HI controversy - Motion to put developer on BOC ballot fails
HOLIDAY ISLAND -- After two and a half hours of commissioner and public comment Monday, with input from its attorney, the Holiday Island Board of Commissioners voted 3-2 to deny a motion to put developer Tom Dees on the December ballot for commissioner.
The issue was on Monday's agenda because Dees failed to pay his overdue assessments by close of business on Oct. 17, in accordance with a regulation amendment made by the board in August, in order for his nomination to be valid.
Dees paid his assessments on Oct. 20 and was nominated that night as a candidate for commissioner.
In light of this, a letter by Dr. Terry Bushay, Dees' nominator, and another by Roxie Howard questioned the board's right to deny Dees' nomination. At Monday's meeting, 13 people got up to speak, some of them more than once, most of them in favor of putting Dees on the ballot.
Attorney Tom Morris also answered several questions from the board and the public.
The issues raised were whether the district has the legal right to make nomination and voting rules that are more restrictive than the state's, whether requiring property owners to be current on their assessments and utility bills to be candidates constitutes a poll tax and whether an amendment made in a regulation but not specified in detail on the official election notice is sufficient statement of the nomination requirements.
Howard asked what statutory authority HISID has to create voting regulations, whether being current on assessments to be nominated is a poll tax and also whether HISID's mailing to one homeowner, i.e., the husband instead of including both the deed-holder husband's and wife's names invalidates the election.
"The state laws are broad. If you want to go further than that, you can," Morris said, adding that there is no conflict with state law if the district wants to make nomination or voting requirements more restrictive.
Some property owners disagreed.
"Tom is right; local governments can be more restrictive, but the Supreme Court struck down the voter ID law in Wisconsin because it was too restrictive," said David Bischoff. "You can pass any law you want, but you have passed a more restrictive law, and you can't enforce it."
Bischoff said he has done a lot of research on this issue stemming back to his illegal exaction lawsuit against the district, which was settled out of court.
Morris said the requirement to be current on assessments and utility bills is not the same as a poll tax, which requires all voters to pay a fee in order to vote.
Joyce Lessely differed.
"The recent ruling about the state ID is that it is illegal -- it is a form of poll tax because someone is required to spend money to get a voter ID," she said.
"Assessments are not like ad valorem taxes; they are for the upkeep [of the district]," Morris said. "It's different from being disenfranchised from the right to run for office. If [property owners] haven't paid their assessments, they're not a property owner in good standing. And you're not allowed to use the amenities here if you're not current in your assessments."
Morris said he believes Dees was given "constructive notice" of nomination requirements because the board passed an amendment to its regulations, and it is up to property owners to be informed about what the board passes.
Asked whether he is aware of legal precedent regarding what constitutes sufficient official notice in other instances, he said he is sure that it exists, but he doesn't know what it is.
Asked whether he is aware of litigation regarding credit card companies not giving sufficient disclosure of fees, due dates and other requirements to remain in good standing, he said, "I do know of litigation like that, but I think it's dissimilar [to this]."
Commissioner Greg Davis said, "I've talked to a couple of attorneys who are in complete opposition to [Morris]. Let Tom Dees run, and let the voters speak."
Several people brought up concerns about the district being sued over the issue, for either allowing or not allowing Dees on the ballot.
Chairman Linda Graves said, "I think that if we do this, we set a precedent that if people don't want to follow the rules, we'll get sued. We could get sued either way."
Davis moved and Ken Mills seconded to put Dees on the ballot. The motion failed with, Graves, Ken Brown and David Makidon voting nay, and Davis and Mills voting aye.
Bushay said by phone later he has no plans to pursue the issue any further. Dees said he has no comment.