Sweetwater City Clerk to RECALL Mayor Orlando Lopez
pursuant to Section 7.01, Article VII of the Sweetwater City Charter,
which allows for all elected officials to be recalled and Florida
Statutes, section 100.361 which provides the procedure. Mayor Lopez
should be recalled for neglect of duty as he has failed to perform his
duties required by Section 4.01(d)(10) of the City Charter. On
numerous occasions, including June 10, 2016, Mayor Lopez failed to
attend, or provide staff to City Budget Workshops, forcing their
cancellation and preventing Commissioners from addressing
important financial issues. Mayor Lopez has also missed numerous
meetings of the Sweetwater City Commission, including September
15th and 30th, as well as October 3rd and November 16th of 2016. As
the chief administrator of the City, his presence is needed in order to
provide essential information to members of the Commission for
pending legislation. Without the Mayor present, the City Commission
was hampered in its ability to fulfill its duty. Mayor Orlando Lopez's
neglect of his duty by his continued absences has burdened the City of
Sweetwater and caused problems in the effective and efficient
governance of the City.
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injunctive relief to suspend the recall process. He mainly argued that the recall
petition was invalid because he did not neglect his duties pursuant to the City
Charter. The court found that the language of the recall petition was legally
insufficient because the mayor’s absence from commission meetings did not
constitute neglect of duty under the City Charter.
The duties of the Mayor of the City of Sweetwater are delineated in Article
IV of the City Charter. Section 4.00 specifies that “[t]he executive authority of the
City of Sweetwater will be vested in the mayor who will be responsible for the
administration of the city government.” Section 4.01 specifies the powers and
duties of the mayor which include, in relevant part, the following:
(a) Position of mayor: The mayor shall be the chief executive
officer of the City of Sweetwater and shall be responsible for
the management and administration of the city government and
the legislative power of the mayor shall be limited to his right
to participate in meetings of the city commission, the power of
veto, approval in writing of ordinances and resolutions as
provided hereinafter in this section but the mayor shall not have
a right to vote.
***
(d) Specific authority of mayor: The mayor shall:
(1) Appoint and when he deems it necessary for the good of
the city, suspend or remove all city employees and
appointive administrative officers provided for by or
under this Charter or personnel rules adopted pursuant to
this Charter subject to appeal to the city commission as
more specifically set forth in section 3.06(e) of this
Charter. The mayor may authorize any administrative
officer who is subject to his direction and supervision to
exercise these powers with respect to subordinates in that
officer's department, office or agency.
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(2) Direct and supervise the administration of all
departments, offices and agencies of the city, except as
otherwise provided by this Charter or by law.
(3) Respond to inquiries of the commission. The mayor
may attend all commission meetings and may be
allowed to participate in the discussion but shall not
have the right to vote.
(4) Ensure that all laws, provisions of this Charter and acts of
the commission, subject to enforcement by the mayor or
officers subject to the Mayor's direction and supervision,
are faithfully executed.
(5) Prepare and submit to the commission the annual budget
and budget message which shall include any proposed
capital improvement program in a form as required by
Charter and state law.
(6) Submit to the commission and make available to the
public a complete report on the finances and
administrative activities of the city as of the end of each
fiscal year.
(7) Make such other reports as the commission may require
concerning the operations of city departments, offices
and agencies that are subject to the direction and
supervision of the mayor.
(8) Keep the commission fully advised as to the financial
condition and future needs of the city and make such
recommendations to them [it] concerning the affairs of
the city as the mayor deems advisable or commission
requests.
(9) In conjunction with the city clerk sign contracts on behalf
of the city pursuant to the requirements of ordinances or
resolutions providing there have been proper
appropriation of funds for same.
(10) Be available at all reasonable times to respond to
questions from members of the city commission.
(11) Perform such other duties as are specified in this Charter
or may be required by the city commission.
(Emphasis added)
The plain language of the City Charter makes clear that the mayor’s
attendance at commission meetings is
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not mandatory. Section 4.01(d)(3) provides that “[t]he mayor may attend all
commission meetings and may be allowed to participate in the discussion but shall
not have the right to vote.” In addition, section 4.01(d)(3) requires the mayor to
“[r]espond to inquiries of the commission” and section 4.01(d)(10) requires the
mayor to “[b]e available at all reasonable times to respond to questions from
members of the city commission.”
The City Charter thus gives the mayor the right to attend commission
meetings but does not require the mayor to do so. In addition, there are no
allegations that the mayor has not responded to the commission’s inquiries or has
not been available to respond to questions at all reasonable times. Florida’s recall
statute “requires that a recall petition allege conduct by the public official which
would constitute one of the seven grounds for removal,”2 as provided for in section
100.361(2)(d). See Bent v. Ballantyne, 368 So. 2d 351, 353 (Fla. 1979). In the
case of neglect of duty for failure to attend commission meetings, as is alleged in
the recall petition, the inquiry begins with the establishment of a legal duty of the
mayor and a violation of that legal duty by the mayor. Since the City Charter does
not require that the mayor attend commission meetings, then it stands to reason
that there cannot be a violation of such duty because the duty does not exist.
Finally, because one of the grounds for recall advanced in the petition, neglect of
2 The seven grounds for removal include malfeasance, misfeasance, neglect of
duty, drunkenness, incompetence, permanent inability to perform official duties,
and conviction of a felony involving moral turpitude.
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duty for failure to attend city commission meetings, is legally insufficient, the
entire petition is legally insufficient. See Garvin v. Jerome, 767 So. 2d 1190 (Fla.
2000).
We therefore affirm the trial court’s final judgment concluding that the facts
alleged in the recall petition do not support a claim for neglect of duty.
Affirmed.
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