By Caroline Klancke, Florida Ethics Institute.
During its closed session meeting on Friday, December 2, 2022, the Florida Commission on Ethics, the constitutionally created independent agency tasked with interpreting and enforcing the State’s ethics laws, took action on 28 matters. Twelve of those matters were considered for probable cause.
If the Commission finds that there is probable cause to believe there has been a violation of the ethics laws, the complaint becomes public and the matter is referred to the Division of Administrative Hearings (DOAH) for a public hearing—which is similar to a trail—to be held before an Administrative Law Judge (ALJ), unless the matter is settled pursuant to stipulated agreement reached between the parties. If the Commission finds that there is no probable cause to believe that there has been a violation of the ethics laws, the matter will be dismissed.
In a press release issued on December 7, 2022, the Commission released the following findings.
Probable cause was found to exist in a complaint involving the City of Naples Mayor, Teresa Heitmann, alleging that she had misused her public position by attempting to steer City employees and resources to investigate matters unrelated to City business and for the benefit herself and another individual. Probable cause was also found as to an allegation that Ms. Heitmann failed to disclose a gift of legal services valued in excess of $100 on a Form 9, Quarterly Gift Disclosure. However, the Commission found no probable cause to believe Ms. Heitmann violated the constitutional amendment prohibiting abuse of office to obtain a disproportionate benefit.
Probable cause was found to exist in a complaint filed against a former Florida Department of Education (FDOE) Program Specialist IV, Justin David Feller, alleging that he violated the constitutional amendment prohibiting abuse of a public position to obtain a disproportionate benefit. The Commission also found probable cause to believe he misused his position by keeping FDOE equipment at his home during the pandemic that he used in his personal capacity and by obtaining gift cards intended for the purchase of educational training and using them to make personal purchases, as well as requesting payment and reimbursement for training he never provided.
The Commission also considered related complaints filed against FDOE Program Specialists IV, Daniel Ring and Kenneth Edwards, and found no probable cause to believe that they had misused their public positions or obtained a disproportionate benefit as the evidence indicated that they had used FDOE equipment and gift cards for official business and returned public resources/equipment to the FDOE offices as soon as they were authorized to do so.
The Commission rejected the recommendation of its Advocate and found probable cause in a complaint filed against Broward County Sheriff, GREG TONY, alleging that he misused his public position when he provided false information or did not disclose information during the appointment process for his service as Broward County Sheriff; when completing notarized documents submitted to FDLE while serving as Broward County Sheriff; and when applying to renew his driver’s license while serving as a law enforcement officer.
The Commission considered three self-initiated investigations resulting from the random audits of executive branch lobbying compensation reports filed in 2020 and found probable cause to believe that the Executive Branch Lobbying Firms, Capitol Strategy Group and Buchanan Ingersoll & Rooney, PC, filed inaccurate or incomplete lobbying compensation reports. The Commission found no probable cause to believe the Executive Branch Lobbying Firm, People Who Think, failed to register as a lobbyist in 2020 or that the firm violated the law by filing one or more inaccurate 2020 quarterly lobbying compensation reports.
The Commission found no probable cause in a complaint filed against City Attorney for Lake City, Fred Koberlein, alleging that he represented clients before the units of local government to which he provides legal services.
The Commission found no probable cause in a complaint filed against Lake City Community Redevelopment Advisory Council member, Lester McKellum, alleging that he had a prohibited conflict of interest arising from a business relationship after he requested that the City Commission make two separate payments to a private corporation in which he served a compensated officer. No probable cause also was found on an allegation that he had a conflicting employment or contractual relationship that created a continuing or frequently recurring conflict between his private interests and the performance of his public duties. The Commission also found no probable cause on a voting conflict allegation related to the vote for payments to be made to the private corporation for which served as a compensated officer.
The Commission considered a complaint filed against Broward County Public School Director of Athletics and Student Activities, Shawn Cerra, and found no probable cause as to the allegation that he solicited something of value based on the understanding that it would influence his official actions when he accepted lodging and attended a party hosted by a longtime personal friend, who was the cap and gown vendor for the School District. The Commission also found no probable cause to believe he accepted a thing of value from a District vendor when he knew or should have known the item was being given to influence him in his official public capacity. No probable cause also was found on an allegation that he misused his position to benefit the vendor. Allegations that Mr. Cerra accepted a prohibited gift from a vendor or failed to disclose reportable gifts in excess of $100 on a Form 9, Quarterly Gift Disclosure, when he spent time at the vendor’s home and attended the party, were also dismissed with a finding of no probable cause.
In a related matter, the Commission found no probable cause in a complaint filed against Broward County School Board member, Donna Korn, alleging that she solicited something of value based on the understanding that it would influence her official action when she accepted lodging from a cap and gown vendor. The Commission also found no probable cause to believe she accepted a thing of value when she knew or should have known it was given to influence her. Allegations Ms. Korn accepted a prohibited gift from a vendor or failed to disclose reportable gifts in excess of $100 on a Form 9, Quarterly Gift Disclosure, were also dismissed with a finding of no probable cause.
The Commission also reviewed and dismissed 14 complaints for lack of legal sufficiency. These reviews are limited to questions of jurisdiction and determinations as to whether the contents of the complaint are adequate to allege a violation of the Code of Ethics or other laws within the Commission’s jurisdiction.
During its public session meeting, the Commission considered and adopted an advisory opinion requested by a member of the Monroe County Board of County Commissioners wherein she was advised that a prohibited conflict of interest would not be created if a now terminated contract, executed prior to the member’s appointment to public office, and formed between her Board and her private employer, was reinstated through a litigation settlement agreement. Guidance was also provided regarding whether the member would have a prohibited conflict of interest if amendments were made to the contract as well as potential voting conflicts considerations.
The Commission also considered and dismissed a Petition for Costs & Attorney Fees (Petition) filed by a member of the Florida Keys Aqueduct Authority Board of Directors, Cara Higgins, against the complainants in previously dismissed ethics complaints filed against her. The Petition was dismissed because it did not substantively allege that the individuals who filed the complaints against Ms. Higgins knew their complaints contained false allegations when filed or that they exhibited reckless disregard for whether the complaint contained false allegations material to a violation of the ethics laws.
The Commission voted to grant the Advocate’s Motion to Dismiss a statutorily required, self-initiated investigation concerning a willful failure to file a Form 1, Statement of Financial Interests, for the year 2017 by Senior Vice President of Human Resources and Chief Experience Officer at Jackson Health System, Michelle Kligman, reasoning that she did not have the required purchasing authority for her to be required to file financial disclosure for 2017, a condition necessary to maintain jurisdiction in a willfulness investigation.