Agenda 02/09/2010 Item # 9H
EXECUTIVE SUMMARY
Agenda Item No. 9H
February 9, 2010
Page 1 of 6
Recommendation to appoint County Commissioner(s) to serve on Canvassing Board for
the 2010 Election.
OBJECTIVE: To appoint a commissioner and an alternate to serve on the Collier County
Canvassing Board for the 2010 Election.
CONSIDERATION: Florida Statutes 102.141 states, in relevant part, as follows:
(I) The county canvassing board shall be composed of the supervisor of elections; a
county court judge, who shall act as chair; and the chair of the board of county
commissioners, In the event any member of the county canvassing board is unable to
serve, is a candidate who has opposition in the election being canvassed, or is an
active participant in the campaign or candidacy of any candidate who has opposition
in the election being canvassed, such member shall be replaced as follows:
(c) If the chair of the board of county commissioners is unable to serve or is
disqualified, the board of county commissioners shall appoint as a substitute member
one of its members who is not a candidate with opposition in the election being
canvassed and who is not an active participant in the campaign or candidacy of any
candidate with opposition in the election being canvassed.
(d) If a substitute member cannot be appointed as provided elsewhere in this
subsection, the chief judge of the judicial circuit in which the county is located shall
appoint as a substitute member a qualified elector of the county who is not a
candidate with opposition in the election being canvassed and who is not an active
participant in the campaign or candidacy of any candidate with opposition in the
election being canvassed.
Paragraph one (I) sets forth the required composition of the canvassing board and notes those
situations in which the identified canvassing board members might be disqualified to serve.
Subsection (I)(c) states the procedure in selecting a replacement member to the canvassing board
in the event that the county commission's chairman is unable to serve. In the event that a
substitute member from the county commission cannot be selected, the Chief Judge of the
Twentieth Judicial Circuit shall appoint a qualified substitute member from Collier County.
Recently, the Florida Division of Elections further defined the circumstance by which a
commissioner is disqualified to serve on a canvassing board by becoming an "active participant"
in the campaign or candidacy of any candidate who has opposition in the election being
canvassed. To be an "active participant," one undertakes an action intentionally to demonstrate
or generate public support in favor of a candidate. Merely making a campaign contribution may
not be sufficient, in itself, to become an "active participant." Rather, an active participant would
include activities such as: "being a member of an election or re-election committee for a
candidate; public endorsement with or without financial support of a candidate; holding
campaign signs, wearing a campaign tee-shirt, or other public display of support for a candidate;
signing an endorsement card for a candidate; attending a candidate's campaign fundraiser; or
Agenda Item No. 9H
February 9,2010
chairing or co-chairing an ongoing election campaign or fundraiser for a candidate." See ~2 of 6
07 (October 15, 2009).
FISCAL IMPACT: None.
LEGAL CONSIDERATIONS: This item has been reviewed and approved by the County
Attorney's Office and is legally sufficient for Board action-SRT.
GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated
with this Executive Summary.
RECOMMENDATION: That the Board of County Commissioners select a commissioner and
an alternate to serve on the 2010 Collier County Canvassing Board who: (I) is not a candidate
with opposition in the election being canvassed, and (2) is not an active participant in the
campaign or candidacy of any candidate with opposition in the election being canvassed.
2
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~LOR1DA DEP~~~~NT 01 STAT~
Agenda Item No. 9H
February 9, 2010
Page 3 of6
CHARLIE CRIST
Governor
KURT S. BROWNING
Secretary of State
October 15, 2009
Honorable Sharon L. Zeller
County Court Judge
Broward County Courthouse
Fort Lauderdale, Florida 33301
RE: DE 09-07
Canvassing Board - Disqualification of Member;
!i!i 102.141(1), Florida Statutes
Dear Judge Zeller:
This letter responds to your request for an advisory opinion. You are the Administrative County
Judge for Broward County and, as such, you serve as the chair of the County Canvassing Board.
As a local officer having election-related duties, the Division of Ejections has authority to issue
you an opinion pursuant to section 106.23(2), Florida Statutes (2009),
Section 102.141(1)(a)-(d), Florida Statutes (2009), disqualifies a canvassing board member or a
substitute member of a canvassing board if the member is a candidate with opposition in the
election being canvassed or is an "active participant" in the campaign or candidacy of any
candidate who has opposition in the election being canvassed.
You ask if whether any or al] of the following activities by a member of the canvassing board
constitute being an "active participant" in the campaign or candidacy of any candidate who has
opposition in the election being canvassed:
Being a member of an election or re-election committee for a candidate
Public endorsement with or without financial support of a candidate
Holding campaign signs, wearing a campaign tee-shirt, or other public display of support
for a candidate
Signing endorsement card for a candidate
Attending a fundraiser for a candidate
Chairing or co-chairing an ongoing election campaign or fundraiseI' for the candidate
R. A. Gray Building . 500 South Bronough Street . Tallahassee, Florida 32399-0250
Telephone: (850) 245-6500 . Facsimile: (8501 245-6125
Agenda Item No. 9H
February 9,2010
Page 4 of 6
Honorable Sharon L. Zeller
October 15, 2009
Page 2 of3
As we stated in Division of Elections Opinion 08-] 0 (September 26, 2008):
The Election Code does not define "active pm1icipant," nor have we found it
defined in any Florida appellate case law or Attorney General Opinions. We
believe the focus must be on the modifier "active" in the phrase "active
participant." If the member is a passive participant, tbe member would not be
disqualified from being a member of a canvassing board. We do not believe that a
monetary contribution to a candidate's campaign by itself makes a canvassing
board member an "active participant" in the campaign.
Your questions now cause us to further define what makes one an "active participant" under
section 102.141, Florida Statutes. Prior Division of Elections' informal opinions concerning this
section have interpreted being an "active participant" to include activities such as publicly
endorsing a candidate, displaying a candidate's campaign signs, or soliciting votes for a
candidate. Stated more broadly, an "active participant" in a campaign is one who undertakes an
action intentionally to demonstrate or generate public support of the candidate. This does not
include merely making a campaign contribution. While a contribution to a candidate becomes a
public record by operation of law (see section l06.0706, Florida Statutes (2009)), it cannot be
said the donor is making the contribution for the intentional purpose of demonstrating or
generating public suppOli for the candidate. In fact, the donation does not become a public
record until the candidate files the campaign finance reports on the required due dates, which
may be months after the contribution is made. See Ii 106.07(1), Florida Statutes (2009).
Therefore, one who merely makes a campaign contribution is a "passive participant" in a
candidate's campaign. Division of Elections Opinion 08-10 (September 26, 2008).
Accordingly, to address your specific questions: Being an "active participant" would include
being a member of an election or re-election committee for a candidate; public endorsement with
or without financial support of a candidate; holding campaign signs, wearing a campaign tee-
shirt, or other public display of support for a candidate; signing an endorsement card for a
candidate; attending a candidate's campaign fundraiser; or chairing or co-chairing an ongoing
election campaign or fundraiser for a candidate. In each ofthese activities one is undertaking an
action intentionally to demonstrate or generate public support for the candidate.
SUMMAR Y
To be disqualified as a canvassing board member, the member must be an "active participant" in
the campaign or candidacy of any candidate who has opposition in the election being canvassed.
An "active participant" means that a canvassing board member undertal,es an effort intentionally
to demonstrate or generate public support of a candidate beyond merely making a campaign
contribution.
R. A. Gray Building . 500 South Bronaugh Street . Tallahassee. Florida 32399-0250
Telephone: (850) 245-6500 . Facsimile: (850) 245-6125
Agenda Item No. 9H
February 9, 2010
Page 5 of 6
Honorable Sharon L. Zeller
October 15, 2009
Page 3 of 3
The following activities would make a canvassing board member an "active participant" in the
candidate's campaign or candidacy: Being a member of an election or re-election committee for
a candidate, public endorsement with or without financial support of a candidate; holding
campaign signs, wearing a campaign tee-shirt, or other public display of support for a candidate;
signing an endorsement card for a candidate; attending a candidate's campaign fundraiser; or
chairing or co-chairing an ongoing election campaign or fundraiseI' for a candidate. However,
the mere giving of a campaign contribution would not make a canvassing board member an
"active paJ1icipant."
~
Donald L. Palmer
Director, Division of Elections
R. A. Gray Building . 500 South Bronaugh Street . Tallahassee, Florida 32399-0250
Telephone: (850) 245-6500 . Facsimile: (850) 245-6125
Agenda Item No. 9H
February 9, 2010
Page 6 of6
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
Item Summary:
9H
Recommendation to appoint County Commissioner(s) to serve on Canvassing Board for the
2010 Election.
Meeting Date:
2/9/20109:00:00 AM
Approved By
Scott R. Teach
Deputy County Attorney
Date
County Attorney
County Attorney
212120103:12 PM
Approved By
Leo E. Ochs, Jr.
County Manager
Date
County Managers Office
County Managers Office
212120104:33 PM