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.

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.