Florida Ethics Update: Commission on Ethics Determinations—April Meeting

Consideration of Waiver of Fine Against Ethics Commissioner Feddie Figgers

On Friday the Commission on Ethics voted to waive a $1,500 fine levied against one of its own members, Commissioner Freddie Figgers, finding that unusual circumstances prevented him from timely filing his 2021 financial disclosure form. The fine was levied after Figger’s failed to submit his 2021 financial disclosure statement on time while serving on the Board of Directors of Enterprise Florida, the state’s economic development organization.

The draft Final Order considered by the Commission on Friday indicated that although the disclosure form was due to be filed by July 1, 2022, Figgers’ form was not filed until July 28, 2023, a day after Governor Ron DeSantis appointed him to the Ethics Commission. In his appeal, Figgers stated that he had timely and accurately filled out and signed the Form 1 and provided the completed document to his support staff at Enterprise Florida to file. Yet despite these efforts, the form was not timely filed with the Commission prior to the filing deadline.

During the meeting, Steven Zuilkowski, the Commission’s General Counsel, recommended that the fines be waived, saying Figgers “took steps reasonably calculated” to satisfy the filing requirement, yet unforeseen and unusual circumstances prevented its submission to the Commission. Zuilkowski said “I have zero heartburn about the recommendation I’m making here” as it was in accord with prior determinations on fine appeals made by the agency.

During the Commission’s deliberation of the matter, Commissioner Wiliam Cervone, who served as the elected State Attorney for the Eighth Circuit in Gainesville from 2000-2020, raised concerns that Figgers’ appeal did not satisfy the unusual circumstances standard necessary to waive the fine because the law provides that it is the public official’s responsibility to timely and accurately file financial disclosure and they cannot simply delegate that responsibility others. Considering these concerns Cervone stated that he could not support the waiver of the fine.

The Commission voted 4-1 to waive the fine. Figgers, abstained from the vote and did not participate in the deliberation of the matter.

At the same meeting, the Commission also approved four other fine waivers based on the presence of unusual circumstances which prevented timely filing.

Consideration of Settlement Agreements

Settlement of Ethics Complaint Filed Against a Member of the Islamorada Village Council

The Commission approved a proposed Settlement Agreement (referred to by the Commission as a “Joint Stipulation”) formed prior to a determination of probable cause, involving an ethics complaint filed against a Councilman for the Village of Islamorada, Henry Rosenthal. The Commission’s attorney, who presented the settlement, encouraged the Commission to adopt it as Rosenthal had readily “acknowledged that he used his position to obtain a disproportionate benefit for himself . . . and he used his position to benefit himself and/or another” in violation of the ethics laws.

The Commission order the investigation of portions of the complaint alleging that Rosenthal had misused his official position and obtained a prohibited disproportionate benefit when he secretly worked with Village staff to influence the outcome of a zoning change petition involving a property he had purchased from a church and which he sought to convert to a dinner theater.

At the meeting, the Commission voted to enter a final order approving a proposed settlement of the matter finding that Rosenthal had violated the constitutional disproportionate benefit prohibition by using his position to obtain a disproportionate benefit for himself and that he misused his official position by using his position to benefit himself or another. In light of these ethics violations, a total fine of $2,500, as well as public censure and reprimand, were recommended by the Commission for imposition by the Governor.

Settlement of Ethics Complaint Filed Against a Member of the Milton City Council

The Commission also approved a Settlement Agreement, formed before a determination of probable cause, resolving an ethics complaint filed against a member of the Milton City Council, Michael Cusak.

The ethics complaint alleged in part that during the City’s contract negotiation with a potential candidate for City Manager, Cusak personally reached out to the candidate via text message and shared information obtained in his official capacity as a councilmember when he advised the candidate that he should “ignore” the salary figure contained in the uncirculated draft agreement as it was a “salary lowball” in an apparent attempt to inflate the candidate’s salary.

At the meeting, the Commission voted to enter a final order approving a proposed settlement of the matter finding that Cusak had disclosed confidential information obtained by virtue of his public position to a City Manager candidate during contract negotiations. In light of these ethics violations, a total fine of $1,500 was recommended by the Commission for imposition by the Governor.

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.

At its meeting the Commission found no probable cause to believe that Islamorada Village Council member, Joseph Pinder, III, had violated the constitutional amendment prohibiting abuse of office to obtain a disproportionate benefit and misused his official position or public resources by creating and posting a campaign video to the Village’s social media account.

The complaint alleged that Pinder violated the ethics laws when he used Village employees to create and post a campaign video to the Village’s social media. Documents in the matter, and the Commission’s attorney explained that the video thanking the voters for their support was only created and posted after Pinder was successfully elected to public office. As Pinder was no longer a candidate for public office when the video was made, the Commission’s attorney stated that there was insufficient evidence to establish that Pinder had the necessary “wrongful intent” to establish a violation of the ethics laws implicated.

During the deliberation of the matter, Commissioner William Cervone stated that although he supported the dismissal, he wanted to express to Pinder the “inappropriateness of” the alleged conduct in light of the proximity to the election and signal that it was “not a smart thing have been done.” Following discussion, the Commission unanimously voted to dismiss the matter.