City Attorney says commission candidates can use political party affiliations in their campaigns

City Attorney Tammi Bach issued an opinion Monday that says candidates for three Fernandina Beach City Commission seats, which have been non-partisan races, can now use their political party affiliations in advertisements and during their campaigns.

Section 9 of the Fernandina Beach City Charter states "All City elections are non-partisan." There is no penalty stated for violating the section.

Bach's opinion states "it is NOT a violation of Section 9 of the City Charter to include party affiliation in political advertisements for City Commission seats or to campaign for election or re-election to a City Commission seat using political party affiliation."

Bach's opinion means city commission candidates can now use Republican, Democrat, Independent or any other political party identifier in their campaign literature. It also means candidates can state their political party affiliations while campaigning.

The city attorney based the opinion on the case of Pensacola resident Kells Hetherington, who ran for Escambia County School Board in 2022. In his 2018 bid for a school board seat, Hetherington told voters he was a “lifelong Republican” in the nonpartisan race. The Florida Elections Commission initially fined Hetherington $500 for his party of choice disclosure. After Hetherington objected based on First Amendment rights, the charge was reduced to $200. But Hetherington decided to run for the school board again in 2022 which led to his lawsuit. It was filed to ensure he could state his party affiliation in 2022 campaign communications. U.S. District Judge M. Casey Rodgers in her final Opinion filed November 8, 2022, struck down the Florida statute outlining non-partisan campaign “speech” limits.

The issue of political party involvement in city commission races came to the forefront in the 2022 Fernandina Beach city elections when the local Republican Party distributed flyers supporting Darron Ayscue and James Antun. The two candidates also were backed by Republican leaning political action committee funding for campaign mailings and robo-telephone calls during a runoff election in December. Both Ayscue and Antun won election as commissioners.

Bach said she was contected by email from Commissioner Ayscue requesting the opinion.

Bach wrote that "Neither the City of Fernandina Beach Charter nor the Code of Ordinances define “nonpartisan”. The Florida Election Code, Chapters 97-106, Florida Statutes provides that it governs the conduct of a municipality’s election in the absence of an applicable special act, charter or ordinance provision.

"The Florida Election Code defines “nonpartisan office” as an office for which a candidate is prohibited from campaigning or qualifying for election or retention in office based on party affiliation. See Sec. 97.021, Fla. Stats.

Section 106.143(3), Fla. Stats. provides that a political advertisement of a candidate running for nonpartisan office may not state the candidate’s political party affiliation. Furthermore, the statute prohibits a candidate for nonpartisan office from campaigning based on party affiliation. However, this section does not prohibit a political advertisement from stating the candidate’s partisan-related experience. This statute was declared to be unconstitutional by the Hetherington Court. See id.

"Therefore, it is my opinion that the Hetherington Court decision is on point, and candidates for City of Fernandina Beach Commission seats may include party affiliation in their political advertisements and openly state their political party affiliation while campaigning for election or reelection to a City Commission seat."

Sheila Cocchi, chair of the Nassau County Democratic Executive Committee, said she believes Bach's opinion is in error and another blow to city elections that are meant to be void of political party involvement.

"The local Democratic Party respects that the city elections are non-partisan and will continue down that road. We will not deviate from that position no matter what the city attorney states," she said. "We will endorse candidates based on how they plan to serve our community, not their party affiliation and make this widely known in the community. We also ask our county Republican Executive Committee to follow the city charter rules and hold them accountable if they don't"

Former City Commissioner Tim Poynter, who declared as a city commission candidate last week, was outraged by Bach issuing the opinion.

"What she's saying is that there is now no such thing as a non-partisan city election. That's total B.S. It turns the whole election into a joke," he said.

Poynter took particular issue with Bach's declaration that non-partisan is not defined in the city documents.

"So because it's not defined, she's ruling that non-partisan doesn't exist," Poynter said. "I was very upset of how the Republicans got involved in the 2022 city elections. Political party involvement has no place in city elections."

Poynter said he will not use his political party affiliations in his campaign materials nor mention it when speaking at campaign events. "If someone asks me, I'll tell them," he said.

Vice Mayor David Sturges filed as a candidate for re-election last week. He did not respond to requests for comment. Mayor Bradley Bean's seat is also up for election. Bean has not said whether he will seek another term. He did not respond for requests to comment.

Bach also couched the opinion with a note of caution for candidates writing: "A caution to candidates for a seat on the City of Fernandina Beach City Commission that decide to use their political party affiliation in their campaigns for nonpartisan elective office…please understand that this is newer case law that may be addressed as amendments to statutes by the Florida Legislature and/or a court of competent jurisdiction during your campaign which could change the effect of the persuasive findings of the Hetherington Court."

Bach told the Observer, "this case is so new by the trial court that other higher courts may rule on it differently if it is challenged."