What's a supermajority? With big votes coming, Brevard board needs to figure it out

Brevard County officials have directed the county attorney to look into caselaw to determine how many votes they will need for a supermajority, now that they are down one commissioner after Bryan Lober's recent resignation.

County Attorney Abigail Jorandby originally asked for a motion allowing her to send a message to the attorney general’s office seeking input, but commissioners instead told her to review other cases and seek out more information, because Jorandby said there is a good chance the attorney general may not weigh in.

“They basically say they will not answer questions for local codes or charters,” Jorandby said. “They are supposed to apply state law to the local charter and the codes, so typically they will not answer that.

The Commission landed in this predicament after Lober resigned on April 1 because his grandmother died.

Moving forward, the county will have to make do with the four members currently on the board until Gov. Ron DeSantis fills the vacancy with an appointment — if he even does.

More: Brevard County Commissioner Bryan Lober resigns after a loss of a family member

Thus far, the governor has been silent on the issue, possibly choosing to allow the position to remain vacant until a new commissioner is elected in November.

The central question facing the board now is whether the commission now constitutes four members. or if it remains five members, with one non-voting member. Board members are acutely aware of how consequential that answer is, especially for proposals that would require broad agreement among them.

If, because of Lober’s resignation, the board is now four members, then a supermajority only requires three votes. However, if the commission remains a five-member board, then all remaining commissioners must vote in favor of a proposal.

“We are in a unique position that going forward with only four commissioners in a charter county like we are, we incur some issues that other counties don’t have,” Commissioner Curt Smith said during an April meeting when he asked to write a letter to DeSantis regarding the vacancy. “We have a burden here until he appoints someone.”

When operating with one less commissioner, each of the remaining members have more influence to block legislation.

This newfound power could be very seductive for some commissioners in the coming months when the commission will be taking votes on important matters that may now require unanimous support from the four commissioners to pass.

More: Brevard County Commissioner Bryan Lober's resignation has blown the race wide open

This is especially critical when it comes to to charter amendments which would require all four commissioners approval for any of them to go to referendum for public consideration. On the other hand, one "no" vote could be enough to send an otherwise popular measure to its doom.

But figuring out what constitutes a supermajority is also important for looming budget discussions, especially if commissioners want to override the tax “cap" provision in the county’s charter to raise additional funds for a “emergency or critical need,” like they did in 2019 for the Brevard County Sheriff's Office.

At the time Tobia voted against Sheriff Wayne Ivey's request to increase his funding and "break the cap" because of pressing critical needs, but it passed because the other four commissioners supported the budget hike.

With much at stake in the month's ahead, the supermajority question is critical for the Commissioners to get resolved, which is why they were hoping for the opinion of the attorney general. Absent that, it is up to Jorandby to advise the commissioners how to proceed.

Commissioner Rita Pritchett suggested contracting outside counsel for an additional opinion, but that comes with its own complications since Jorandby is the person who represents the legal interests of the board.

More: Brevard County borrows playbook from Melbourne and effectively bans panhandling

Jorandby told the commissioners at the May 5 meeting that they will have legal immunity from the consequences of their decisions if they follow the advice coming from the county attorney’s office, but taking guidance from outside counsel could complicate matters.

The case law is limited, according to Jorandby who provided a couple of examples. One involved a budget decision by a municipality in which one member was absent. An individual disagreed with the board’s decision and filed suit, claiming it did not have an adequate number of votes.

Eventually the municipality had to go through the process again, causing a delay.

Jorandby also found another case that dated back to the 1950s for a statute that required three quarters of the board for approval, but the attorney thought it was three-quarters of those present.

“That I can understand because there is somebody filling that seat, there is an elected person fulfilling that role,” Zonka said.

“When it is vacant, there is no choice in the matter. I guess just keep digging. I wouldn’t recommend you ask for an attorney general opinion if you don’t believe they are going to give us a response.”

Ralph Chapoco is government and politics watchdog reporter. You can reach Chapoco at rchapoco@floridatoday.com and follow him on Twitter @rchapoco.

Support local journalism. Subscribe today.

This article originally appeared on Florida Today: Down a commissioner, Brevard needs to know what makes a supermajority