Florida Ethics Update: Commission on Ethics Determinations—June Meeting

Florida Ethics Update: Commission on Ethics Determinations—June Meeting

June 15, 2023

By Caroline Klancke, Esq., Florida Ethics Institute.


During its meeting on Friday, June 9, 2023, the Florida Commission on Ethics, the constitutionally created independent agency tasked with interpreting and enforcing the State’s ethics laws, took action on a myriad of matters involving the Code of Ethics for Public Officers and Employees (Code of Ethics) and the “Ethics in Government” amendment to the State constitution (Art. II, s. 8, Fla. Const.).


Public Session 

During its public session meeting, the Commission considered a settlement agreement entered into between the Commission’s Advocate and former employee of the Florida Department of Education (FDOE)—Justin David Feller, regarding an ethics complaint involving his misuse of official public position by keeping FDOE equipment at his home during the pandemic that he used for his personal benefit, by obtaining $1,000 in gift cards intended for the purchase of educational trainings and using them to make personal purchases, as well as requesting a $5,500 payment and reimbursement for training he never provided. The Commission voted to approve the settlement agreement finding that Mr. Feller violated the constitutional amendment prohibiting abuse of a public position to obtain a disproportionate benefit and misused his position and recommending a total civil penalty of $2,000 and public censure and reprimand for imposition by the Governor.


The Commission took final action on a complaint against the former Mayor of Temple Terrace, Melody Jurado. The Commission adopted a Final Order finding Ms. Jurado misused her position to permit or direct City staff to publish inaccurate or embellished educational credentials for her biography on the City’s website. During the deliberations on Friday the Commission’s Advocate asserted that Ms. Jurado had in essence purchased a degree from a “diploma mill” and thereafter misused her official position by directing City staff to publish her exaggerated credentials on the City’s official webpage. During the Commission’s consideration of the matter, Commissioner Grant expressed his concerns regarding the severity of the penalty in light of Ms. Jurado’s actions including her resignation from her public position and urged the Commission to set aside the fine and limit the punishment to public censure and reprimand. However, the Commission ultimately voted to adopt the Final Order recommending that a civil penalty of $10,000 and public censure and reprimand should be imposed upon her by the Governor.


The Commission took final action on a complaint against Orange County Firefighter, John Capps. The Commission adopted a Final Order finding Mr. Capps misused his position to be paid for time he did not actually work. A civil penalty of $5,000, restitution to Orange County Rescue Department in the amount of $195.21, and public censure and reprimand, was recommended to the Governor for imposition.


Attorney Fees Petition Dismissed 

The Commission also granted an “Order Dismissing Petition for Costs and Attorney Fees” thereby dismissing a petition for attorney’s fees and costs filed by Teresa Cervera—a former candidate for Circuit Judge in the 11th Circuit (and the Respondent in the original ethics complaint) against Juan-Carlos Planas (the Complainant in the original ethics complaint). The underlying ethics complaint alleged that when Cervera qualified as a candidate she failed to accurately disclose certain assets and liabilities on her 2021 Form 6, financial disclosure. After the filing of the ethics complaint, the matter was investigated by the Commission and on January 27, 2023, the Commission determined that there was no probable cause to believe that Ms. Cervera had violated the financial disclosure laws.


At its meeting on Friday, the Commission voted to dismiss Ms. Cervera’s petition for fees and costs, in part because the attorney’s fees provision of the Code of Ethics, s. 112.317(7), F.S., is limited to instances where “a person filed a complaint against a public officer or employee” and since Cervera was a non-incumbent candidate that did not otherwise hold public office when the ethics complaint was filed against her—Cervera could not seek fees and costs under the statute. Thus, indicating that non-incumbent candidates for public office cannot petition the Commission for fees and costs. 


The Commission also found that the petition should be dismissed because it failed to substantively satisfy the requirements of the statute which “sets a very high bar for recovery of fees” and which requires a showing that the ethics complaint was filed with a “malicious intent” to injure the official’s reputation and that the filer knew that the statements about the official (which were material to the complaint) were false or were made with a reckless disregard for the truth. After a robust discussion and a roll call vote—the Commission granted the order thereby dismissing the attorney’s fees petition.


Anti-Lobbying Amendment Challenge 

The Commission also engaged in a discussion regarding whether to continue expending public funds from their operating budget for its defense in the litigation of Garcia v. Stillman et al., case 1:22-cv-24156, which arose after several current public officers filed suit in the U.S. District Court for the Southern District of Florida challenging the validity of the newly effectively anti-lobbying provisions of Art. II, s. 8(f)(1)-(3), of the Florida Constitution—prohibiting public officers from lobbying on issues of “policy, appropriations, or procurement” while in office and further prohibiting them from lobbying for 6 years after leaving public office. Plaintiff’s argue that the new Anti-Lobbying Amendment, which became effective on December 31, 2022, is an unconstitutional infringement of their First Amendment rights.


In February 2023 Judge Beth Bloom issued a preliminary injunction against the enforcement of the part of the Anti-Lobbying Amendment which prohibits “public officers” (including all state lawmakers and elected officials, City Councilmembers, County Commissioners, School Board members, and others) from lobbying while they are in office. As stated in the Commission’s Executive Director’s Report, Judge Bloom has also granted substantial portions of the Commission’s “Motion to Dismiss” finding that none of the plaintiffs have standing to challenge the 6-year post-office-holding portion of the ban, thereby leaving only the in-office lobbying ban in dispute. At the Commission’s meeting on Friday, the members agreed to engage in a “shade meeting” in order to further discuss litigation expenses going forward.


Executive Session

During its closed session meeting (wherein confidential and exempt matters are addressed) the Commission took action on 47 matters. 9 of those matters were ethics complaints considered for probable cause. In a press release issued on June 14, 2023, the Commission issued the following findings.


The Commission considered a complaint filed against former University of Central Florida (UCF) employee, Martin P. Wanielista, finding no probable cause on three allegations that he violated ethics laws. The allegations were: that he abused his position to obtain a disproportionate benefit for himself or business; misused his position; and that he had an employment or contractual relationship that conflicted with his public duties when he helped with the research, development, and license of a filtration medium used to remove nutrients from stormwater while employed by UCF, and later used and profited from the patented technology at a company where he had an ownership interest.


In a complaint filed against Osceola County School Board member, Jon Arguello, the Commission rejected the recommendation of its Advocate and found no probable cause to believe Mr. Arguello misused his position when he solicited campaign funds for his sister’s campaign and used school board letterhead on a press release that included his personal opinion.


The Commission found no probable cause in a complaint filed against Okaloosa County School Board member, L. Diane Kelley, alleging that she abused her position to obtain a disproportionate benefit, misused her public position, or used information only available to her and gained by reason of her official position when she obtained and shared with members of the press investigative reports regarding a teacher showing portions of a rated R movie to students.


In a complaint filed against former Miami-Dade County School Board member, Christine “Christi” Fraga, the Commission found no probable cause regarding allegations that she abused her position to obtain a disproportionate benefit and misused her position regarding a request for volunteers for her campaign that was posted on the School District’s social media page.


The Commission considered a complaint filed against write-in candidate for Collier County Commission, William Oppenheimer, and found probable cause on allegations that he failed to file an accurate 2021 Form 6 financial disclosure.


The Commission rejected the finding of their advocate and found no probable cause to believe that Neptune Beach City Council Member, Lauren Key, abused her position to obtain a disproportionate benefit and misused her position when she escalated a dispute with a City parking attendant and pushed for discipline.


The Commission found no probable cause to believe City of Milton City Manager, Randy Jorgenson, misused his position when he was driven by a City employee in a City-owned vehicle to engage in a political discussion during work hours.


In a Commission-initiated investigation – required by statute – to determine if Jan Hopkins, as a member of the Taylor County Planning Board, willfully failed to file her 2019 Form 1, financial disclosure, resulted in a finding of no probable cause.


Similarly, after reviewing the results of a Commission-initiated investigation – required by statute –to determine if Paul Davis Cooper, as a member of the Judicial Nominating Commission, willfully failed to file his 2019 Form 1 disclosure, the Commission found no probable cause.


The Commission granted a request by the Complainant to withdraw three complaints he filed against Columbia County Attorney, Joel Foreman, as well as Columbia County Commissioners—Ronald Williams and Robby Hollingworth.


The Commission also dismissed a complaint filed against former Town of Redington Shores Commissioner, William J. Krajewski, due to his death.


The Commission also reviewed and dismissed 34 ethics complaints for lacking 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.


At its June 9, 2023, meeting the Commission dismissed complaints filed against the following public servants due to a lack of legal sufficiency: Dennis Ward, Monroe County State Attorney; Nashon Lamir Nicks, Candidate for Jacksonville City Council; N. Ovitt, Polk County Jail Detention Detective; Russell Piche, Polk County Sheriff’s Office Deputy; Brandon Newsom, Holmes County Commissioner and Vice Chair; Steven Neil, Polk County Sheriff’s Office Deputy; Marlisa Demond, Polk County Assistant Public Defender; Douglas F. Andrews, Madeira Beach Vice Mayor; Robin I. Gomez, Madeira Beach City Manager; Cynthia McIntyre, Cory Lake Isles Community Development District Supervisor; Jerry L. Demings, Orange County Mayor; Cecil Smith, Sanford Chief of Police; Michael Ilczsyn, Cape Coral City Manager; Curtis Johnson, Jr., Fort Pierce City Commissioner; Arnold S. Gaines, Fort Pierce City Commissioner; Tanya Earley, Fort Pierce City Attorney; Kendrah Wilkerson, Havana Town Manager; the following Havana Councilmembers: Dwight Vickers, Jennifer Stone, Nick Bert, Decorkus Allen, Janice Hart, and Eddie Bass; Larry Patrick, Okaloosa County Planning Commission Chair; Kathryn Starkey, Pasco County Commission; Brian C. Rodgers, Alachua County Assistant State Attorney; John Lyon Broling, Alachua County Assistant Regional Conflict Counsel; Matthew Landsman, Alachua County Assistant Public Defender; Edgar Jones, III, Alachua County Sheriff’s Office Court Security Officer/Bailiff; Celeste Rutledge, Alachua County Sheriff’s Office Sergeant; James Beck, Alachua County Sheriff’s Office Captain; Lt. Calhoun, Alachua County Sheriff’s Office Lieutenant; Lance Yaeger, Alachua County Sheriff’s Office Detective; and Ron DeSantis, Governor of the State of Florida.


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