Term limits could face another test in Palm Beach Gardens after the city attorney advised Councilmember Carl Woods that he can run again because he had not been elected to serve two full three-year terms.
In a city where longtime incumbents were forced out of office only after voters resorted to term limits, Woods’ opening grew out of the first no-holds-barred legal fight over the rules.
Five years ago, that dispute removed David Levy from office but only after he had served nearly four months of what became Woods’ first term. It took an appellate court ruling in June 2016 to award the race to Woods.
That meant Woods, a retired police officer who runs an investigations and process server business, has served nearly two full terms, but not quite, falling about four months shy.
City Attorney Max Lohman, in a July 29 memo, spelled out why Woods isn’t term-limited based on the first of two critical sentences added to the city charter after voters enacted term limits in 2014 and refined them in 2018.
“No individual shall be elected to the office of councilmember for more than two consecutive full terms,” the sentence says.
But Levy was declared winner in March 2016 and served nearly four months in office while the court drama played out.
“When Councilmember Woods was appointed to office by Judge Colin, there were only 32 months remaining in the term,” Lohman wrote. “Therefore, it would appear that Councilmember Woods was not elected to a full term, as Mr. Levy served the first four months of the term.”
If that’s the case, Lohman wrote, there’s no need to apply the second sentence: “Service of one-half or less than one-half of a full three-year term shall not count toward the subject term limit.”
Woods intends to run
As a result, Woods said he is running. While candidates usually start to gather support over the summer, no other candidate has announced for his Group 4 seat. The 15-day qualifying period closes at the end of November.
“I won the runoff (that was never held, against Levy) by default,” Woods said. “So in my mind — I’m not trying to find a loophole — I was not elected, because David was, and when I did get there, it wasn’t a full term.
“It’s a legal, moral, ethical, path for me to run again,” Woods said.
He said he hadn’t contemplated running until contacted by James D’Loughy, the lawyer who argued successfully in 2016 that Levy had not avoided term limits by resigning his seat in November 2012 to run for county commission.
In the phone conversation, Woods said D’Loughy told him you’re not term-limited out and that he would not sue to block Woods from running.
D’Loughy, who did not return phone calls, followed the conversation with Woods with a July 15 email to the city attorney, questioning whether Woods would be eligible and prompting Lohman’s review.
Term-limit backers support run
Two other longtime backers of term limits, Sid Dinerstein and Michael Peragine, said they too see nothing wrong with Woods running.
“Unlike Levy, Carl didn’t serve a full first term,” said Dinerstein, who filed the 2016 suit that blocked Levy. “David didn’t serve because he dropped out. Courts are very clear on this. These are not gray areas.”
“We’re not arguing it,” added Peragine, who collected signatures in 2014 to put term limits on the ballot. “The way we read it, he has the right to run.”
Levy points to partisanship
Their position appears hypocritical to Levy, who pointed to partisanship behind the scenes of the city’s nonpartisan elections.
“My understanding is that a term is defined as more than half,” Levy said. “They’re not applying principal. They’re saying they like Carl. And the big difference between Carl and I is he’s a Republican.”
Gerald Richman, a Democrat and longtime lawyer who lives in Palm Beach Gardens, said he was asked to look at the city attorney’s memo by people who don’t agree with it, including Republicans.
“As a practical matter he was elected. … The converse of that second sentence is he served more than half of one term. So it does count. Whether appointed or elected he served more than one half of a term.
“That second sentence can’t be meaningless.”
The 2016 court ruling
Voters may go to the polls without knowing who is right.
In 2016, Dinerstein sued before the election but a Palm Beach County Circuit Court judge rejected the suit, saying he could refile after the election, which he did. While that suit played out, Levy took office.
Levy argued, with the city attorney’s backing, that his two terms began with his March 2013 election, four months after resigning his seat to mount an unsuccessful bid for county commission. Even though Levy first took office in 2004, that reading of events would have made 2016 his second full term.
The Fourth District Court of Appeal rejected the argument, saying “Each of Levy’s four prior terms constitutes ‘a term of office which commenced prior to the effective date of any term limitation,’” including the term he quit to run for county commission.
The only other Republican on the council, Marcie Tinsely, also has been buffeted by term limits.
She served two full terms starting in 2011 but did not seek reelection in 2017, her Group 5 seat taken by Rachelle Litt, who is now mayor.
After Maria Marino left the council in 2020 to win a seat on the county commission, Tinsley ran in March to fill the lone year remaining on Marino’s term.
That means Tinsley, who already has filed paperwork to run in March 2022, is eligible to serve for two more three-year terms.
City has more registered Republicans
Litt and Councilmember Mark Marciano are term-limited out in 2023.
While the city has been viewed as supportive of Democrats, it actually has more Republicans among its 45,313 registered voters as of the end of July. The breakdown was 38.6 percent Republican and 31.8 percent Democratic, with 27 percent no party affiliation and 2.6 percent other parties.
Peragine said he backed term limits after losing in March 2014 by a 51 to 49 percent margin to longtime incumbent Eric Jablin. He and D’Loughy led a petition drive that put the matter before voters in November 2014, where it won 79 percent of the vote.
At the time, Jablin and Councilmember Joe Russo both had been in office more than 20 years.
A council-backed effort in 2018 to allow councilmembers to stay for three, three-year terms encountered legal challenges and didn’t pass.
© 2021 Joel Engelhardt. All rights reserved.