Key West The Newspaper

by Amber Nolan

The court will decide whether Mark Rossi, who is fashioned as a “one percenter” will be on the ballot for Key West mayor despite not paying the “one percent” municipal election assessment fee by the deadline. The case raises questions as to whether an error on the Supervisor of Elections Office website caused him to miss the deadline, but it also introduces the odd notion that Rossi may have planned on filing for hardship to avoid the fee.

A lawsuit has been filed by Supervisor of Elections for Monroe County, Joyce Griffin, stating that at some point on June 18, the website of the Supervisor of Elections was mistakenly updated to state that Mark Rossi had qualified. It is unclear if Rossi saw the website, or if there was another reason for failing to pay the fee (Rossi is not the one who filed the suit).

In her affidavit, Hazel Lopez, the Deputy Supervisor in the Supervisor of Elections Office, stated that on Monday June 18, at 12 p.m. she time-stamped all the candidates who had pre-filed paperwork, and began changing the status of candidates from filed to qualified – including Mr. Rossi.

However, later that afternoon, when Barry Gibson, Rossi’s campaign manager, entered the office for a different matter, Lopez informed him that she didn’t have Mr. Rossi’s check for the one percent assessment fee, and handed him two papers. One of the papers showed the amount of the fee, and the second was the Municipal Candidate Affidavit of Financial Hardship form.

She stated that she explained to Mr. Gibson that if Mr. Rossi was not going to pay the one percent assessment fee that he could file the Affidavit of Financial Hardship form and the fee would be waived.

In her affidavit Lopez also claims Gibson replied that he wasn’t sure if Mr. Rossi had filled out the Municipal Candidate Affidavit of Financial Hardship form, and that he was going to check the papers Mr. Rossi had filed and come back.

But why would Mark Rossi, a former commissioner who owns the popular Rick’s Bar complex and Red Garter Saloon, entertain the idea of a filing a financial hardship application to avoid a $225 fee? After all, Rossi was known for his decision to forego his entire annual commissioner’s salary in the past.

As of the qualifying deadline of Friday, June 22 at noon, Rossi still had not paid the fee.

In the suit, it states that upon realizing this, Lopez and Griffin immediately called Mr. Gibson (Rossi was not in the country at the time) who paid the fee by the end of the day – but the deadline had passed. Normally, a candidate’s failure to pay a filing fee by the end of the qualifying period prevents them from being able to run.

However, the lawsuit points to the September 15, 2016 Supreme Court of Florida decision in Wright v. City of Miami Gardens, as precedent. In that case, when the candidate’s check was returned from the bank, he was unable to pay the filing fee before deadline – thus disqualifying him.

At the time of the Wright case, Florida Statute 99.061 (7) (a) stated,

“If a candidate’s check is returned by the bank for any reason, the filing officer shall immediately notify the candidate and the candidate shall have until the end of qualifying to pay the fee with a cashier’s check purchased from funds of the campaign account. Failure to pay the fee as provided in this subparagraph shall disqualify the candidate.”

In the case of Wright v City of Miami Gardens, Wright had done nothing wrong and the bad check was entirely due to the bank’s error. The Florida Supreme Court ruled that the statute “unconstitutionally erects a barrier that is an unnecessary restraint on one’s right to seek elective office, and that the previous statute shall be the law.”

That previous version of the statute 99.061 (7) (a) that the Supreme Court deemed the law dates back to 2010, when it stated that

“if a candidate’s check is returned by the bank for any reason, the filing officer shall immediately notify the candidate and the candidate shall, the end of qualifying notwithstanding, have 48 hours from the time such notification is received, excluding Saturdays, Sundays, and legal holidays, to pay the fee with a cashier’s check purchased from funds of the campaign account. Failure to pay the fee as provided in this subparagraph shall disqualify the candidate.”

Interestingly, to date, Florida Statute 99.061 (7) (a) has not been amended to reflect the Florida Supreme Court’s decision and still maintains the old statute wording from 2011. When questioned about this, a representative from the Division of Law Revision and Information stated that state senators and representatives need to introduce bills to amend the statute to comply with Supreme Court decisions.

The 2010 version of the statute [and the Florida Supreme Court in Wright] specifically refer to a bad check, but in Rossi’s case, it wasn’t that there was a bad check; there was no check. Now, the courts will have to decide if the 48-hour window to pay the fee after the deadline will apply, and to what extent the Supervisor of Elections website error is enough to qualify under the Florida Supreme Court’s ruling.

During an emergency hearing Monday, June 25, five of the seven candidates for mayor were present and all emphasized that the case should be expedited as soon as possible (except Teri Johnston, who had no comment).

The need for such urgency is because the military absentee ballots must be sent out no later than July 14 and have a two-week turnaround time – so the Supervisor of Elections needs to know immediately if Rossi’s name should be on the ballot.

On top of that, County Attorney, Bob Shillinger, stated,“We want to avoid what happened in the Wright case, when it went all the way to the Supreme Court.” He pointed out that in that case the August primary was deemed invalid, and Wright’s name was added to the November ballot.

Meanwhile, Mark Rossi himself is traveling internationally, and will not be back until mid-July. It is unclear if he will testify by phone – which would require him to be sworn in at a U.S. consulate. During the hearing Monday, most candidates, and Rossi’s attorneys, felt that Rossi’s testimony was unnecessary.

One candidate, Sloan Bashinsky disagreed. “Mr. Rossi is a candidate and I’m pretty sure when he pre-filed he had to do that himself. I’m pretty sure he was informed of the State fee as I was.” He went on to say, “I would like Mr. Rossi himself to testify to what he was told by the Supervisor of Elections. He is the reason why we are all here.”

Judge Timothy Konig set an evidentiary hearing for Wednesday, June 27^th at 1 p.m.

Click here to find out what happened at the June 27th hearing.

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Click here to see Judge Timothy Koenig’s notes, June 25, 2018 hearing.

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