It's Over. Disqualified Candidate Withdraws

Ross Johnston Cancels Lawsuit Against City

It’s Over. Disqualified Candidate Withdraws

1/24/13 Story Update:
City Commissioner Steve Leary Criticizes Voice Coverage of His Involvement in Johnston Campaign. In an email received by the Voice late this afternoon, Commissioner Steve Leary took issue with our characterization of him as a “key supporter” of Ross Johnston’s candidacy.

Today’s email is Mr. Leary’s first contact with the Voice regarding the Johnston story — a response to the Voice’s “Request for Comment” sent to Mr. Leary prior to printing our 1/22 Story Update. Read the full text of Leary’s response in our Story Comments (CLICK HERE). After clicking, scroll down to find comment.

1/22/13 Story Update: Two weeks ago today, Ross Johnston arrived in the City Clerk’s office ten minutes before the filing deadline. He sat in the Clerk’s office filling out paperwork, but was unable to meet all filing requirements by the noon deadline.

When Johnston was subsequently disqualified to run for Carolyn Cooper’s Commission seat, he retained the Vose Law Firm to sue the city in a bid to qualify as a candidate.

Today, in a startling change of course — just one day before the Circuit Court would rule on the merits of Johnston’s lawsuit — the Vose law firm notified Judge Donald Grincewicz that Johnston was withdrawing his lawsuit against the city. Click button below to see Notice of Dismissal and other documents.

According to Johnston, in a statement released today, his decision to run for office “. . . had its start in an unexpected morning conversation on the playground at Saint Margaret Mary School.” Johnston’s statement did not reveal the other participants in his early morning conversation, but City Hall staffers confirm that the first call to City Hall on Johnston’s behalf that morning was made by Dan Bellows. Bellows is a developer whose Ravaudage development will soon be reviewed by the City Commission. Commissioner Steve Leary — another key supporter of Johnston — did not respond to the Voice’s request for comment today.

The Voice also requested comment from Allan Keen, a Johnston supporter who, like Leary, had signed Johnston’s candidacy petition. Mr. Keen declined comment. Dan Bellows did not respond to our request for comment.

Dismissal Documents

Why Did Johnston Withdraw?

In a statement to the Voice, Ross Johnston cites possible “damage” to the city as a prime reason he gave up his quest for Carolyn Cooper’s City Commission seat. “This morning after a great deal of thought and consideration, I have formally dropped my lawsuit against the City of Winter Park and suspended my campaign for City Commissioner. Though the process of the legal discovery actually increased my confidence in our case, it also became clear that winning the suit would result in collateral damage that would be painful to many and would not benefit the city in the long run.”

Cooper Responds

Commissioner Cooper issued a brief statement this morning. “I’m glad this has been resolved. I’m glad to get back to the business of the city.” Cooper also made herself available for an on-camera interview with the Voice. (See below.) Johnston has declined all WPV requests for an on-camera interview.

Cooper and McMacken to Be Sworn in March 25

Clarissa Howard, Director of City of Winter Park Communications Department, told the Voice that “The Official Oath of Office ceremony date for both Commissioner Cooper and McMacken has been set to Monday, March 25, 2013 at 3:30 p.m. . . There is no further legal or Commission action the city needs to take prior to the swearing in.” Ms. Howard added that no other comment would be forthcoming from city staff. City Attorneys Katie Reischmann and Larry Brown also declined comment.

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1/16/13 Story Update:

In Monday’s City Commission meeting, City Attorney Larry Brown answered questions from Mayor Bradley, Commissioner Cooper and city residents regarding Ross Johnston’s lawsuit against the City Clerk.

In response to Commissioner Cooper’s queries concerning her legal status as a candidate, Attorney Brown agreed with Mayor Bradley’s contention that the City Attorney cannot provide legal advice to Commissioner Cooper. He confirmed that Cooper must retain her own attorney and pay her own legal costs to determine the status of her campaign. Cooper responded that as a commissioner who is paid “$118.00 a month . . . It’s very difficult to hire a $500.00 an hour lawyer to tell me . . . whether I’m allowed to campaign.” Cooper asserted that, “My reading of the law leads me to believe that I am no longer an unopposed candidate – that through the law, I am actually an opposed candidate, which would mean I can continue to collect campaign funds and could continue to campaign . . .”

Though the City Attorney was unwilling to comment on the commissioner’s interpretation of election law, he did discuss questions concerning the city’s position in the matter – including whether the court is likely to reschedule the city’s election if Johnston’s lawsuit succeeds and he is placed on the ballot.

City Manager Randy Knight acknowledged that January 25 is the “. . . deadline for getting ballots printed in time for the March election” – implying that any ruling in Johnston’s favor after that time will force the city to delay the election. Attorney Brown replied that in matters like this, courts are “incredibly mindful of the need to act quickly . . . to make a decision so that the ballots can be printed.”

See the video clip below for more on Monday’s exchange between Attorney Brown and the City Commission.

Note: In Monday’s commission meeting, the City Attorney also revealed that a preliminary Circuit Court hearing of this case would be held on Wednesday, January 16 (today). Winter Park Voice attended the hearing and will publish video clips of today’s events in our next update.

1/11/13 Story: The attorney for would-be Commission candidate Ross Johnston filed a Writ of Mandamus with the 9th Circuit Court on Thursday. Attorney Becky Vose is asking the court to compel the City of Winter Park to reverse its disqualification of Ross Johnston and place him on the ballot.

Johnston and his attorney are alleging that the City Clerk , though “polite and helpful” nevertheless “insisted on compliance with matters not dictated by statute, charter or ordinance, thereby wasting considerable time, and directly causing the qualification process to be incomplete before 12:00 noon.”

In the court filing, Johnston’s attorney claims that the City Clerk mistakenly believed that payment of an “election assessment” fee was required by law to be paid only from a campaign treasurer’s account causing the Clerk to improperly refuse Johnston’s personal check. Johnston claims that he and his associates were thereby forced to spend time making different payment arrangements which delayed Johnston’s filing of required papers. The Writ states that Johnston entered Winter Park City Hall “. . . on or about 11:50 a.m.” to begin the qualifying process in the City Clerk’s office.

What Deadline?! Johnston Attorney Vose Says City Got it Wrong

Johnston also contends that both the City Attorney and City Clerk wrongly interpreted Florida law by requiring candidates to submit voter petitions, swear an oath and file a financial disclosure statement by the noon statutory deadline. Johnston’s attorney, Becky Vose, states that “only the first of the {4} numbered sections imposes a mandatory timeframe. The other three do not have such a time restriction.” Vose maintains that the single item out of the four that does have a mandatory timeframe is the Candidate Application, which, Vose claims, was submitted to the City Clerk before noon.

Potential Snag for Johnston: No Timestamp on Crucial Document

One potential snag for Johnston is the lack of a timestamp on his Candidate Application – a form his attorney acknowledges was due by the noon deadline. Johnston’s attorney claims that the un-timestamped Candidate Application was filled out before the required deadline. Vose maintains that Johnston filled out the unstamped Candidate Application before he filled out the Campaign Treasurer form – which was timestamped at 11:58 a.m. According to Vose, Johnston was following City Clerk instructions when he filled out the Treasurer form after the Candidate Application stating that “The City Clerk thereafter told Johnston that he was required to file a form designating a campaign treasurer before qualifying.”

“Seminal” Florida Supreme Court Ruling Important to Case?

The Writ filed by Becky Vose runs to almost thirty pages. Vose devotes many pages to case law and her rebuttal of the Winter Park City Attorney’s Opinion. In her Case Law analysis, Vose frequently quotes – and appears to lean heavily on – a Florida Supreme Court case (Siegendorf v. Stone) in which the court found that “{l}iteral and ‘total compliance’ with statutory language which reaches hypersensitive levels and which strains the quality of justice is not required to fairly and substantially meet the statutory requirements to qualify as a candidate for public office.” Vose criticizes the City Attorney for “not even mention{ing} the seminal case by the Florida Supreme Court on the subject of candidate qualification for office.”

Vose Attacks City Attorney Opinion. Questions Motives.

In the “City Attorney’s Opinion” section of the Writ, Vose excoriates the City Attorney’s Office, claiming it “grossly misstates” city code regarding which documents must be completed by the noon deadline. Vose further claims that the City Attorney has made a “legally absurd statement” supporting the proposition that “the City Clerk can unilaterally impose additional candidate qualification criteria that are contrary to state law . . .”

Vose goes so far as to allege that the City Attorney’s opinion is politically-motivated, “an apparent attempt to please the incumbent city commissioner . . .”

Johnston’s Attorney Hedges Her Bet: Late or Not, Put Johnston on the Ballot

Whether or not Becky Vose’s combative indignation is mostly righteous or merely tactical, it is clear that she’s hoping the court will look beyond timestamps and deadlines — as noted in the very first sentence of her Case Law Analysis: “There are no Florida cases whatsoever that hold (or even imply) that someone who timely begins the qualification process, and completes it in within a reasonable timeframe is disqualified because the application was “late”.

Vose concludes her filing by requesting the court to command the City Clerk to place Ross Johnston’s name on the ballot for Commission Seat 3 and to reschedule a “special election to take place five weeks from the date of an order granting the writ . . .”

Please note: The arguments and citations in this case are too numerous and detailed to be fully explored in a news story. WPVs reporting on these legal documents is a brief account highlighting some aspects of the case. We urge readers who want a fuller understanding of the case to view the sampling of documents available on our website (see buttons below) and to search the public record online and at City Hall.

Writ of Mandamus    Writ Exhibits    Johnston Candidate Filing    City Attorney Opinion

The Voice contacted the key participants in this story asking for comment. None replied by press time except the following:

Ross Johnston told the Voice that “While I have the highest respect for Randy Knight and all of city staff, there is a difference of opinion in regards to the qualifying process. I believe our election laws are written to encourage participation not discourage it. The citizens of Winter Park deserve a choice.”

City Manager, Randy Knight’s office issued a statement that “The only comment the city will make on this petition is that we are reviewing the documentation and will respond at the appropriate time.”

Asst. City Attorney Katie Reischmann declined to comment citing ongoing litigation.

Related Story >> City Commission Election Canceled?! Last-Minute Cooper Challenger Disqualified. Decision to be Appealed.

Winter Park Voice will continue to update this story as it develops.

City Commission Election Canceled?!

Last-Minute Cooper Challenger Disqualified. Decision to be Appealed

City Commission Election Canceled?!

Time ran out yesterday for would-be candidates planning to run against Commissioners Cooper or McMacken. Cooper and McMacken – holders of Commission seats 3 and 4 respectively – are up for re-election in March of 2013. Prior to Tuesday, neither Commissioner had any opposition. The deadline for opposing candidates to file was Tuesday, January 8 – no later than noon.

Just before noon on Tuesday, Ross Johnston, a Winter Park entrepreneur/consultant, sat with City Clerk Cindy Bonham and began the process of filing the necessary papers to challenge Commissioner Cooper for Commission seat 3. According to the City Clerk and other sources at City Hall, Mr. Johnston filed some papers just prior to the noon deadline, but many necessary papers, including required petitions from city residents were filed after noon.

City Says Required Petitions & Other Documents Submitted Late

WPV has obtained digital copies of Johnston’s filing. A review of the petitions does not show time stamps on the petitions, some of which were signed by prominent Winter Parkers including WP Commissioner Steven Leary, Daniel Bellows and Allan Keen. However, despite the lack of apparent time-stamping on some documents, the city maintains that some petitions and other documents were submitted 15, 30, 40 minutes late or later.

In an interview with the Voice, Johnston admits that his plans were paced by a “Last-minute agreement” among supporters that enabled him to move forward with his filing.

According to the City Clerk, the city was first alerted to Johnston’s interest in filing when they received a call about an hour before the noon deadline. In an interview with the Voice, City Manager Randy Knight confirmed that the 11 AM caller was local developer Dan Bellows, inquiring about candidate filing specifics. 15 minutes later, a representative for Johnston picked up the city’s “Election Candidate Package.” Ms. Bonham told the Voice that Johnston himself appeared at City Hall just before noon and sat in her office filling out paperwork.

Johnston: My Application Submitted Timely — Calls City Attorney Decision “Possibly Political”

During the Voice’s initial interview with Johnston Tuesday afternoon, he expressed concern that his submission may be disqualified by city election rules, but vowed to “Exercise every option” to move his candidacy forward. At the same time, city officials were consulting with the City Attorney’s office asking for an opinion on the validity of Johnston’s filing. This morning, less than 24 hours after Johnston’s filing, the City Attorney’s office issued a written opinion concluding that “No facts have been submitted to show extraordinary circumstances in Mr. Johnston’s case. It does not appear that Mr. Johnston was in the office with completed papers at noon. In fact, it is clear that Mr. Johnston was still submitting petitions close to 1:00 p.m. Because the complete package was close to an hour late, and there are not any special circumstances, it appears that the Clerk should notify Mr. Johnston that his application package was incomplete at the end of the qualifying period.”

The opinion also cites City Code that appears to prohibit filings after the noon deadline, ”Section 42-7(a) provides that in order to qualify, the potential candidate must do four things by noon on January 8th: 1) file an application; 2) have the application endorsed by not less than 25 registered voters; 3) swear to an oath set forth in the code, which substantially tracks the one required by Fla. Stat. 99.021; and 4) file a financial disclosure statement, also required by Fla. Stat. 99.061(5). Section 42-7(b) provides that it is each candidate’s duty to comply with the code, but that the Clerk is to notify each candidate of any “defect or deficiency” in the application. The candidate can make “corrections or additions” any time before the end of the qualification term “but not thereafter”. In summary, the end of the qualification term is January 8th at noon. No additions to the qualifying packets noted by the Clerk are to be made after noon on January 8th.”

The City Attorney’s office did not reply to WPVs request for comment as of press time.

Johnston Hires Attorney Becky Vose. Appeal Moves to Circuit Court.

Earlier today, Mr. Johnston informed the Voice that he has retained attorney Becky Vose to represent him. Ms. Vose is an experienced city attorney with a wide-ranging practice who has represented numerous Central Florida cities, as well as real estate developers, including Dan Bellows and the Sydgan Corporation.

Ms. Vose told the Voice that she is currently preparing a Writ of Mandamus and will file it with the Circuit Court within the next 24 hours. Ms. Vose is seeking to compel the City of Winter Park to qualify Johnston for the City Commission race and place him on the March, 2013 ballot. Vose stated she believes that the City Attorney’s office has “misquoted one ordinance” as applying to this case – which Vose believes does not apply — and is ignoring case law that allows candidate qualification if filing paperwork is in process (though not complete) prior to a statutory deadline.

Appeal Scrambles Cooper Campaign Plans. McMacken Home Free.

Tom McMacken will face no opposition in this year’s Commission race – effectively ending his “campaign” for Commission Seat 4. Commissioner Cooper’s path is not so simple. She is placed in a difficult position – not knowing whether she will have a challenger in the race. In a statement to the Voice, Commissioner Cooper affirms that “Last night, the City Manager called to confirm that no candidate has qualified to oppose me. I am proud to continue to represent the citizens of Winter Park . . .”

Ms. Cooper’s statement also noted that her “campaign kick off gathering” which had been scheduled for January 10, will now be replaced with a “celebration” scheduled at the same time and place.

According City Manager Randy Knight, an election that is uncontested as of the candidate filing deadline will be canceled, per city/election rules. Unopposed candidates are then able to be sworn in within a few weeks. However, an appeal puts that process on hold. City officials we spoke with are uncertain about whether the timing of the election will be affected if Johnston’s appeal succeeds at some point in the next few weeks.

Winter Park Voice will continue to update this story as it develops.

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