Florida Ethics Update: Commission on Ethics Determinations—March Meeting
March 13, 2024
By Caroline Klancke, Esq., Florida Ethics Institute.
During its meeting on Friday, March 8, 2024, 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 “Sunshine Amendment” to the Florida Constitution (Art. II, s. 8, Fla. Const.).
Public Session
Quorum Present
At the Commission’s meeting, only five of the nine-member Board were present—which constituted a quorum. Currently, seven of the nine Commission seats have been filled via the appointment process. However, during the Legislative Session, which culminated on March 8, the Senate declined to confirm the nomination of Tina Descovich to the Commission, a position which requires Senate confirmation.
Descovich was appointed to serve on the Commission by Governor DeSantis on September 6, 2023. In her private capacity, Descovich is the co-founder of Moms for Liberty, a national nonprofit. Descovich could be subject to re-appointment by the Governor and stay on the board until the next Legislative Session. She was not present at the March 8 Commission meeting.
Consideration of Settlement Agreements
Settlement of Ethics Complaint Filed Against the Battalion Chief for the Palm Beach Fire and Rescue
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 Battalion Chief for the Palm Beach Fire and Rescue, Brian Mulligan.
The ethics complaint, filed by the Palm Beach County Inspector General, contained an Investigative Report authored by the Palm Beach County Office of Inspector General wherein they found sufficient evidence supporting an allegation that Mulligan had offered mentoring and training classes for a Captain’s Promotional Exam to Fire Rescue employees he supervised for a fee of approximately $7,000 payable to Chief Mulligan if the employees passed the exam and were subsequently promoted. The report further indicated that on several occasions Mulligan conducted the training sessions at County Fire Station 39—findings that warranted referral of the matter to the Commission on Ethics, which also investigated the matter.
At the meeting, the Commission voted to enter a final order approving a proposed settlement of the matter finding that Mulligan had misused his official position “by conducting mentoring or training classes for a Captain’s Promotional exam to Fire Rescue employees with the use of Fire Rescue property and/or resources” in exchange for compensation. The Commission further found that Mulligan had a prohibited conflict of interest “by privately tutoring or mentoring Fire Rescue employees for money or services.” In light of these ethics violations, a total fine of $2,000 was recommended by the Commission for imposition by the Governor.
Settlement of Ethics Complaint Filed Against Hendry County School Board Member
The Commission also approved a Settlement Agreement of an ethics complaint filed against a member of the Hendry County School Board, Stephanie Busin.
The ethics complaint alleged that Busin used an opportunity to speak, in her official capacity, to students about elections and voting—to distribute her campaign materials to them.
At the meeting, the Commission voted to enter a final order approving a proposed settlement of the matter finding that Busin violated the constitutional prohibition against abusing one’s office to obtain a disproportionate benefit by “violating School District policies when speaking to students about elections in her official capacity and distributing her campaign materials to them” and found that she misused her official position by using “her position and/or public property or public resources to secure a special private” benefit for herself. In light of these ethics violations, a total fine of $3,000 as well as public censure and reprimand were recommended to the Governor for imposition.
Consideration of Settlements Involving the Willful Failure to File Financial Disclosure
Florida law requires that if a public official fails or refuses to file the legally required annual financial disclosure for the position in any year, the Commission must self-initiate an investigation of the matter to determine if the failure to file was willful. If found to be willful, the sole penalty for the violation is a recommendation of removal from public office or employment.
Settlement of Ethics Matter Involving the Failure of a Member of the Building/Flood Board of Adjustment and Appeals for the City of Clearwater to File Required Financial Disclosure
The Commission also approved a Settlement Agreement of a matter involving the failure of a member of the Building/Flood Board of Adjustment and Appeals for the City of Clearwater, Mark Cagni. The Commission voted to enter a final order approving a proposed settlement of the matter finding that Cagni had willfully failed to file the legally required Form 1, “Statement of Financial Interests” for the year 2018. In light of this ethics violation the Commission recommended that “[r]emoval from public office” be imposed by the Governor.
Settlement of Ethics Matter Involving the Failure of a Member of the Moore Haven Mosquito Control District to File Required Financial Disclosure
The Commission also approved a Settlement Agreement of a matter involving the failure of a member of the Moore Haven Mosquito Control District, Angela Hough. In the proposed settlement Ms. Hough denied that her failure to timely file financial disclosure was willful and asserted that the circumstances surrounding her personal life made it difficult for her to timely file her 2018 Form 1, “Statement of Financial Interests.” The Commission voted to enter a final order approving a proposed settlement of the matter finding that Hough had willfully failed to timely file the legally required Form 1, “Statement of Financial Interests” for the year 2018 and recommending removal from public office.
Consideration of Probable Cause
Florida law provides that persons against whom ethics complaints are filed may waive confidentiality of the matter thereby permitting a determination of probable cause to be heard during the Public Session portion of the Commission meeting.
The Commission found probable cause to believe that Jonathan L. Owens, while serving as a Legislative Aide to Escambia County Commissioner Douglas Underhill, misused public information gained by reason of his official position when he released unredacted cell phone data containing text messages regarding County business and private text messages to an individual who had an ongoing litigation with the County.
The complaint, which was filed by Escambia County Commissioner, Jeffery Bergosh, alleged that while serving as a commissioner he used his personal cell phone for both public and private business. Technical issues with his private cell phone gave rise to concerns that County related public records could be deleted from his phone in violation of the Public Records Act. As such, the Commissioner provided a thumb drive to County IT staff containing an unredacted record of his private cell phone data which included personal medical, financial, familial, and business records, in addition to public records. In June 2023, the Commissioner was notified by the Escambia County Attorney’s Office that the entire, unredacted contents of his personal cell phone had been disseminated to a firm representing a former County employee engaged in litigation involving the County.
The Report of Investigation issued in the matter indicated that Mr. Owens explained to a local radio show that while employed as an aide to Commissioner Underhill, who had a contentious relationship with Commissioner Bergosh, an anonymous source had left the thumb drive in his County office and “he assumed that another county employee put it on his desk because they wanted him to have it.” Rather than turning the thumb drive over to law enforcement or the County IT department, Owens “just held on to it.”
However, Commissioner Bergosh later learned that information from his cell phone records had been shared with a corporate owner of the Pensacola News Journal, which later published text message communications between Commissioner Bergosh and his wife. The Commission’s investigation further indicated that Owens also shared the cell phone information with attorneys representing a former county employee that was involved in a pending lawsuit “because he thought it would be helpful.”
Having found probable cause in this matter, the Commission will order a public hearing (or administrative trial) of the matter before the Division of Administrative Hearings (DOAH).
Consideration of Advisory Opinion Requests
The Code of Ethics provides that any public officer, public employee, and certain others who are in doubt regarding the application of the Code of Ethics or Sunshine Amendment may request an Advisory Opinion from the Commission.
Consideration of Advisory Opinion Requested by an Attorney Associated with a Firm Hired to Provide Legal Services to Cities
The Commission approved the adoption of draft advisory opinion (File No. 2810) advising an attorney working for a firm that has been hired to provide legal services to municipal clients, that he is not required to file financial disclosure annually via a Form 1, “Statement of Financial Interests,” unless he is the person regarded as the municipal attorney for that city.
Consideration of Advisory Opinion Requested by an Attorney Seeking Guidance Regarding Financial Disclosure Requirements Pertaining to Trusts
The Commission approved the adoption of draft advisory opinion (File No. 2811) which provided guidance regarding the financial disclosure requirements of the Form 1, “Statement of Financial Interests,” when the requestor is the beneficiary of an irrevocable trust that contains indirectly-owned real property and interests in specified businesses. In the opinion the Commission advised the filer that beneficial interests in a trust did not need to be disclosed in the Intangible Personal Property section of the Form 1 when they are not alienable (or not able to be sold or transferred to another) and that the filer did not have to disclose the trust in the Primary Source of Income section of the Form 1 as he had not received any gross income from the trust during the reporting period.
However, the Commission went on to further advise the filer to disclose interests in real property and specified business interests held by the trust if those interests exceeded the thresholds requiring disclosure. The Commission further advised that filers who are the beneficiary of a trust have an implied obligation “to make a reasonable inquiry regarding his or her own interests” regarding the assets in the trust at issue and that “the disclosure of indirectly owned real property and interests in specified businesses exceeding disclosure thresholds is required on CE Form 1.”
Consideration of Amendments to Commission’s Financial Disclosure Rule Chapter 34-8, Florida Administrative Code
The Commission also considered and approved proposed amendments to Commission Rule Chapter 34-8 of the Florida Administrative Code (F.A.C.) which govern the disclosure of financial interests.
In part, the measure concerned proposed amendments to Rule 34-8.005 regarding the requirements of disclosure concerning the Form 6, “Full and Public Disclosure of Financial Interests” pertaining to the Secondary Sources of Income portion of the filing. Currently the Rule, and related instructions, require filers to identify each source of income (including major clients and customers) that contributed more than 10 percent of the gross income of businesses that they own.
The proposed Rule amendment sought to include a new subsection—subsection 5—wherein attorney filers would need only disclose “Legal Client” in satisfaction of the secondary sources of income disclosure section without providing any further identifying information.
Additional portions of the Rule amendment involved changes to the instructions for completing the Form 6 which are incorporated by reference into Rules 34-8.001, 34-8.002, 34-8.008, and 34-8.009, F.A.C.
Consideration of Approval of Expenditure for Pending Legal Challenges to Form 6 Requirements Now Applicable to City Commissioners
The Commission approved an additional expenditure of public funds to defray litigation costs associated with two lawsuits filed against the Commission involving challenges to recent changes to the financial disclosure statutes, ss. 112.3144 and 112.3145, F.S., passed during the 2023 Legislative Session, which require mayors and city commission members to file the Form 6, “Full and Public Disclosure of Financial Interests” as opposed to the Form 1, “Statement of Financial Interests,” they had previously filed. See Executive Director’s Report, Feb. 21, 2024, for additional information regarding all pending litigation involving the Commission.
Discussion of Legislative Report
The Commission discussed several bills having ethics impact identified in its Legislative Report that had arisen during the Regular Legislative Session which commenced on January 9, 2024, and culminated on March 8, 2024.
The Executive Director highlighted the fate of House Bill (HB) 735, and the companion Senate Bill (SB) 734 which sought to adopt s. 112.3262, F.S., within the Code of Ethics to prohibit people from lobbying a county, municipality, or special district without first registering as lobbyist with the Commission on Ethics. Executive Director, Kerrie Stillman, stated that these bills “died in committee” and, thus, were not passed.
Stillman further discussed the Legislative passage of SB 7014 which adopts specific time frames for ethics complaint investigations and imposes Commission member term limits of two terms. Additional provisions of the bill, which were added via floor amendments:
- Amend the Code of Ethics, financial disclosure laws ss. 112.3144 and 112.3145, F.S., pertaining to the portions of the financial disclosure forms requiring the disclosure of major clients of businesses that the filer owns in the Secondary Sources of Income as well as the Liabilities section to include an exemption for the disclosures of attorney filers, and others subject to a client confidentiality requirements, to allow them “write ‘Legal Client’ in the disclosure fields without providing further information.”
- Amend the Code of Ethics statute governing the Commission’s ethics complaint process, s. 112.324, F.S., to require that ethics complaints must be provided in a written, sworn complaint “which is based upon personal knowledge or information other than hearsay”.
- Amend the Code of Ethics, s. 112.324, F.S., to require that the Commission may only deviate or reject the written recommendation of its counsel via a two-thirds majority vote.
- Amend the provisions of the Code of Ethics, s. 112.326, F.S., which allow political subdivisions of the State (such as cities and counties) to adopt more stringent ethics requirements (via ordinance or rule) than those set forth in the State ethics laws and thereby create local ethics commissions:
o To prevent local ethics commissions or the “governing body of the political subdivision” from self-initiating any ethics compliant investigations;
o Requiring that local ethics investigations can only occur as a result of written, sworn complaints “based upon personal knowledge or information other than hearsay”; and
o Requiring the establishment of a process for the recovery of attorney’s fees and costs by public officials that have had ethics complaints filed against them “with a malicious intent to injure the reputation” of the public official and which the complaint filer knows were false or “with reckless disregard for whether the complaint contains false allegations.”
Stillman advised Commission members that the impact of the bill, which will now be sent to the Governor’s office for signature into law, will only be known “in the fullness of time.”
Executive Session
During its closed session meeting (wherein confidential and exempt matters are addressed) the Commission took action on twenty-six (26) matters. In a Press Release issued on March 13, 2024, the Commission made the following findings.
Ethics Complaints Considered for Probable Cause
During the meeting, thirteen (13) 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 against Fort Pierce City Commissioner and member of the Fort Pierce Redevelopment Agency (FPRA), Jeremiah Johnson. The Commission found no probable cause on three allegations. The allegations were that he violated the constitutional amendment prohibiting abuse of office for a disproportionate benefit, misused his position, and voted on matters that would have inured to his or another’s special private gain during the selection of an engineering firm for the “Fisherman’s Wharf project.” He supported the top two recommended proposers which included a company that would employ him in the future. In addition, a restaurant owned by his wife’s family was located within the boundaries of the Fisherman’s Wharf project and could be impacted.
The Commission found no probable cause to believe that West Villages Improvement District Board of Supervisors member, John Luczynski, violated the constitutional amendment prohibiting abuse of office for a disproportionate benefit and misused his position to secure a benefit for his employer by setting water rates and fees for the district. Allegations Mr. Luczynski had a conflicting employment or contractual relationship between his private employment and his public duties and that he failed to disclose a voting conflict or file a voting conflict memorandum as required by law were dismissed with a finding of no probable cause. No probable cause also was found on identical allegations in related complaints filed against three West Villages Improvement District Board of Supervisors members, Steve Lewis, Thomas Buckley, and Christine Masney.
Probable cause was found to believe that former Quincy City Manager, Jack L. Mclean, Jr, 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 personally loaned a City Commissioner $20,000. However, the Commission elected to take no further action on the allegation due to the particular circumstances of the matter.
The Commission considered a complaint against the former Mayor of Otter Creek Theresa Granger. The Commission found no probable cause to believe Ms. Granger violated the constitutional amendment prohibiting abuse of office to obtain a disproportionate benefit, misused her position, and used information not available to the general public for her personal benefit or to benefit someone else when she invited a friend to the Town Office and allowed them access to records.
The Commission considered a complaint against the Miami Mayor, Francis Xavier Suarez. No probable cause was found in the three allegations related to events Mr. Suarez attended during the Miami Grand Prix. The allegations were that Mr. Suarez solicited or accepted something of value based upon an understanding that he would be influenced in his official capacity, accepted prohibited gifts from a vendor, lobbyist, or the principal lobbyist of the City, and that he failed to disclose reportable gifts in excess of $100 on a Form 9, Quarterly Gift Disclosure.
The Commission found no probable cause to believe that Tamarac City Commissioner, Marlon Bolton, violated the constitutional amendment prohibiting abuse of office to obtain a disproportionate benefit, misused his position, and voted on matters that would have inured to his or another’s special private gain or loss by voting for the City’s purchase of 2.53 acres of property from Shaker Village. Mr. Bolton resides in Shaker Village and the church where he holds the position of Senior Pastor is also located there.
No probable cause was found to believe that Lake City Clerk, Audrey Sikes, violated the constitutional amendment prohibiting abuse of office to obtain a disproportionate benefit and misused her position when she placed a resolution on the agenda to rescind the appointment of a resident to the City’s Planning and Zoning Board and that she subsequently lied about her response to a request to remove the resolution from the City Council meeting agenda.
No probable cause was found to believe former Punta Gorda City Councilmember, Mark Kuharski, violated the constitutional amendment prohibiting abuse of office to obtain a disproportionate benefit and misused his position by using a City social media page to make election-related posts about his opponent.
In a referral from the Florida Department of Law Enforcement, the Commission voted to find no probable cause to believe Citrus County Commissioner, Diana Finegan, violated the constitutional amendment prohibiting abuse of office to obtain a disproportionate benefit and misused her position when she sought neighbors’ support of her County application for a gate at the entrance to her property. It was alleged Ms. Finegan attempted to gain the support of her neighbors by suggesting she would support their applications if they came before the Commission. An allegation she solicited or accepted something of value, based upon an understanding that she would be influenced in her official capacity also was dismissed with a finding of no probable cause. Likewise, the Commission found no probable cause to believe Ms. Finegan accepted a thing of value given to influence her vote or official action.
Ethics Complaints Dismissed for Lacking Legal Sufficiency
The Commission also reviewed and dismissed fourteen (14) 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 March meeting the Commission dismissed complaints filed against the following public servants due to a lack of legal sufficiency: Robert Fipps, Union County Deputy Sheriff; Jennifer Marcoux, Florida Highway Patrol Lieutenant; Cynthia Mcintyre, Cory Lakes Isles Community Development District Supervisor; Mac Johns, Union County Commissioner; Anne Gerwig, Village Of Wellington Mayor; George M. Lindsey, III, Polk County Commissioner; Two complaints against Jorge Luis Castillo, Cory Lakes Isles Community Development District Supervisor; Antonio Jefferson, Midway City Manager Consultant; Morris Raymer, Bayshore Gardens Park And Recreation District Board Of Trustees Chair; Richard Ramsay, Monroe County Sheriff; Joe Ayoub, Safety Harbor Mayor; Sally Dickson, University Park Recreation District Chair; and Debbie Mayfield, member of the Florida Senate.
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