Candidate challenges state statute
Sanibel City Council candidate Frances Slane has filed a complaint against the City of Sanibel to protect her employment with the city if she wins a seat in the March 3 election.
The action was filed by The Amlong Firm in Fort Lauderdale on behalf of Slane, which will seek an injunction on the City of Sanibel terminating her position as accounts payable supervisor in the Finance Department if she is elected to the City Council.
Slane earns an annual salary of $71,665 working for the City.
Slane is running for one of two seats on the City Council against incumbent Jim Jennings and Chauncey Goss. The top two vote getters will win the available seats.
“The people know who employs her, and if the people of Sanibel want Frances Slane on the city council, they should be able to have her,” said Slane’s attorney William Amlong. “I don’t see any conflict of interest of her being on City Council.”
As of Thursday, Sanibel City Attorney Kenneth Cuyler declined to comment on the suit, because the complaint has not yet been published by the Circuit Court of the 20th Judicial Circuit of Lee County.
The action resulted from an opinion by Cuyler on Monday, Feb. 9, in a memo to members of the City Council.
In it, Cuyler writes the “applicable” state statutory provision is Section 112.313(10), which in essence prohibits any City employee from continuing employment with the City while holding office as a member of the City Council.
Cuyler writes, “The above statute is clear that a municipal employee is prohibited from holding office as a member of City Council and also continuing employment as an employee of the City of Sanibel.”
The City Charter does not have any language regarding a city employee holding a seat on the City Council.
The complaint filed declares Florida state statutory 112.313(10) as unconstitutional and enjoins Sanibel from terminating her employment on the grounds she has been elected to the City Council.
Slane is also asking for costs be paid by the City, “in which the amount in controversy is more than $15,000, exclusive of costs and interests.”
“She is merely asking for court to say that the City of Sanibel can’t throw her out or fire her (if she is elected),” Amlong said. “If the people of Sanibel want her in office, they can have her in office.”
There is very little case law relating to Section 112.313(10). Cuyler states in his memo, the only case law which exists and that relates to “tenured teachers and school board elective office. The appellate court held that no statutory or ethical conflict existed where the teacher served on the school board, while she was a tenured teacher on leave of absence without pay.”
In another similar case, the court ruled that a teacher who took unpaid leave as recommended by the school superintendent, would not be in violation of Section 112.313(10) while serving on the school board.
In the memo, Cuyler writes the two cases are “inapplicable” to Slane’s case.
“General employees who are hired by the City Manager are not contract employees and such employees are not authorized to take a leave of absence, paid or unpaid, at the their discretion,” Cuyler writes in the memo.
The memo concludes Cuyler’s opinion that, “If a City employee were to be elected to the City Council and the employee failed to resign, a resignation would be imposed or imputed to the employee prior to holding office pursuant to the authority of Section 112.313(10), Florida Statutes.”
Amlong said Slane’s freedom of speech rights are being violated, as well as her rights as being treated like any other Sanibel resident, who can run for City Council without the threat of losing their livelihood.
“The courts are told that political speech, including running for office, is protected speech,” Amlong said. “She owns two pieces of property on Sanibel, she pays taxes. How her tax money is spent, is important. Overall, she has the freedom to say the City is not doing this right.”
In the complaint, it states Florida Constitution law about “political power” not “to deny or impair others retained by the people”. It also states “basic rights” in which “all personsare equal before the law and have inalienable rights, among which are the right to enjoy and defendliberty.”
Amlong also cited the Florida Statute 447.209 in Slane’s defense, about “Public Employer Rights.” It states public employers can only “take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons.”
“First of all, she is very confident in getting elected and she is getting a lot of support from community members,” Amlong said. “I am not planning on her losing. When or before she wins, we will be filing a motion for a preliminary injunction for court to say ‘Stop! You can’t fire her.'”
The election for the two City Council seats will be held Tuesday, March 3.