1 / 3
Fort Myers Beach councilmembers Karen Woodson (left) and John King are facing a recall election on Nov. 4 based on allegations they have denied. File photos
2 / 3
Former Fort Myers Beach Mayor Ray Murphy is heading the committee to recall Town of Fort Myers Beach Council Member Karen Woodson. Murphy won a motion to dismiss Woodson’s suit to stop the recall of her seat. File photo
3 / 3
Former Fort Myers Beach Councilman Bill Veach. File photo
[expand]
close
A Lee County judge has dismissed Fort Myers Beach Councilmember Karen Woodson’s lawsuit to stop the recall against her while denying an attempt by a recall committee to dismiss the suit filed by Fort Myers Beach Councilmember John King to stop the recall against his seat.
The decision could potentially lead to the recall effort against King being invalidated though barring any further court actions, would not affect the outcome of a recall election for Woodson scheduled for Nov. 4.
Lee County Circuit Court Judge Kyle Cohen issued the split-ruling Tuesday on the motions to dismiss the lawsuits brought by King and Woodson to stop the recall. The motions to dismiss were brought by former councilmembers Ray Murphy and Bill Veach, who head the recall committees against King and Woodson. Murphy heads the committee to recall Woodson, while Veach heads the committee to recall King.
While Cohen denied the motion to dismiss King’s lawsuit and found that one of the three allegations against him in the recall petition was “legally insufficient” and thus “fatal” to the recall petition, he has not yet ordered any change to the recall election or given an order to the Lee County Supervisor of Elections which would cut off the recall election.
The recall election is still proceeding for Nov. 4, with ballots having already been printed and votes currently being taken place through mail-in voting.
Michael Pizzi, an attorney representing Murphy and Veach, said that unless the court issues an injunction ordering a stay of the election, the recalls and litigation will go forward.
“The denial of the motion to dismiss (King’s lawsuit to stop the recall), means that the case goes forward toward further litigation and so does the election unless there is an injunction,” Pizzi said. “I am happy the judge found that all of the grounds for Woodson are valid and that two of the grounds for King are valid. We respectfully disagree with the judge’s opinion on the Charter issue on King and are considering our options.”
Pizzi said he expects to file a motion to reconsider the portion of the judge’s ruling on King’s suit in which he found one of the grounds for the petition to be “legally insufficient,” which potentially paves the way for a decision to invalidate the recall petition for King. The allegation in question involves whether King dictated the removal of Town contract employees, as the recall petition alleges.
According to the Lee County Supervisor of Elections, King’s name can not be removed from the ballot at this stage, though a notice could be placed at the polling booth in the event a judge ordered that votes to recall King would not be counted.
“If the court decides that votes for a particular candidate should not be counted, then those votes will not be tallied,” Lee County Supervisor of Elections spokesperson Gaby Aguirre said. “The candidate in question will, however, remain on the ballot, as the ballots have already been printed and mail ballots are currently in the process of being sent to voters.”
Aguirre said the date of the election can not be changed, though if a judge did rule that recall votes would not be counted, notices would be placed at the polling location on Nov. 4 that a vote for a specific candidate “may not be counted.”
Cohen found that the grounds cited by the recall committees in their petitions against Woodson were legally sufficient though one of the three allegations against King was legally insufficient. Cohen found that the insufficiency of “just one ground in the petition is fatal since it causes the entire recall petition to be deficient as a matter of law.”
In his rulings, Cohen stated that under Florida law the court’s role in the case “is limited to reviewing the legal sufficiency of the petition. It is not for the Court to determine the truth or falsity of the charges against the elected official. However, because recall of an elected official is an ‘extraordinary proceeding’ the burden is ‘on those seeking to overturn the regular elective process to base the petition upon lawful grounds or face the invalidation of the proceedings,’” Cohen wrote.
In his ruling against the motion from Veach to dismiss King’s lawsuit, Cohen said “there is no dispute that the proper recall procedures were followed. Instead, King contends that the allegations in the petition were insufficient to trigger the municipal recall status.”
While Cohen’s ruling does not determine whether King or Woodson violated any laws or town policies as alleged, he found that the charge in the petition against King that he allegedly dictated “the removal of Town contract policies” was too vague since it did not mention the names of any town contract employees or job titles that were affected by the allegations.
“Without identifying the employees at issue, or at least their position with the Town, the Court has no way of knowing from the recall petition whether King’s conduct was prohibited” by the town’s charter, “or was within his authority.”
“Neither would the voters,” Cohen said.
Cohen found that the allegations against King and Woodson that they violated Florida’s Sunshine Law to seek out a law firm to replace the town’s former attorney John Herin Jr., was legally sufficient as a charge of misfeasance or malfeasance to meet the requirements for a recall petition though he questioned whether it actually violated the town’s Charter.
He also found that the allegations that King and Woodson accepted gifts from parties seeking land use approvals from the Town Council were sufficient grounds to be recalled as they violated the town Charter.
Woodson was separately accused of violating the state’s Sunshine Law by allegedly speaking with Vice Mayor Jim Atterholt about the Fort Myers Beach Pier. Cohen found that allegation to also meet the state’s statute for a recall.
Cohen did not opine on the merits of any of the allegations.
King and Woodson have denied all of the allegations and have filed a defamation suit against Murphy and Veach. That defamation suit was not part of Cohen’s ruling Tuesday.
“I am appreciative of Judge Cohen’s ruling,” King said. “I believe the recall petitions against Karen and myself should both have been thrown out. I hope it ends here. Enough time, taxpayer money and rancor have been spent on this.”
The Town of Fort Myers Beach is funding the lawsuits by King and Woodson to stop the recall, after the Town of Fort Myers Beach Council voted to reimburse them for any “reasonable attorney fees” to aid their defense against the recall. More than $20,000 in combined reimbursement for attorney fees from King and Woodson have been submitted to the town to date.
King said it was his understanding that he is “out of the recall election,” despite his name still appearing on the recall ballot, “pending any appeal by the recall committee.”
Pizzi said that was not the case.
“Unless an injunction is issued (by the court), then the litigation proceeds,” Pizzi said.
Based on a statement from the office of the Lee County Supervisor of Elections, until a judge orders that votes to recall King would not be counted, they would not act to post a notice to voters at the ballot box.
“We have not yet received an official directive from the court,” Lee County Supervisor of Elections spokesperson Gaby Aguirre said.
King and Woodson are both being represented by attorney Morgan Bentley. Bentley said that while a final order has not been issued by the judge regarding both cases, he believes the finding by Judge Cohen that one of the allegations in the petition against King was legally insufficient, was similar to a final order and was grounds for invalidating the entire recall petition.
Bentley said the next steps in the process would depend on actions by the judge and any appeals made by Veach and his attorney.
Bentley said another question to be decided would be what notices are sent out to voters regarding the judge’s decision.
“Nobody knows exactly what it’s going to look like,” Bentley said.
Bentley said Woodson would appeal the ruling by Judge Cohen to dismiss her suit. Bentley said he expects the appeal will not be heard until after the Nov. 4 election though the aim would be to invalidate any results of the election.
Veach and Woodson did not return messages seeking comment.
The recall election is the first in Lee County in at least 70 years.