School board considers lawsuit to force county to conduct special election

Members want half-cent sales tax referendum on ballot ahead of HB5 deadline


FLEMING ISLAND – The Clay County School Board said it may sue for a special election to get a half-cent sales tax in front of voters this year.

The school board wanted the referendum on the ballot to fund more than $300 million for maintenance and repairs. The Board of County Commissioners denied the school board’s request on July 9 for a special election saying it and county residents weren’t given time or enough details to study the proposal.

The school board appeared to be getting ahead of House Bill 5 which will limit tax increase requests to general elections. The law will go into effect on Jan. 1, 2020. If the school board can’t win a special election, it will have to wait 16 months to put it in front of voters.

The school board clearly isn’t willing to wait that long.

“[The BCC] failed to follow the law; they failed to do their job and they failed to follow their attorney’s advice,” School Board Vice Chairman Janice Kerekes said. “Our attorney had already been looking into legal action anticipating a worst-case scenario so we’ve already contacted a law firm in Tallahassee and they should be moving forward with a case very soon.”

The BCC had no jurisdiction to deny the request, Kerekes said. The reason the resolution was presented to the BCC was the election would have to be performed by the supervisor of elections, who is a constitutional officer.

“The reason they had to vote is because they set the budget for constitutional officers for the county so the supervisor of elections answers to the BCC,” Kerekes said. “We pass the resolution, give it to our counterpart, which is the BCC, and they instruct the supervisor of elections on the ballot.”

The argument between Kerekes and the BCC stems from the use of the word “shall” in Florida Statute.

“Basically what [Florida Statute] 212.055 and its subsection provides is that the school board can adopt their own resolution,” County Attorney Courtney Grimm said. “It has to meet certain requirements under the statute and then it will be forwarded to the board. Then, the board at that time shall place it on the ballot.”

Grimm said she interprets the word “shall” in that statute as mandatory. She also said that there are various interpretations and that some courts interpret shall as procedural and not always mandatory. Because of this, the BCC felt that it had the right to deny the school board’s request.

Kerekes, who has spearheaded this sales tax resolution from the start, said the word means mandatory and that the BCC failed to follow Florida Statute.

“We’re going to request that they do their job,” Kerekes said. “The BCC does not have the authority to govern the school board like they did. That’s why the word shall is in the statute. They didn’t care for our plan enough to put it forward and they want us to refine it, but what the BCC doesn’t understand is that it and the school board are two separate governing entities. We don’t tell them how to do their job and they aren’t to tell us how to do ours.”

While Kerekes wants legal action, school board chairwoman Carol Studdard said the board is examining their options before moving forward.

“We are still exploring our options and should make a decision within the next day or two,” Studdard said. “It’s not something we have to talk about at the next meeting. If we decide to take legal action, we don’t have to have a meeting or vote on it or anything.”

BCC Chairman Mike Cella said he hopes the school board doesn’t pursue legal action, but understands that they will do what they feel is best.

“Obviously, we hope they don’t pursue legal action and we hope they take our recommendation as it was given during the course of our meeting because it wasn’t just us that had those thoughts,” Cella said. “All of our constituents had those thoughts too and those constituents are their constituents.

“We hope they take that suggestion and we hope that they don’t go down the legal road but they have to make their own determination as to what they’re going to do with that. Otherwise, we made our request and sent it back to them so now we’re just waiting for their determination of what they’d like to do.”

Kerekes said she’s not sure when a possible suit will be filed, but she expects the suit to be settled in as little as eight days.


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