Cape Coral City Attorney Dolores Menendez issued a memo Wednesday explaining the controversial process used to appoint Jim Burch as mayor, but some council members are not buying it.

During the Nov. 10 council meeting, council members agreed to use plurality in deciding whom to appoint as mayor. Under plurality, whoever received the most votes would be named as mayor, even if they did not achieve a majority of the votes.

At one point during the voting process Monday, Councilmember Bill Deile attained plurality with three votes, while Burch and Councilmember Dolores Bertolini each received two.

However, Menendez points out in her memo that the city charter calls for a minimum of four votes for an action of council to be valid. The council never specified how to appoint someone as mayor after it attained plurality.

Council members discussed the possibility of calling a vote to appoint the person who achieved plurality, but never passed a motion in favor of it, Menendez said.

“Despite this discussion, however, the Council took no further action on this issue,” her memo reads in part.

Under that scenario, a vote to appoint Deile would have been called, but that did not take place.

Instead Mayor Pro Tem Derrick Donnell, who ran the meeting, called for a runoff between Burch and Bertolini to see who would face Deile in a final vote. Burch won by a 4-3 count, then won the final vote against Deile by the same margin.

Donnell has said anyone who had a problem with the voting process had ample time to speak up, but no one did.

Menendez reiterated that point in her memo.

“Although given an opportunity to question the process, no member of Council raised any objection, point of order, or question, or expressed any dissent from this appointment process as a means of narrowing the field of candidates,” she said.

Councilmember Pete Brandt wishes he had said something.

“I wonder why I didn’t have the presence of mind to speak up and say, ‘Hey, this isn’t what we agreed to.’ In retrospect I wish I had. It was sprung on us so quickly we were all so stunned,” Brandt said.

Neither Brandt nor Deile plan to contest Burch’s appointment, but Brandt said he will comment on the voting process during Monday’s council meeting.

Deile said he plans to issue his own memo today criticizing Menendez’ interpretation.

“I’m not going to set aside Burch’s appointment, but I’m not going to accept revisionist history,” Deile said.

“We agreed to a process, we violated the process. Burch got the appointment, we’ve got to move on with the city’s business, but the record should be correct,” he added.