       Third District Court of Appeal
                               State of Florida

                            Opinion filed May 3, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D17-733
                          Lower Tribunal No. 17-5123
                             ________________

  Gonzalo C. Sanchez, as Chairman of the Recall Committee, and
   Providing Effective Government for all Residents, a political
                           committee,
                                   Appellants,

                                        vs.

      Orlando Lopez, individually and as Mayor of the City of
                           Sweetwater,
                                    Appellee.

      An Appeal from the Circuit Court for Miami-Dade County, Rodney Smith,
Judge.

     Kuehne Davis Law, P.A., and Benedict P. Kuehne and Michael T. Davis;
and KYMP and Juan-Carlos Planas, for appellants.

      Carballo Law, P.A., and Joseph A. Carballo and John Rodriguez; Coffey
Burlington, P.L., and Kendall Coffey and Scott A. Hiaasen, for appellee.

Before LAGOA, FERNANDEZ and LUCK, JJ.

      FERNANDEZ, J.

      Appellants Gonzalo C. Sanchez, etc., et al., appeal the trial court’s final

judgment concluding that the recall petition filed against appellee, Sweetwater
Mayor Orlando Lopez, did not state a valid ground for neglect of duty pursuant to

the City Charter. We agree with the trial court that the recall petition, filed

pursuant to section 100.361, Florida Statutes (2009), is legally insufficient as a

matter of law and therefore affirm the court’s final judgment.

         Appellants sought the recall of the mayor on the grounds that he failed to

perform his duties as section 4.01(d)(10) of the City Charter requires.            They

alleged in the recall petition, among other things, that the mayor failed to attend

numerous commission meetings, or provide staff to City Budget Workshops,

which forced the cancellation of meetings and prevented commissioners from

addressing important financial issues.1          The mayor sought declaratory and

1   The entire operative text of the petition reads as follows:

         I, the undersigned registered elector in Sweetwater, Florida, petition
         the Sweetwater City Clerk to RECALL Mayor Orlando Lopez
         pursuant to Section 7.01, Article VII of the Sweetwater City Charter,
         which allows for all elected officials to be recalled and Florida
         Statutes, section 100.361 which provides the procedure. Mayor Lopez
         should be recalled for neglect of duty as he has failed to perform his
         duties required by Section 4.01(d)(10) of the City Charter. On
         numerous occasions, including June 10, 2016, Mayor Lopez failed to
         attend, or provide staff to City Budget Workshops, forcing their
         cancellation and preventing Commissioners from addressing
         important financial issues. Mayor Lopez has also missed numerous
         meetings of the Sweetwater City Commission, including September
         15th and 30th, as well as October 3rd and November 16th of 2016. As
         the chief administrator of the City, his presence is needed in order to
         provide essential information to members of the Commission for
         pending legislation. Without the Mayor present, the City Commission
         was hampered in its ability to fulfill its duty. Mayor Orlando Lopez's
         neglect of his duty by his continued absences has burdened the City of
         Sweetwater and caused problems in the effective and efficient
         governance of the City.
                                             2
injunctive relief to suspend the recall process. He mainly argued that the recall

petition was invalid because he did not neglect his duties pursuant to the City

Charter. The court found that the language of the recall petition was legally

insufficient because the mayor’s absence from commission meetings did not

constitute neglect of duty under the City Charter.

      The duties of the Mayor of the City of Sweetwater are delineated in Article

IV of the City Charter. Section 4.00 specifies that “[t]he executive authority of the

City of Sweetwater will be vested in the mayor who will be responsible for the

administration of the city government.” Section 4.01 specifies the powers and

duties of the mayor which include, in relevant part, the following:

      (a)    Position of mayor: The mayor shall be the chief executive
             officer of the City of Sweetwater and shall be responsible for
             the management and administration of the city government and
             the legislative power of the mayor shall be limited to his right
             to participate in meetings of the city commission, the power of
             veto, approval in writing of ordinances and resolutions as
             provided hereinafter in this section but the mayor shall not have
             a right to vote.

                                        ***

      (d)    Specific authority of mayor: The mayor shall:
             (1) Appoint and when he deems it necessary for the good of
                   the city, suspend or remove all city employees and
                   appointive administrative officers provided for by or
                   under this Charter or personnel rules adopted pursuant to
                   this Charter subject to appeal to the city commission as
                   more specifically set forth in section 3.06(e) of this
                   Charter. The mayor may authorize any administrative
                   officer who is subject to his direction and supervision to
                   exercise these powers with respect to subordinates in that
                   officer's department, office or agency.
                                          3
           (2)  Direct and supervise the administration of all
                departments, offices and agencies of the city, except as
                otherwise provided by this Charter or by law.
           (3) Respond to inquiries of the commission. The mayor
                may attend all commission meetings and may be
                allowed to participate in the discussion but shall not
                have the right to vote.
           (4) Ensure that all laws, provisions of this Charter and acts of
                the commission, subject to enforcement by the mayor or
                officers subject to the Mayor's direction and supervision,
                are faithfully executed.
           (5) Prepare and submit to the commission the annual budget
                and budget message which shall include any proposed
                capital improvement program in a form as required by
                Charter and state law.
           (6) Submit to the commission and make available to the
                public a complete report on the finances and
                administrative activities of the city as of the end of each
                fiscal year.
           (7) Make such other reports as the commission may require
                concerning the operations of city departments, offices
                and agencies that are subject to the direction and
                supervision of the mayor.
           (8) Keep the commission fully advised as to the financial
                condition and future needs of the city and make such
                recommendations to them [it] concerning the affairs of
                the city as the mayor deems advisable or commission
                requests.
           (9) In conjunction with the city clerk sign contracts on behalf
                of the city pursuant to the requirements of ordinances or
                resolutions providing there have been proper
                appropriation of funds for same.
           (10) Be available at all reasonable times to respond to
                questions from members of the city commission.
           (11) Perform such other duties as are specified in this Charter
                or may be required by the city commission.

(Emphasis added)

     The plain language of the City Charter makes clear that the mayor’s

attendance at commission meetings is
                                       4
not mandatory.    Section 4.01(d)(3) provides that “[t]he mayor may attend all

commission meetings and may be allowed to participate in the discussion but shall

not have the right to vote.” In addition, section 4.01(d)(3) requires the mayor to

“[r]espond to inquiries of the commission” and section 4.01(d)(10) requires the

mayor to “[b]e available at all reasonable times to respond to questions from

members of the city commission.”

      The City Charter thus gives the mayor the right to attend commission

meetings but does not require the mayor to do so.         In addition, there are no

allegations that the mayor has not responded to the commission’s inquiries or has

not been available to respond to questions at all reasonable times. Florida’s recall

statute “requires that a recall petition allege conduct by the public official which

would constitute one of the seven grounds for removal,”2 as provided for in section

100.361(2)(d). See Bent v. Ballantyne, 368 So. 2d 351, 353 (Fla. 1979). In the

case of neglect of duty for failure to attend commission meetings, as is alleged in

the recall petition, the inquiry begins with the establishment of a legal duty of the

mayor and a violation of that legal duty by the mayor. Since the City Charter does

not require that the mayor attend commission meetings, then it stands to reason

that there cannot be a violation of such duty because the duty does not exist.

Finally, because one of the grounds for recall advanced in the petition, neglect of

2 The seven grounds for removal include malfeasance, misfeasance, neglect of
duty, drunkenness, incompetence, permanent inability to perform official duties,
and conviction of a felony involving moral turpitude.

                                         5
duty for failure to attend city commission meetings, is legally insufficient, the

entire petition is legally insufficient. See Garvin v. Jerome, 767 So. 2d 1190 (Fla.

2000).

      We therefore affirm the trial court’s final judgment concluding that the facts

alleged in the recall petition do not support a claim for neglect of duty.

      Affirmed.




                                           6
