Citing a November Case, Bach Says Candidates Can Tout Party Affiliation

By Mike Lednovich

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, touting his experience in finance to help the county’s public schools. In a previous bid for the school board, the Florida Elections Commission fined Hetherington $200 for telling voters that he was a “lifelong Republican” in the nonpartisan race.

He filed a lawsuit in Federal court claiming that Florida Statute 106.143(3) is unconstitutional because it limited his free speech. A judge agreed in November 2022 and ordered the state to stop enforcing it against any candidate in non-partisan races.

Bach said she was contacted by Commissioner Darron Ayscue for the opinion on non-partisan elections.
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.”

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 robocalls during a runoff election in December. Both Ayscue and Antun won the election as commissioners.

Bach was unavailable for comment Monday evening and did not respond to a voice message left on her cellphone.

It is unclear who within the city asked that the opinion be issued.

Bach wrote, “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 is the statute was declared to be unconstitutional by the Hetherington Court.

“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 devoid 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 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’s opinion.

“What she’s saying is that there is now no such thing as a non-partisan city election. That is 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 by 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 to requests to comment.

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Douglas M
Noble Member
Douglas M(@douglasm)
1 month ago

I agree with Tammi on this one…..I don’t understand the value of restricting speech here. We can all look up someone’s party affiliation….so why shouldn’t they be allowed to flout it if they want? I’ll never confuse Sheila as a Republican. If she runs, I know her party (for example).

The decision mentions “burning a house to roast a pig” and more clearly states:

Again, prohibiting all statements of current party affiliation hits wide of the compelling interest mark. There is no evidence in the record or any reason offered for presuming that the voters will be confused by being offered information about a candidate’s current party affiliation or that voters are better served if this information is restricted from them until after the election. 

Voters aren’t stupid….they already know where everyone sits, IMO.

Alan Hopkins
Noble Member
Alan Hopkins(@dawaves)
1 month ago

Why would anyone want to suppress information that might help determine what values and positions our elected leaders have?

Being a Republican or Democrat should not define you but in my opinion it does indicate a certain belief in the role of government in our lives.

If you run for office I ask you to do this simple thing.

Say what you believe, believe what you say, and do what you said you will do..

As a Libertarian I support anybody’s right to say what they want even if I vehemently disagree with it. Just don’t try to hide behind a party label to justify it.

Mark Tomes
Noble Member
Mark Tomes(@mtomes)
1 month ago

The issue is not whether knowing a candidate’s party affiliation is helpful in determining a candidate’s position (I certainly want to know if I’m voting for a development-at-any-cost, backroom-dealing Republican or a conservation-minded Democrat), it is whether it is legal to state your affiliation in what is supposed to be a non-partisan race. Clearly, Bach took a very narrow ruling from the previous case (stating one’s experience in a political party is ok) and expanded it much too broadly. “Non-partisan” is clearly defined in Florida statutes, and imo, the city commission candidates who stated their party affiliation in the most recent election did it illegally.

julie ferreira
Active Member
julie ferreira(@julie-ferreira)
1 month ago

The City Charter states that Fernandina elections are non-partisan. The Florida election statutes and laws define non-partisan election. In many cases, our ordinances do not define things that are clearly defined in state statutes.
Don’t like the law, then go through the process. Hold a referendum and let the registered voters of Fernandina decide if they want the Fernandina Charter Language to be changed. Let the majority decide. This is democracy.

Last edited 1 month ago by julie ferreira
MyFernandina
Active Member
MyFernandina(@myfernandina)
1 month ago

The ruling was that stating past party-related experience is not a violation of Florida statutes.
Running as a Democrat, Republican, or other is not permitted.
Unfortunately our current national divide has become local–while indirect party influence has always been present in city elections (most often by Democrat-leaning elements) that influence is now becoming more visible.
Further the most aggrieved here are in the minority and have now lost the advantage of obscurity–let the light shine on all actors equally.

PattyM
Active Member
PattyM(@pattym)
1 month ago
Reply to  MyFernandina

“while indirect party influence has always been present in city elections (most often by Democrat-leaning elements) “

would you care to elaborate on what you’re referring to or give examples?

PattyM
Active Member
PattyM(@pattym)
1 month ago

My observation is that many who often complain or lament about Fernandina not being the quaint town it once was or that it’s lost that “homey” feeling are the first to want to pull in outside political party influence (money from state party or affiliated PACs) to support the local candidate’s campaign. My observations are once you bring in the “big guns” that’s when it gets dirty and underhanded in the campaign rhetoric and campaign materials. I think many of us felt that was the case in the last city election. Tell me why you’re best for the job, specify what you want to accomplish, and answer questions from the voters honestly and stop with all the lying, mudslinging, innuendo, personal attacks on your opponents, etc. We get enough of that from our state and national politicians.

MyFernandina
Active Member
MyFernandina(@myfernandina)
1 month ago
Reply to  PattyM

Yes, outside money should be kept out of FB city elections–collecting $30K from outside PACs is nothing but harmful–and hopefully, a one-time event. Run on your own policies and record. Transparency in campaign funding is essential. Likewise the local and state party organizations must act transparently–and stay out of involvement directly or indirectly–so city elections are truly non-partisan.
Will this happen? Not likely.

Last edited 1 month ago by MyFernandina
Betsie Huben
Noble Member
Betsie Huben(@betsie-huben)
1 month ago

The charter is our city’s guiding document and it is clear in this matter. And our charter has stood the test of time. I think this reason this has come up at all is elections are around right the corner. There was some question in the last election about who was being funded by who and was that, in fact, partisan influence in our non-partisan election process. Who asked Ms. Bach for this opinion and why now? My guess is it is someone who does not want to have to explain their campaign donations later.

srcocchi
srcocchi(@srcocchi)
1 month ago
Reply to  Betsie Huben

Commissioner Ayscue. The request can be viewed in Public Records Request #2024-131. I’m fairly certain he intends to run for Mayor.