Judge: Naples has the right to question ethics referendum's legality

A judge has decided that Naples has the right to challenge the legality of a proposed ethics referendum.

Ethics Naples, the PAC behind the referendum, collected enough petition signatures to move the referendum forward in April. However, City Attorney Bob Pritt has argued that parts of the referendum, which would establish an ethics commission if approved, might be illegal.

According to Pritt, one of the more questionable aspects of the referendum is a requirement that any proposed amendment to the city's ethics code by the ethics commission would become law unless five or more council members vote against it.

The councilors voted in May to file a declaratory judgment, which means a judge will decide whether the referendum would appear before voters.

Collier Circuit Court Judge Hugh Hayes heard arguments Tuesday from Ethics Naples as to why the city's request for a declaratory judgment is invalid and should be dismissed.

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According to Tony Pires, the attorney representing Ethics Naples, the city must argue that the referendum as a whole is unconstitutional, and it has not done so; instead, it’s only argued that certain portions of the referendum are illegal, which is a piecemeal attack prohibited by Florida law, he said.

“The phrase ‘unconstitutional in its entirety’ appears nowhere in the (city’s) complaint,” Pires said.

However, the city has challenged enough of the referendum that what remains isn’t substantial, said Jim Fox, an attorney for the city. That's the equivalent of challenging the entire referendum, he argued.

“If the apple’s rotten to the core and, ‘Well, there’s a little stem here that’s OK,’ that doesn’t mean the whole thing is put on the ballot,” Fox said.

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Moreover, one portion of the referendum the city has challenged is the title because it’s misleading, and Florida law states that if the title of a referendum is misleading, then the entire thing is invalid, Fox said. For that reason, he argued, the city is in fact challenging the legality of the referendum as a whole.

Hayes agreed with the city and denied Ethics Naples' motion to dismiss the declaratory judgment.

“The question is, ‘Can the municipality challenge this?’ Clearly the answer is yes,” he said.

Hayes offered to hear each side’s arguments regarding the referendum’s legality Tuesday afternoon and make a decision on the spot. Fox agreed, but Pires declined, saying he wanted to talk to his clients first.

Hayes is expected to make a decision in the coming weeks regarding the referendum’s legality.

Both Ethics Naples and the city expressed a desire to expedite the process, citing an early October deadline to submit the referendum for placement on the November ballot.

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If Hayes decides the referendum is legal after the October deadline, the city would have to host a special election, costing $35,000 to $40,000, according to Trish Robertson, a spokeswoman for the Collier County supervisor of elections.

Both parties have the right to appeal Hayes’ decision, Pritt said, which means it could be months before the case is ultimately resolved.