Florida Ethics Update: Commission on Ethics Determinations—December Meeting

Settlement of Ethics Complaint Filed Against the Former Greater Ft. Lauderdale Convention and Visitors Bureau’s (CVB) Vice President of Convention Sales

During its public session meeting, the Commission approved a Settlement Agreement (referred to by the Commission as a “Joint Stipulation”) resolving an ethics complaint filed against the former Greater Ft. Lauderdale Convention and Visitors Bureau’s (CVB) Vice President of Convention Sales, Christine Roberts.

The ethics complaint, filed in 2018 by a representative of the Broward Office of Inspector General, alleged that while employed as the CVB Vice President of Convention Sales, Ms. Roberts misused her official position during the period of 2012 to 2015 to influence the County’s selection of her boyfriend’s event production company for County functions and in contravention of the County’s procurement policies and directives. The complaint further alleged that Roberts had an impermissible conflict of interest arising from a personal loan between Roberts and her boyfriend, which existed during the period when the boyfriend’s company was doing business with the County.

The Settlement Agreement was formed between the Commission’s attorney (referred to by the Commission as its “Advocate”) and Roberts after the Commission found probable cause at its March 5, 2021 meeting, to believe that Roberts violated the ethics laws by misusing her official position to benefit herself and another person connected to her in a private capacity, had a contractual relationship that conflicted with her official public duties, and misused information not available to the public for the benefit of another.

At last Friday’s meeting, the Commission voted to enter a final order finding that Ms. Roberts had a conflict of interest arising from a conflicting employment or contractual relationship while employed with the CVB. In light of this ethics violation, a total fine of $1,500 and public censure and reprimand was recommended by the Commission for imposition by the Governor.

Settlement of Ethics Complaint Filed Against St. Augustine Beach Commissioner

The Commission also approved the Settlement of an ethics complaint filed against former St. Augustine Beach Commissioner, Ernesto Torres.

The ethics complaint, filed in 2022 by the St. Augustine Beach Chief of Police, alleged that Torres misused his position as City Commissioner during and after a DUI traffic stop of a vehicle driven by Torres’ wife on January 23, 2022, at 12:13 a.m. Following the arrest of Mrs. Torres, the Chief of Police as well as other law enforcement officers received several phone calls from Torres. After being advised that his wife was going to jail, Commissioner Torres asked the Police Chief to “help” him. After the Police Chief advised the commissioner that “if I ‘helped him’ it would be unethical, that I could lose my job, and I would lose all respect and credibility from my agency” the Commissioner replied “well think of all the credibility you will be losing from me if you don’t help me.” The Polic Chief stated in the complaint that he took this response as a threat to his agency and his job as Torres was one of five commissioners that he reported to regarding matters pertaining to the Police Department.

Torres resigned from his position as St. Augustine Beach Commissioner on January 31, 2022, seven days after the incident occurred.

At its September 9, 2022, meeting the Commission found probable cause to believe Torres violated the ethics laws prohibiting bribery, misuse of official position, and the constitutional provision prohibiting disproportionate benefit, by soliciting favors from law enforcement officials, by using or attempting to use his official position to obtain favorable treatment for himself and his wife, and by abusing his position to obtain a disproportionate benefit.

In the Settlement Agreement, which was approved by the Commission last Friday, the Commission agreed to dismiss the anti-bribery allegation finding that there was no quid pro quo predicated upon a meeting of the minds between Torres and the police officers and Torres acknowledged that he violated the constitutional provision prohibiting disproportionate benefit “by abusing his official position to obtain a disproportionate benefit for himself and/or his wife” and that he misused his official position “to secure favorable treatment for himself and/or his wife.” In light of these ethics violations, the Commission recommended a total fine of $4,000 and public censure and reprimand for imposition by the Governor.

Dismissal of Ethics Complaint Filed Against City of West Palm Beach Mayor

During the meeting, the Commission granted the Advocate’s Motion to Dismiss a complaint filed against City of West Palm Beach Mayor, Keith James. The ethics complaint in the matter alleged that the Mayor circumvented the City’s procurement policies by awarding a no-bid contract for the provision of security guard services to a corporation owned by a friend of the Mayor. At its July 24, 2019, meeting the Commission found probable cause to believe that the Mayor misused his official position by “urging the award of a no-bid security contract to a company operated by one of his friends” and referred the matter to the Division of Administrative Hearings (“DOAH”) for a full administrative trial.

At the meeting last Friday, the Commission dismissed the matter by granting the Advocate’s Motion to Dismiss the complaint wherein the Commission’s attorney sought the dismissal on the basis that after conducting additional discovery in preparation for a hearing, there was insufficient evidence to support a violation of the law.

Dismissal of Ethics Complaint Filed Against Former North Miami Board of Adjustment Member

The Commission also voted to grant the Advocate’s Motion to Dismiss a statutorily required, self-initiated investigation concerning a former North Miami Board of Adjustment Member, former North Miami Personnel Board Member, and former North Miami Community Redevelopment Agency Advisory Committee Member, Mary C. Estime-Irvin. The motion was granted on the basis that Ms. Estime-Irvin no longer serves in her appointed positions.

Adoption of Advisory Opinion Given to Okaloosa School Board Members

In an advisory opinion approved at the meeting, the Commission advised current members of the Okaloosa County School Board that due to the application of a “sole source” exemption to the conflicts of interest prohibitions of the Code of Ethics, she would not be faced with a prohibited conflict if the School Board purchased property from a Credit Union where a School Board member serves on the Board of Directors and where several other members of the School Board do business and maintain accounts. The Commission further advised that the “sole source” exemption would also apply to negate a conflict were a School District employee to sell a parcel of land to the District.

Consideration of Advisory Opinion Requested by a Recent Appointee to the Commission on Ethics

The Commission also adopted portions of a draft advisory opinion providing guidance to the newest member of the Commission on Ethics, Laird A. Lile, regarding the financial disclosure requirements for reporting his interests in trusts on the 2024 Form 6 “Full and Public Disclosure of Financial Interests.” Although Commissioner Lile spoke at the meeting during the consideration of the draft advisory opinion, he did not participate in the vote on the opinion.

The opinion request arose as a result of a 2023 change to the financial disclosure laws requiring that commissioners of the Florida Commission on Ethics file a Form 6, “Full and Public Disclosure of Financial Interests” beginning on January 1, 2024. In light of this new filing requirement, Commissioner Laird inquired whether he was required to disclose his interest in a trust which has a “spendthrift clause” which prevents him from borrowing against trust property and income. In response to this question, the Commission advised the Commissioner that he was not required to disclose his interest in that trust as an asset because it contained clauses that prevented him from selling or borrowing against his interest in the trust.

The Commissioner further inquired whether he was required to disclose “an intentionally defective grantor trust” (IDGT) as a primary source of income on his financial disclosure form. The facts indicated that he serves as the grantor of the trust and is responsible for paying income taxes due from income earned from trust property. The Commission advised the member that he was not required to disclose the IDGT as either a primary source of income or as an asset on his financial disclosure filing.

During the Commission’s deliberation of the third question raised in the draft opinion, the Commissioner elected to withdraw it from further consideration. The question pertained to whether “a filer who is an attorney” would be required to “disclose the identities of his legal clients as secondary sources of income” on his Form 6 financial disclosure filing as “such disclosures will place him in violation of the Rules Regulating the Florida Bar.” The financial disclosure requirements of Commission Rule 34-8.005(2) of the Florida Administrative Code (“F.A.C.”) pertaining to secondary sources of income currently provide that if a Form 6 filer owns over 5% of the total assets or stock of a business, and received more than $1,000 in income from the business, than he or she must disclose the identity of any client or customer of that business providing 10% or more of that business’s gross income during that year.

The draft opinion noted that the question as to whether an attorney filing financial disclosure must disclose the identities of clients as secondary sources of income had previously been raised before the Commission which had determined, and reiterated in subsequent years, that legal clients exceeding the reporting thresholds should be disclosed despite the existence of confidentiality requirements of the Florida Bar.

During the deliberation of this question Chair Ashley Lukis asked the Commission’s General Counsel “would you recommend rulemaking to try to harmonize the current [language] of the rules with the obligation of attorneys to maintain client confidentiality” and the General Counsel advised the board that rulemaking could be undertaken by the agency to amend the requirements as to the disclosure of secondary sources of income on the Form 6 as those requirements are set forth in the Commission’s rules. He further advised that if it was the will of the Commission, their staff could institute the rulemaking process for consideration at the Commission’s next meeting on January 26, 2024. However, he further explained that rulemaking could not be undertaken to abrogate the client disclosure requirements applicable to the secondary sources of income on the Form 1, “Statement of Financial Interests” as the requirements of this form were set forth by law in Section 112.3145, F.S. In light of possible clarification via the rulemaking process, the Commissioner elected to withdraw question three from further consideration.

Thereafter, the Commission voted to approve the analysis as to questions one and two and directed staff to initiate rulemaking proceedings regarding the clarification of the Commission’s rules regarding secondary sources of income and the disclosure of client identities on the Form 6, “Full and Public Disclosure of Financial Interests.”