Florida Ethics Update: Commission on Ethics Determinations—September Meeting
September 13, 2023
By Caroline Klancke, Esq., Florida Ethics Institute.
During its meeting on Friday, September 8, 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.).
Two New Members Join the Commission on Ethics
During the September 8 meeting, the Commission welcomed two new members to the Board. On September 6, two days before the Commission’s meeting, Governor Ron DeSantis announced the appointment of Tina Descovich and Luis Fuste to the Ethics Commission.
Tina Descovich is the Co-Founder of Moms for Liberty. She was previously elected to the School Board of Brevard County in 2016 and served as the President of the Florida Coalition of School Board Members. Descovich earned her bachelor’s degree in public relations from Valdosta State University.
Luis Fuste is an attorney at Fuste Law, P.A. He is a veteran of the United States Marine Corps Reserve and serves on the board of Little Bear Big Heart, Inc., Somerset Virtual Academy, and Doral College. Fuste earned his bachelor’s degree from Barry University and his juris doctorate from Florida International University.
These appointments are subject to confirmation by the Florida Senate.
Ethics Commission Elects New Chair
The Commission began its meeting by voting to select a new Chair. The election was necessary following the August 22nd resignation of Glen Gilzean from his position as Chairman due to an apparent conflict between his appointed position on the Ethics Commission and his public employment as District Administrator of the Central Florida Tourism Oversight District.
The Commission elected Ashley Lukis to serve as Chair. Lukis was appointed by Governor DeSantis to the Ethics Commission in June of 2023. Lukis is an attorney at GrayRobinson, P.A. She was listed among the 2023 Florida Super Lawyers Rising Stars by Super Lawyers Magazine. Lukis earned her bachelor’s degree in communication and media studies and her juris doctorate from Florida State University.
Approval of Settlement of Ethics Complaint Involving Former Interim Orange County Clerk of Court
The Commission approved an Amended Settlement Agreement (referred to by the Commission as an Amended Joint Stipulation) between the Commission’s Advocate and the former Interim Orange County Clerk of Court, Colleen Riley. In the Amended Settlement Agreement, Riley acknowledges that she misused her official position in violation of the Code of Ethics, agreed to pay a $10,000 fine, and to be publicly censured and reprimanded.
The ethics complaint involved allegations that Riley misused her official position by “obtaining substantial funds from Orange County, which she claimed as severance package” while employed as Interim Orange County Clerk of Court.
The Commission had previously rejected a proposed Settlement Agreement involving the matter in 2022 finding that the proposed fine amount of $3,500 was insufficient in light of the severity of the allegations.
Approval of Settlement of Ethics Complaint Involving Former Sumter County Commissioner
The Commission also approved a Settlement Agreement concerning alleged ethics violations involving former Sumter County Commission member Oren Miller. Miller had been suspended from his public position by Governor DeSantis in 2022 after he was arrested and charged with perjury, for allegedly lying under oath during a Sunshine Law violation investigation.
In the Settlement Agreement, Miller acknowledged that he had violated the gifts disclosure requirements of the Code of Ethics, by failing to timely and accurately file quarterly gift disclosure forms (Form 9s) reporting the receipt of donations exceeding $100 in value in 2021 and 2022—and agreed to pay a civil penalty in the amount of $3,000.
The Order Finding Probable Cause issued in September 2022, and other documents in the matter, indicate that Miller violated the gifts disclosure requirements of the Code of Ethics when he established a GoFundMe page soliciting donations to help him defray the cost of his legal defense and failed to timely and accurately disclose the donations provided to him that exceeded $100 in value.
At the meeting on Friday, counsel for Miller, Mark Herron, explained that Miller’s failure to timely and accurately file the necessary gift disclosures resulted from his mistaken belief that the gifts (in the form of donations exceeding $100 in value) were received at the time he withdrew them from the GoFundMe account. Rather, the Commission has explained in an advisory opinion and recent complaint prosecutions, that the gifts received via on-line platforms such as GoFundMe are received and, thus, reportable at the time that the contribution is made to the GoFundMe account.
Dismissal of Ethics Complaint Against Former Senator Jack Latvala
During the meeting, the Commission dismissed a long-running ethics case involving former State Senator Woodrow John “Jack” Latvala. The ethics complaint, filed in December 2017, alleged that 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 and lobbyists.
Prior to the consideration of the substantive ethics complaint matter, Don Gaetz advised the Commission that he intended to voluntarily abstain from voting on the matter to avoid any appearance of impropriety and to preserve the fairness of the proceedings because he and Latvala had served in the Florida Senate together where they had a “contentious relationship.” Commissioner Gaetz, as well as the Ethics Commission’s General Counsel, explained that s. 286.012, F.S., requires members of collegial bodies to vote unless they have a voting conflict. However, they explained that the statute further provides that “a member may abstain from voting on such matter if the abstention is to assure a fair proceeding free from potential bias or prejudice.”
Gaetz then considered Latvala’s “Motion to Disqualify Commission Member Don Gaetz from Participating in Consideration in All Proceedings” which alleged that the “long standing political and personal animosity” between Latvala and Gaetz, certain prejudicial comments made by Gaetz regarding Latvala, as well as “animosity between their sons” led Latvala to believe that he would not receive fair consideration from Gaetz in the ethics complaint proceeding. At the meeting, Gaetz stated that in light of his voluntary recusal from voting in the matter the motion was moot.
During the substantive consideration of the ethics complaint proceeding, the Commission dismissed the complaint via the approval of a “Motion to Dismiss Complaint” filed by the Commission’s attorney (referred to as the Commission’s Advocate) which asserted that the matter should be dismissed due to the unwillingness of several key female witnesses to testify in the matter. The Commission’s attorney explained that although the investigations resulted in evidence to support a finding of probable cause, without direct court testimony from key witnesses, the case would lack evidence to proceed. During the deliberation of the Motion, Commissioners expressed concerns regarding the dismissal due to the egregious nature of the allegations.
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 that had business before the Senate.
Consideration of Final Order Involving Monroe County Commission Member’s Failure to File an Accurate 2020 Disclosure of Financial Interests
The Commission also considered and approved a Final Order resolving the ethics complaint filed against Monroe County Commissioner, Eddie Martinez. The complaint had been sent to the Division of Administrative Hearings (DOAH) for a public hearing; however, Martinez did not participate in those proceedings. As a result, DOAH relinquished jurisdiction and the matter returned to the Commission for final action.
In the Final Order, approved on Friday the Commission found that Martinez, while serving as a member of the Monroe County Commission, violated the financial disclosure provisions of the Code of Ethics requiring the full and public disclosure of financial interests by constitutional officers, and violated Art. II, s. 8, of the Florida Constitution, by filing an inaccurate financial disclosure in 2020—and recommended that the Governor publicly censure and reprimand Martinez and impose a fine in the amount of $5,000.
Consideration of 2024 Legislative Recommendations
The Commission contemplated the agency’s Legislative Recommendations for the 2024 Session scheduled to commence on January 9, 2024. In its proposed Legislative Recommendations the Commission reiterated its continued support of legislative progress on issues proposed in previous years including strengthening the provisions of the Code of Ethics pertaining to conflicting employment and contractual relationships, as well as the voting conflicts law, and the adoption of protections for ethics complainants to shield them from adverse retaliatory actions resulting from their filing of ethics complaints.
The Commission also proposed several new legislative recommendations including: the adoption of legislation affording candidates for public office who have had specious ethics complaints filed against them with the ability to seek attorney’s fees and costs; the expansion of the financial disclosure laws to require individuals appointed to complete the remainder of a term of office, to file financial disclosure; salary withholding for complaint penalties; and others.
The Board agreed that during the 2024 Legislative Session the Chair and Vice Chair should work closely with the Commission’s Executive Director to act as liaisons to the Legislature.
During its closed session meeting (wherein confidential and exempt matters are addressed) the Commission took action on twenty-eight (28) matters. In a Press Release issued on September 13, 2023, the Commission made the following findings.
Ethics Complaints Considered for Probable Cause
During the meeting, fourteen (14) ethics complaints were considered for probable cause as well as two (2) statutorily generated investigations. 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 or it may find that probable cause exists but no further action should be taken 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 former Escambia County Commissioner, Douglas Underhill, and found no probable cause on nine allegations that he violated the ethics laws. All of the allegations relate to the acceptance of personal legal services for representation in three separate lawsuits. With respect to each of the three lawsuits, there were allegations that Underhill solicited gifts from vendors of the County, accepted prohibited donations to his personal legal defense fund from a vendor, lobbyist or the principal of a lobbyist of the County, and that he failed to disclose reportable gifts having a value in excess of $100 on a Quarterly Gift Disclosure (Form 9).
In a complaint filed against former Groveland City Council Member and Vice Mayor, Randolph Waite the Commission found no probable cause with respect to several allegations that he violated the ethics laws. During the period relevant to the complaint, Waite was employed in his private capacity as a school principal. With respect to the ethics allegations, the Commission found no probable cause to believe that he had a prohibited conflict of interest involving doing business with his own agency when the City decided to have a polling site at a church, associated with the school where he was employed as principal. Similarly, no probable cause was found to believe he was doing business with his own agency when the City and the church entered into a joint venture to lease the church’s gymnasium for community use and purchase land owned by the church. Allegations 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 by being employed as principal while serving in his public role as a member of the City Council were also dismissed with a finding of no probable cause. In addition, an allegation that the City’s purchase of land that was owned by the church gave rise to a conflicting employment or contractual relationship that created a continuing or frequently recurring conflict between Waite’s private interests and the performance of his public duties also was dismissed with a finding of no probable cause. Further, no probable cause was found to believe that Mr. Waite had a voting conflict when he voted on a matter about the construction of the gymnasium on church property.
In a complaint filed against Melbourne Beach Town Manager, Elizabeth Mascaro, the Commission found no probable cause to believe Mascaro misused her position when she encouraged a resident to request a residential zoning change and the City failed to bill the citizen for the appropriate amount.
The Commission did find probable cause to believe that Hendry County School Board member, Stephanie Busin, abused her position to obtain a disproportionate benefit and misused her public position when she distributed her campaign materials on school property.
In a complaint filed against Supervisor and Chairman of the Groves Community Development Board, Wilbur Boutin, the Commission found no probable cause to believe Boutin misused his position when he sent out a “CDD Board Year in Review” email blast to the CDD residents. Similarly, an allegation that he used information not available to the general public for his personal benefit or for the benefit of another—was dismissed with a finding of no probable cause.
The Commission did find probable cause to believe Noma Town Council member, Aneala Beachum, had a conflicting contractual relationship that created a continuing or frequently recurring conflict between her private interests and the performance of her public duties when she rented a duplex owned by the City to operate her two private businesses out of the space. However, no probable cause was found to believe that Beachum had a voting conflict when she voted on a matter pertaining to the rental property.
The Commission considered a complaint filed against Lawtey City Clerk, Lisa Harley, and found no probable cause on an allegation that she violated the nepotism law by hiring and advocating for the employment of two relatives into positions with the City. No probable cause was found to believe she misused her position to hire her relatives. Further, no probable cause was found on allegations she misused her position when she provided a list of registered Lawtey voters to her political allies or by allowing them to set up candidate tents/tables at City Hall prior to the elections. An allegation she used information not available to the general public for her personal benefit or to benefit someone else was also dismissed with a finding of no probable cause.
The Commission considered a complaint filed against Delray Beach Planning and Zoning Board Member, Robert Long, which alleged he had a voting conflict on three separate votes concerning a residential development project that could benefit his client. The allegations were dismissed with a finding of no probable cause.
In a complaint filed against North Miami Beach City Commission member, McKenzie Fleurimond, the Commission found probable cause to believe he abused his position to obtain a disproportionate benefit and misused his public position when he charged a $300 gala ticket sponsored by the Florida Democratic Party to his city-issued purchasing card.
No probable cause was found to believe Holmes County Commission member, Brandon Newsom, had a conflicting contractual relationship that created a continuing or frequently recurring conflict between his private interests and the performance of his public duties when he served as a part-time “Reserve Deputy” in order to complete training so his law enforcement certification would not lapse while he was serving as a county commissioner.
In a complaint filed against Holmes County Development Executive Director, Joe Rone, the Commission found no probable cause to believe Rone misused his position when he was involved in the process of Holmes County Development Commission attempting to sell a property for commercial development.
In a complaint filed against Oldsmar City Council member, Andrew Knapp, the Commission found probable cause to believe Knapp failed to complete the statutorily required ethics training for calendar year 2020. In addition, probable cause was found to believe he violated the disclosure laws when he checked the box on his 2020 “Statement of Financial Interests” (Form 1) certifying that he completed the training. However, the Commission elected to take no further action on both allegations due to the particular circumstances of the matter.
The Commission found probable cause to believe that Melbourne Beach Town Commission member, Corey Runte, violated the voting conflict law by failing to personally vocalize his conflict prior to abstaining from a vote at a “Special Town Commission Meeting” to confirm qualified Town candidates for an upcoming election, in which he was a candidate. The Commission also found probable cause that Runte failed to file the required Memorandum of Voting Conflict (Form 8B) when he abstained from the vote. However, the Commission elected to take no further action on both allegations due to the particular circumstances of the matter.
Probable cause was found to believe that Holmes County Development Commission Board member, Lance Medley, had a conflicting contractual relationship when Medley’s LLC purchased property owned by the Holmes County Development Commission. However, the Commission elected to take no further action on the allegation due to the particular circumstances of the matter. Further, no probable cause was found to believe Medley abused his position to obtain a disproportionate benefit or misused his position when he was involved in the Holmes County Development Commission’s process of attempting to sell the property for commercial development.
The Commission voted to dismiss a statutorily required, self-initiated investigation concerning a willful failure to file a 2019 “Statement of Financial Interests” (Form 1) by the Department of Transportation Operations Manager, Howard Bechthold. Bechtold previously filed a financial disclosure appeal with the Commission that resulted in the maximum automatic fine of $1,500 being reduced. As the $1,500 maximum fine is necessary to invoke and maintain the Commission’s jurisdiction in proceedings involving the willful failure to file financial disclosure, the Commission dismissed the matter based upon the lack of jurisdiction to proceed.
Similarly, the Commission voted to dismiss a statutorily required, self-initiated investigation concerning a willful failure to file a 2018 “Statement of Financial Interests” (Form 1) by the Department of Children and Families Council on Homelessness member, Andrae James Bailey. Bailey previously filed a financial disclosure appeal with the Commission that resulted in the maximum automatic fine of $1,500 being waived. As the $1,500 maximum fine is necessary to invoke and maintain the Commission’s jurisdiction in proceedings involving the willful failure to file financial disclosure, the Commission dismissed the matter based upon the lack of jurisdiction to proceed.
Ethics Complaints Dismissed for Lacking Legal Sufficiency
The Commission also reviewed and dismissed twelve (12) 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 September 8, 2023, meeting the Commission dismissed complaints filed against the following public servants due to a lack of legal sufficiency: Florida Department of Corrections Inspector General, Kenneth Sumpter; Fort Pierce Mayor, Linda Hudson; Liberty Fire District Board Member and Assistant Fire Chief, Tony Roy; District 5 Lee County Commissioner, Mike Greenwell; Town of Ponce Inlet Planning Board member, Henry “Skip” White; Candidate for Marion County Commission, Keith Poole; Turtle Run Community Development District Chairman, Eugene Carney; Tomoka Correctional Institution Warden/Superintendent, Jared Cox; Parker Mayor, Andrew Kelly; Martin County Commissioner and former Pal Mar Water Control District Board of Supervisors member, Sarah Heard; Tomoka Correctional Institution Food Service Director, Patrick Cirwithian; and Martin County Commission member Harold Jenkins.