Anti-Lobbying Amendment Challenge

The Commission engaged in a discussion regarding the status and cost of the on-going constitutional challenge in Garcia v. Stillman et al., case 1:22-cv-24156 to the newly effective Anti-Lobbying Amendment contained in Art. II, s. 8(f)(1)-(3), of the Florida Constitution. Correspondence to the Commission’s General Counsel circulated in the meeting materials provided information regarding the estimated cost of the Commission’s portion of the litigation defense and indicated that the trial is scheduled to commence on August 28, 2023.

The litigation 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 Anti-Lobbying Amendment—prohibiting “public officers” (including all state lawmakers and elected officials, City Councilmembers, County Commissioners, School Board members, and others) 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. Plaintiffs 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” from lobbying while they are in office. 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.

Consideration of Latvala Matter Continued to September 8th Meeting

During the meeting, Commission Chair Glenton “Glen” Gilzean, Jr., stated that the consideration of a long-running ethics case involving former Senator Jack Latvala had been continued until the agency’s September 8th meeting at the request of the Commission’s attorney (referred to as the “Commission Advocate”) “due to an illness.”

The Order Finding Probable Cause issued by the Commission on July 27, 2022, and other materials in the matter, indicate that ethics case involves allegations that former Senator Latvala violated the anti-bribery prohibitions of the Code of Ethics while in office by soliciting or accepting sexually oriented favors from female staff members and/or lobbyists with the understanding that his official actions or judgment would be influenced and that he misused his official position as a Senator by engaging in sexually oriented comments, behavior, or invitations to female staff or lobbyists.

The Commission had been scheduled to consider a “Motion to Dismiss Complaint” filed by the Commission Advocate which asserts that the matter should be dismissed due to the unwillingness of several key female witnesses to testify in the matter. Latvala, who left public office in 2017 following the publication of a Special Master Investigative Report to the Florida Senate about the allegations, has denied any wrongdoing in the matter but has acknowledged that he had an extramarital affair with a lobbyist.

Consideration of Settlement Agreement Involving the Willful Failure to File Financial Disclosure

The Commission also considered and approved a Settlement Agreement entered into between the Commission Advocate and Dorcas Fire District Commissioner and Fire Chief, John Polinsky, involving Mr. Polinsky’s alleged willful failure to file his legally-required 2018 financial disclosure. The only penalty available within the Code of Ethics for willfully failing to file financial disclosure is the removal from public office or employment.

In the Settlement Agreement, the Respondent acknowledged that he had willfully failed to file his 2018 Form 1, Statement of Financial Interests. Removal from his public office will be recommended to the Governor for imposition.

Consideration of Legal Sufficiency of a Complaint Wherein Confidentiality Had Been Waived

The Commission also dismissed an ethics complaint filed against Tarpon Springs City Commissioner, Peter Koulias. The complaint alleged that Mr. Koulias, while serving as a member of the Tarpon Springs City Commission, violated the Code of Ethics by engaging in a series of personal attacks against the Complainant and his spouse. The Commission on Friday dismissed the matter for failing to constitute a legally sufficient complaint as it failed to satisfy the legal requirements necessary to implicate either the misuse of public position prohibition of the Code of Ethics or the constitutional prohibition against abusing one’s public position. The complaint was considered during public session because Mr. Koulias waived confidentiality.

Consideration of Advisory Opinion Involving University Trustee Writing Commentary for Publications Regarding his University

The Commission also considered and adopted an advisory opinion requested by the General Counsel for New College of Florida on behalf of a recently-appointed member of the University’s Board of Trustees. The opinion explains that the Trustee writes and is paid to provide content to different publications and would like to publish content about the University on these platforms. Thus, the Trustee inquired whether he would be prohibited by the Code of Ethics, from writing and accepting payment for publishing articles concerning his University. He further queried whether the contractual relationships formed due to his journalism presented a prohibited conflict for him, and whether he is limited in soliciting personal donations to him via online media platforms.

The Commission began its analysis by scrutinizing the portions of the Code of Ethics which prohibit the Trustee from misusing his official position, resources, or inside information not otherwise available to the public—for his personal benefit or for the benefit of others connected to him. The Commission also considered whether such conduct would violate the constitutional prohibitions against abusing one’s public office to obtain a disproportionate benefit. The Commission concluded that the Trustee would not be prohibited in his private capacity from writing and accepting payment for publishing content concerning the University, provided that the content involved only publicly available information. The Commission further cautioned the Trustee not to use any University personnel to prepare the content that he privately publishes and to emphasize that he is sharing only his personal opinions and not those of the University board on which he serves.

The Commission further analyzed the facts to determine if they gave rise to a conflicting employment or contractual relationship for the Trustee. The Commission found that the facts presented did not give rise to a conflict but cautioned the Trustee regarding the portions of the statute which prohibit him from having any contractual relationships with any agency or business entity that is doing business with, or regulated by, the Trustee’s agency (the University). The Commission explained that the Trustee has a contractual relationship with each paid subscriber to his on-line platforms and cautioned that the Trustee must “be vigilant” and not maintain or accept any paid subscriptions from agencies or business entities that are doing business with the University or regulated by the University.

The Commission also analyzed whether donations made to the Trustee through his online media account constituted prohibited gifts or “expenditures” under the Code of Ethics. As the Trustee is a public official who files financial disclosure annually, he is subject to the gifts law contained in Section 112.3148, F.S., of the Code of Ethics, which prohibits the solicitation of gifts from prohibited sources and provides restrictions on the acceptance of gifts by public officials. As a financial disclosure filer who serves in the Executive Branch of Florida, the Trustee is also subject to an expenditure ban which prohibits him from accepting things of value from lobbyists, or the employer of lobbyists, made for the purpose of lobbying or to engender his goodwill.

The Commission found that the anti-solicitation prohibition within the gifts law requires that the Trustee must remove the solicitation for donations to himself or his personal nonprofit from his media platforms or include language advising statutorily prohibited donors from contributing. The Commission further advised that the Trustee “must decline any donations to himself or his nonprofit from a political committee, or from any Executive Branch agency lobbyist” or the employer of lobbyists.  Further, the Trustee “may not accept donations to himself or his nonprofit or more than $100 from a vendor or lobbyist” of the University and that he must report any donations not otherwise prohibited having a value of more than $100.