School board won’t get special election for half-cent sales tax

Judge: Florida statute gives BCC the authority when to set elections

Wesley LeBlanc, Staff Writer
Posted 8/16/19

GREEN COVE SPRINGS – A judge ruled Thursday taxpayers won’t be voting on a half-cent sales tax during a special election this November.

Judge Steven Whittington said the Clay County School …

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School board won’t get special election for half-cent sales tax

Judge: Florida statute gives BCC the authority when to set elections

Posted

GREEN COVE SPRINGS – A judge ruled Thursday taxpayers won’t be voting on a half-cent sales tax during a special election this November.

Judge Steven Whittington said the Clay County School Board had the right to ask for a referendum to raise $318 million for maintenance projects, but it was up to the Board of County Commissioners to decide when to hold the election.

BCC wanted to wait until the general election in 2020 because turnout typically is low during special elections. The school board wanted to get ahead of House Bill 5 that soon will prohibit special elections to raise taxes. The bill, already signed by Gov. Ron DeSantis, will go into effect on Jan. 1.

“There is nothing that expressly grants to a school board the authority the SBCC (school board) claims it possesses,” Whittington said in his filed ruling. “Such express language does not exist in the statute.”

The ruling said the school board’s authority wasn’t expressed, but that it was implied. Whittington said it wasn’t essential for the school board to have the unilateral control it claimed to have within Florida statute.

“While the school board may want complete control over when the resolution goes onto a ballot, it is not necessary or essential for them to have that control in order for them to complete the task of levying a sales surtax,” Whittington said.

The ruling hinged on implied rights versus expressed rights. Whittington determined Florida statute gave the BCC the expressed right to decide whether to conduct a special election.

“The clear conclusion from the above examples is that when the Legislature wants to grant to the district school boards the authority to directly place a resolution on the ballot, it says so,” Whittington said in his ruling. “When the Legislature wants to grant to the district school boards the authority to select the type of election for its resolution, it says so. And when the Legislature wants to grant to some other governmental entity the duty of placing a school board resolution on the ballot, it says so.

“In the statute at issue here, for whatever reason, the Legislature did not say the district school boards have the authority to either select an election, or to place one directly on the ballot. What the Legislature did say is that the county commissioners have the duty of placing the resolution on the ballot.”

The school board attorney Jon Moyle argued a week earlier giving the BCC this kind of ruling would create a “slippery slope.” With policy-making authority comes the discretion to decide whether to levy a sales surtax, Whittington said. Any attempt by the BCC to undermine that authority through unnecessary delay, would constitute an abuse of its discretion.

Whittington said the court didn’t need to determine if the BCC crossed the line.

“In this case, the Board has stated, through its individual commissioners at the July 9, 2019 public meeting, and through its counsel at the hearing, that it intends to place the Resolution on the ballot at the next general election, in November 2020,” Whittington said in his ruling. “The Board’s stated reasons for doing so are not unreasonable and therefore do not constitute an abuse of discretion.”

BCC Chairman Mike Cella was pleased the ruling.

“This is a win for taxpayers and voters of the county,” Cella said. “We of course have to thank our legal team, county attorney Courtney Grimm and her help (chief assistant county attorney Frances Moss and assistant county attorney Jody Brooks). They defended our position well and now that we have this ruling, hopefully we can move on and put (the sales tax) on the ballot for November 2020.”

Cella said he’s glad taxpayers will have additional time to study the proposed tax increase.

The school board can appeal the ruling, or it can do what the BCC originally asked: fix the discrepancies and ask for the referendum to be on the general election ballot in 2020.

Chairwoman Carol Studdard said the school board is exploring its options and hopes to have a response by Monday.

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