Florida Ethics Update: Commission on Ethics Determinations—October Meeting
October 25, 2023
By Caroline Klancke, Esq., Florida Ethics Institute.
During its meeting on Friday, October 20, 2023, the Florida Commission on Ethics (Commission), 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.).
Commission on Ethics Elects New Vice Chair
The Commission began its meeting by voting to select a new Vice Chair. The election was necessary following the recent resignation of Don Gaetz from his position as Vice Chair of the Commission to run for the Florida Senate seat being vacated by Sen. Doug Broxson, who is leaving office next year due to term limits.
The Commission unanimously elected Michelle Anchors to serve as Vice Chair. Anchors was appointed to the Board in 2020 by Senate President Bill Galvano and reappointed by President Wilton Simpson. In her private capacity, Anchors is a resident of Fort Walton Beach and a founding partner of AnchorsGordon.
Approval of Settlement of Ethics Complaint Involving the Superintendent of Collier County Public Schools
The Commission approved a Settlement Agreement (referred to by the Commission as a “Joint Stipulation”) between the Commission’s Attorney or Advocate and the Superintendent of Collier County Public Schools, Leslie Ricciardelli. The Settlement Agreement proffered for the Commission’s consideration was entered into before any determination by the Commission regarding the existence of Probable Cause as to the underlying allegation that she filed an inaccurate Form 1, “Statement of Financial Interest,” for the year 2021.
During the deliberation of the Settlement Agreement Ricciardelli’s counsel, Mark Herron, stated that “This is a classic example of why not to fill out your financial disclosure form on the last day and in haste” which resulted in certain errors and omissions in her original financial disclosure filing. The Settlement Agreement acknowledged that Ricciardelli had taken steps to correct her 2021 financial disclosure form through the filing of an amendment.
In the Settlement Agreement, which was unanimously approved by the Commission, Ricciardelli acknowledged that she failed to file an accurate financial disclosure filing and agreed to pay a $1,000 fine.
Approval of Settlement of Ethics Complaint Involving Write-In Candidate for Collier County Commission
The Commission also approved a Settlement Agreement concerning a 2022 write-in candidate for Collier County Commission, William Oppenheimer, alleging that he violated Art. II, s. 8, of the Florida Constitution, and the financial disclosure laws by failing to file an accurate Form 6, “Full and Public Disclosure of Financial Interests.”
The Settlement Agreement contained a statement from Mr. Oppenheimer indicating that he relied at the time of filing his qualifying papers on the expertise of the Collier County Supervisor of Elections with whom he filed and that after filing to run for elective office he suffered a stroke which made it necessary for him to resign from the race.
In the Settlement Agreement, which was approved by the Commission, Oppenheimer acknowledged that he failed to file an accurate financial disclosure filing as a candidate and agreed to pay a $1,500 fine.
Approval of Settlement of Ethics Complaint Involving Former Volusia County Council Member
The Commission also approved a Settlement Agreement of the ethics complaint filed against former member of the Volusia County Council, Heather Post, which alleged that she violated Art. II, s., 8 of the Florida Constitution, and the financial disclosure laws by failing to timely file financial disclosure in 2021 via a Form 6, “Full and Public Disclosure of Financial Interest.” The proposed Settlement Agreement and other documents filed in the matter indicated that Post served on the Volusia County Council in 2017 and was reelected in 2020 to a second two-year term. Thereafter, she failed to timely file her 2021 Form 6 financial disclosure required by law and accrued the maximum penalty associated therewith. On February 8, 2023, Post filed her 2021 financial disclosure. On February 9, 2023, Post paid the maximum automatic fine of $1,500 resulting from the failure to timely file.
During the consideration of the Settlement Agreement counsel for Ms. Post, Mark Herron, stated that she had informed the Commission’s Advocate via letter that the reason she did not timely file financial disclosure was because she suffered injuries in 2022 following a fall at her home. She further explained that in July of 2022 she tried to return to work as a County Commission member but felt threatened by a member of the community who attended meetings of the commission and thereafter never when back to another in-person meeting of the Volusia County Council. Mr. Herron explained that in September 2022, Ms. Post attempted to fulfill her financial disclosure obligation but the form was inadvertently not filed with the Commission.
In the Settlement Agreement, which was approved by the Commission, Post acknowledged that she failed to timely file financial disclosure and agreed to be publicly censured and reprimanded, and to pay an additional $1,000 fine.
Dismissal of Ethics Complaint for Lack of Jurisdiction
During the meeting, the Commission dismissed an ethics complaint involving former member of the Tampa Employee Retirement Board, Steve Kenny. The matter arose from a statutorily required investigation, initiated by the Commission, against Kenny to determine whether he willfully failed or refused to file financial disclosure for the year 2017. The financial disclosure provisions of the Code of Ethics require the Commission to initiate an investigation of any public officer or employee who fails to file financial disclosure required by law, to determine if that failure was willful, and if so determined, recommend the person’s removal from their public position.
At the meeting on Friday, the Commission dismissed the complaint by granting the “Advocate’s Motion to Dismiss Complaint for Lack of Jurisdiction” which indicated that Kenny’s service on the Board ended on October 31, 2021, and because the holding of public office or employment is necessary to maintain the Commission’s investigatory jurisdiction over the matter, the complaint must be dismissed.
Consideration of an Advisory Opinion Given to a Brevard County Commissioner Seeking to be a Lobbyist for Municipalities While in Office
In an advisory opinion approved at the meeting, the Commission advised a current member of the Brevard County Commission, who is a non-attorney employee of a law firm, that the conflicts of interest provisions of the Code of Ethics would not prohibit him from being a paid lobbyist representing municipal clients before a range of governmental entities, so long as he does not lobby before the County he serves. The Commission further advised that due to an exemption in the voting conflicts law, he could permissibly vote on measures before the Brevard County Commission affecting his firm’s municipal clients with whom he works.
The County Commissioner explained that in his private capacity he is employed as the Director of Government Relations for a law firm but clarified that he is neither an attorney nor a partner or owner of the firm. He indicated that after being appointed to the Brevard County Commission in June 2023, he stepped back from all lobbying engagements in order to comply with the then-applicable In-Office Lobbying Ban contained in Art. II, s. 8(f)(2), of the Florida Constitution which had become effective on December 31, 2022—and which had prohibited all “public officers” (including county commissioners) from “lobbying for compensation on issues of policy, appropriation, or procurement before the federal government, legislature, any government body or agency, or any political subdivision of this state, during his or her term of office.”
The inquiry arose after a federal district court in August 2023 issued a permanent injunction against the Commission’s enforcement of the In-Office Lobbying Ban after finding it unconstitutional in Garcia v. Stillman, Case No. 22-CV-24156, 20235095540 (S.D. Fla. August 9, 2023). Although the Commission noted that it had filed an appeal of the ruling which remains pending—it went on to analyze the application of both the ethics issues involving conflicting employment and contractual relationships as well as voting conflicts.
With respect to the conflicting employment and contractual relationships prohibition of the Code of Ethics, which in part prohibit public officers from having employment or contractual relationships with businesses or agencies that are subject to the regulation of, or doing business with, their own public agency (here, Brevard County) or which create an impediment to their public service—the Commission advised the member that, as he is a non-attorney employee of the law firm (and not an attorney, partner, or owner of the firm) he had employment and contractual relationships with the law firm itself, but not all of its clients. As such, the Commission advised the member that he could be employed as a lobbyist and be paid to represent municipal clients before the federal government, State Legislature and other State governmental entities, as well as before cities and counties in Florida “provided that the County Commissioner refrains from lobbying, or assisting anyone in lobbying, [Brevard] County on behalf of the municipal clients.”
However, in making this determination the Commission cautioned the member that he had to be cognizant of, and comply with, other provisions of the Code of Ethics while engaging in such lobbying activities including the prohibitions against misusing his official position, or abusing his public office, for the benefit of his employer (law firm) or municipal clients. For example, they cautioned him not to use “his position as a County Commissioner to arrange a meeting or gain access to persons or information, but then using that meeting or access for the benefit of a client.” The Commission further cautioned the member not to share “any nonpublic information with a municipal client that he obtained by means of his position on the County Commission.” Importantly, the Commission also warned the Commissioner that the anti-bribery prohibitions of the Code of Ethics would prohibit his law firm from accepting a lucrative lobbying contract with a municipal client if “the circumstances indicated the client expected favorable treatment in return on matters before the County Commission.”
With regard to the voting conflicts questions—the Commission found that the member was free to vote on measures before the County Commission involving the law firm’s municipal clients for whom he lobbied—because the voting conflicts law expressly exempts from its requirements measures economically benefitting or harming a principal that has retained a public official (such as one’s private capacity employer and clients), if the employer or client is a public “agency.” As the County Commissioner’s lobbying clients are all municipalities they would be considered “agencies” exempted from the voting conflicts law requirements, and thus, he would not have to abstain from “votes bringing a special private gain or loss to municipal clients” but would have to abstain from voting on any measures affecting the private law firm that employs him.
During its closed session meeting (wherein confidential and exempt matters are addressed) the Commission took action on thirty-eight (38) matters. In a Press Release issued on October 25, 2023, the Commission made the following findings.
Ethics Complaints Considered for Probable Cause
During the meeting, ten (10) ethics complaints were considered for probable cause. Commission determinations regarding probable cause are based upon the ethics complaint, the Report of Investigation, the Advocate’s Recommendation, as well as written statements submitted by the respondent (against whom the complaint is filed) and any oral statements made at the meeting. At the meeting to determine probable cause the Commission may find that no probable cause exists to believe that a violation of the Code of Ethics or other breach of the public trust has occurred, and a public report will be issued concluding the matter and closing the file. Conversely, the Commission may find that probable cause exists to believe that a violation has occurred and order a public hearing of the complaint before the Division of Administrative Hearings (DOAH) or it may find that probable cause exists but no further action should be taken in the matter due to the totality of the circumstances. A finding of probable cause is not a determination that a violation has occurred. Such a determination is made only after a full evidentiary hearing on the allegations.
The Commission considered a complaint filed against Collier County School Board Member and Mason Classical Academy Charter School Board of Directors President, Kelly Litchter, and found probable cause on a voting conflict allegation that a prohibited conflict existed related to a vote to file a lawsuit using taxpayer money in which she personally sought financial damages.
In a similar opinion, filed against the Treasurer for Mason Classical Academy Charter School Board of Directors, David Bolduc, the Commission found probable cause to believe a voting conflict existed concerning a vote to use taxpayer money to file a lawsuit in which he personally sought financial damages.
The Commission dismissed, with a finding of no probable cause, an ethics complaint against Florida Fish and Wildlife Division of Invasive Plants Sector Director, Matt Phillips, which alleged that he misused his position to promote and advocate for herbicide chemicals produced by a particular chemical company to benefit the company.
In a complaint filed against Sean Reiss, Tallahassee – Leon County Senior Planner with the land use division, the Commission found no probable cause on three allegations that Mr. Reiss misused his public position during the review and analysis of a rezoning application. The complaint alleged that he provided an amended staff analysis to the requestor but not to the individuals who opposed the rezoning application, that he inaccurately advised the individuals opposing the zoning change that certain comments would not be admissible before the planning commissions, and that he emailed ideas or “talking points” to the rezoning applicant.
In an ethics complaint filed against North Miami Beach Commissioner, Michael Joseph, the Commission rejected the recommendation of its Attorney Advocate and found no probable cause to believe that be abused his position to obtain a disproportionate benefit and misused his position when he used a city-issued credit card to purchase a lifetime membership in the Haitian Lawyers Association.
No probable cause was found to believe Brevard County Sheriff, Wayne Ivey, misused his position when he had conversations about upcoming elections with political candidates.
In an ethics complaint filed against Town of Havana Councilman, Tim Loughmiller, the Commission found no probable cause to believe he had a prohibited conflict by being employed by a company, owned by his father, which was doing business with the City. And no probable cause was found that he had a continuing or frequently recurring conflict between his private interests and the performance of his public duties.
No probable cause was found to believe Broward County School Board Member, Brenda Fam, abused her position to obtain a disproportionate benefit and misused her position regarding allegations of inappropriate touching at a school-related event.
The Commission found no probable cause on four allegations contained in an ethics complaint filed against City of Marathon Mayor, Luis Gonzalez. The complaint alleged that Gonzalez had a prohibited conflict when a landscaping company, owned by Gonzalez and his brother, was doing business with the City. In addition, it was alleged that he had a continuing or frequently recurring conflict between his private interests and the performance of his public duties. Further, it was alleged that Gonzalez abused his position to obtain a disproportionate benefit and misused his position when landscaping services were provided to the City during his term of office.
In a self-initiated investigation – required by statute – to determine if Sandra Banky, while employed as Miami-Dade County Public Schools Principal, and who currently is employed as a Miami-Dade County Public Schools Interventionist, willfully failed to file her 2018 financial disclosure (Form 1) required by law—the Commission found probable cause, however, voted to take no further action based on the recommendation of the Commission Advocate.
Ethics Complaints Dismissed for Lacking Legal Sufficiency
The Commission also reviewed and dismissed twenty-eight (28) 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. In any matter where a complaint is found legally insufficient and dismissed, the Commission will issue an order explaining the rationale for the dismissal. Once an order dismissing the complaint has been rendered, the order dismissing the complaint and all documents related thereto will become public records.
At its October 20th meeting the Commission dismissed complaints filed against the following public servants due to a lack of legal sufficiency: Jennifer Jenkins, Brevard County School Board Member; Donna Lovejoy, Fort Myers City Assistant Director of Public Works; Denise Finn, Fort Myers City Procurement Department Manager; Rose Ambrose, High Springs City Commissioner; Gregory Carter Harrell, Marion County Clerk of Courts; Esteban Alvarez, III, Assistant State Attorney, 5th Judicial Circuit; William Woods, Marion County Sheriff; Jesse Nelson, Lynn Haven Mayor; Marlon Bolton, City of Tamarac Vice-Mayor; Mac Carpenter, Walton County Planning Director; Mike Fulford, Hernando County Planning and Zoning Commissioner; John Alloco, Hernando County Commissioner; Steve Champion, Hernando County Commissioner; Elizabeth Naverud, Hernando County Commissioner; Jeff Rogers, Hernando County Administrator; Sherry Wilson, Deerfield Beach Assistant Director of Parks and Recreation; Mike Brown, Deerfield Beach Ocean Rescue Chief; Michael Eisner, Tarpon Springs City Commissioner; Scott Rudacille, Bradenton City Attorney; Sara Hedges, Fort Pierce City Attorney; Jeff Holcomb, former Hernando County Commissioner; Michelle Miller, Hernando County Planning Administrator; Brian Hawkins, Hernando County Commissioner; Jerry Campbell, Hernando County Commissioner; Bradley Lea, Cross City Police Officer; Darby Butler, Dixie County Sheriff; Cassandra Adams, Tomoka Correctional Institution mailroom employee; and Michael Gongora, Candidate for Miami Beach Mayor.