Florida Ethics Update: Ethics Commission Determinations—September Meeting
September 19, 2024
During its meeting on Friday, September 13, 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 State constitution (Art. II, s. 8, Fla. Const.).
Public Session
The Commission began its meeting by welcoming a new member to the board— Paul D. Bain. Commissioner Bain is a Tampa attorney that represents land and business owners when their property is taken for public projects. He was appointment to the Commission by the Speaker of the House of Representatives to serve a two year term which expires in June 2026.
The outgoing Chair, Ashley Lukis, was honored for her service to the Commission. Chair Lukis announced the resignation of Commissioner William Cervone from the board and thanked him for his service.
Thereafter, the Commission voted to select Luis Fusté to serve as the new Chair for the 2024-2025 term beginning September 13, 2024. Chiar Fusté was appointed by Governor DeSantis in June of 2023.
A resident of Coral Gables, Fusté operates Fusté Law, PA. Prior to establishing his own practice, Fusté served as Assistant General Counsel for the South Florida Police Benevolent Association (PBA), and served for 32 years as a sworn law enforcement officer with the Miami-Dade Police Department. He is a veteran of the United States Marine Corps.
Michelle Anchors was elected to continue as Vice Chair for the 2024-2025 term. Anchors was appointed by Senate President Bill Galvano in 2020 and was reappointed by President Wilton Simpson in 2022. She is a resident of Fort Walton Beach and a founding partner of AnchorsGordon.
Florida Commission on Ethics Turns 50!
She noted that the independent agency began with a three-pronged approach to restoring the public trust in government through financial disclosure, standards of conduct for public officials, and administrative enforcement.
Notable members of the original Commission board included Sandy D’Alembert, LeRoy Collins, and John Grant, among others. And evidence that the Commission hit the ground running serving the public interest was evident from the more than 200 ethics advisory opinions that were issued in its first year alone. The Commission has continued this great work advising public servants regarding how best to comply with the Florida Code of Ethics via the issuance of more than 2,000 ethics advisory opinions over the agency’s 50 years of existence.
E-Filing of Financial Disclosure by Nearly 40,000 State and Local Public Officials Culminates
By law in Florida nearly 40,000 state and local elected and appointed public officials, candidates for office, as well as certain public employees are legally mandated to file an annual disclosure concerning their private financial relationships by July 1. There is a penalty free grace period until September 1 (extended this year through Sept. 3). Beginning in 2024 all financial disclosure forms for both state and local officials had to be electronically created and filed with the state Commission via the new Electronic Financial Disclosure Management System (EFDMS).
Executive Director Stillman advised that as of the September 3rd deadline 97% of Florida’s filers had submitted their forms. She noted that this figure is down slightly from the 98.5% that had filed by the same date in 2023. She said that the 992 public officials who failed to file by the deadline this year have automatically begun to be fined at a rate of $25 per day late up to a maximum penalty of $1,500 after 60 days. As the system is now entirely electronic, the Commission has already begun to assess fines, advise late filers as to the accrual of fines, and receive fine payments.
Approval of Advisory Opinion on Gifts Involving Loans and GoFundMe Donations to Support Mayor’s Legal Defense Fund
In an ethics advisory opinion approved at the meeting, the Commission advised the Mayor of the City of Milton—who is currently defending herself in a lawsuit filed by the City alleging that she failed to produce public records in violation of Florida’s Public Records Act—as to ethics requirements concerning two methods she has considered to defray the costs of her mounting legal bills. In particular, the opinion analyzes the state’s gifts law requirements concerning possible loans from members of the community and donations made to GoFundMe pages established to cover her legal expenses.
The Commission advised the Mayor that the acceptance of a preferential rate on a loan would be considered to be a gift, which could be accepted if provided by a non-restricted source (i.e. donors that are not vendors and lobbyists of the City), but cautioned that it would need to be reported on a Form 9, “Quarterly Gift Disclosure” and provided guidance regarding how to value such a gift.
The Commission further advised the Mayor that her supporters would be able to set up a legal defense fund through a GoFundMe page, so long as she ensures that any such page contains language which advises the public that political committees, vendors, and lobbyists of the City cannot donate as “general requests for donations” to such a page qualify as “soliciting” for the purposes of the gifts law. And further advised that were she to receive donations exceeding $100 to the fund from such prohibited sources, she could not accept them.
The Commission cautioned that donations made by non-restricted sources could be accepted, however, were they to exceed $100 in value would need to be reported via a Form 9. Further, the General Counsel of the Commission was afforded the ability to add certain language to the opinion regarding anonymous donations as it is incumbent upon the Mayor to make “a reasonable inquiry of the page administrator to learn the identities of the donors” to the legal defense fund so that she may comply with all gifts law requirements.
Consideration of Financial Disclosure Fine Appeals
The Commission considered and approved 17 appeals of financial disclosure fines which had been assessed for late filing of forms. Such fines may be appeal based on the presence of unusual circumstances which prevented the timely filing of the required disclosures.
Approval of Changes to Ethics Complaint and Referral Rules
The Commission considered and approved changes to its rules concerning the process it uses to accept and investigate ethics complaints and referrals. The updates were necessary due to the Legislature’s 2024 passage of Senate Bill 7014 which the Commission’s rulemaking memo notes limits the “Commission’s investigative authority concerning written complaints to only those allegations ‘based on personal knowledge or information other than hearsay.’”
Gray Schafer, Deputy General Counsel for the Commission, explained that the rulemaking updates to the ethics complaint rules incorporate language from a 2010 Elections Commission case which adopted a broader view of information admissible as hearsay finding that “an allegation meets this standard so long as it is based on information that is or likely will be admissible under a statutory hearsay exemption” including those contained in public records, business records, spontaneous statements describing or explaining an event, market reports, evidence of the reputation of a person’s character among associates or in the community, as set forth in Ch. 90 of the evidence code.
Ethics Legislative Proposals for 2025
Each year the Commission submits proposals to the legislature which it believes will strengthen the Florida Code of Ethics. At Friday’s meeting the Commission elected to adopt a more “streamlined” approach to its legislative recommendations for the 2025 legislative Session—dropping requests to close loopholes in the conflicts of interest and voting conflicts laws which had been included in past years’ requests—in favor of recommending that the legislature enact whistleblower protections for ethics complaint filers and afford the Commission with the ability to engage in salary withholding for public officials that have been found guilty of ethics violations and fined.
Executive Session
During its closed session meeting (wherein confidential and exempt matters are addressed) the Commission took action on forty-two (42) matters. In a Press Release issued September 18, 2024, the Commission made the following findings.
Ethics Complaints Considered for Probable Cause
During the Executive Session meeting, nine (9) 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 Pasco County Commissioner, Kathryn E. Starkey. No probable cause was found to believe she violated the constitutional amendment prohibiting abuse of office to obtain a disproportionate benefit and that she misused her position regarding a neighbor’s stop work order from the County on the construction of a neighbor’s dock.
In a complaint filed against Monroe County Planning Commissioner, Joseph Scarpelli, the Commission found no probable cause to believe Mr. Scarpelli accepted a thing of value that he knew or should have known was given to influence him when his spouse accepted donations to her dance studio to be used towards studio events.
The Commission considered a complaint filed against Union County Commissioner, Malcolm “Mac” Johns, finding no probable cause allegations that he violated three ethics laws. The allegations were: that he was doing business with his agency because his automotive repair company serviced Suwanee River Economic Council vehicles during his service on the Florida Commission for the Transportation Disadvantage Board; that he had a conflicting employment relationship that created a continuing conflict of interest because of the repair and servicing of agency vehicles; and that he misused his position when he helped to get a County signature on a “Letter of Authorization” for permitting that allowed a donated septic system at the Union County Riding Club, which is property owned by the County.
The Commission rejected the recommendation of its advocate and found no probable cause on allegations that Hillsborough County School Board Member, Karen Perez, accepted a dining experience from a principal of a lobbyist that would be a prohibited gift valued at more than $100 or that she failed to disclose the event as a gift that exceeded $100 in value. No probable cause to believe Ms. Perez accepted a trip to Cuba from a principal of a lobbyist that would be a prohibited gift valued at more than $100 or that she failed to disclose the receipt of a gift that exceeded $100 in value.
The Commission considered a complaint filed against the State Attorney for the Fourth Judicial Circuit, Melissa Nelson. The Commission rejected the recommendation of its advocate and found no probable cause on five allegations that she violated Florida’s Constitution and financial disclosure laws by failing to properly disclose investments held within her investment accounts on her 2018, 2019, 2020, 2021, and 2022 Form 6, along with her 2018 Form 6X.
Former Polk County Fire Services Battalion Chief, Charlie True, was alleged to have violated the constitutional amendment prohibiting abuse of office to obtain a disproportionate benefit and to have misused his position when he approved hours worked by staff during the emergency response deployment for a hurricane. The Commission found no probable cause on both allegations.
A self-initiated investigation – required by statute – to determine if principal in the Miami-Dade County Public Schools System, Uwezo Frazier, willfully failed to timely file his 2020 Form 1, resulted in a finding of probable cause, but the Commission will take no further action based on the circumstances of the matter.
Ethics Complaints Dismissed for Lacking Legal Sufficiency
The Commission also reviewed and dismissed thirty-four (34) 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 meeting the Commission dismissed complaints filed against the following public servants due to a lack of legal sufficiency: JOHN STANLEY, Industrial Pretreatment Coordinator for the City of St. Petersburg Environmental Compliance Division; BRENDA FORMAN, 17th Judicial Circuit Clerk of the Courts; JACKIE RAILEY, Coconut Creek Vice Mayor; MARK BOGEN, Broward County Commissioner; ERIC LONGSHORE, Sebring Building Official; JARED F. MILLER, Wakulla County Sheriff; JACQUELINE “JACK” PORTER, Tallahassee City Commission; six complaints against ZANE TEETERS, JR, Astatula Town Council Member; DEBORAH FIGGS-SANDERS, St. Petersburg City Councilmember; JOHN F. MARTIN, Nassau County Commissioner; BRIAN D. HERRMANN, Crystal River Planning and Development Services Director; JEFF KINNARD, Citrus County Commissioner; JC CHARLETON, Citrus County Department of Code Enforcement Supervisor; CODY MAGUIRE, Citrus County Department of Code Enforcement Officer; HOPE BAIRD, Citrus County Department of Code Enforcement Officer; ELIZABETH GARCIA-BECKFORD, North Lauderdale City Clerk; MICHAEL SARGIS, North Lauderdale City Manager; ORITA ISSARTEL, Astatula Town Council Member; JEANNE QURIOS, Astatula Town Council Member; STEPHEN CROSS, Astatula Vice Mayor; GRAHAM WELLS, Astatula Town Clerk; JANETTE MARTINEZ, Kissimmee City Commissioner; EDWARD GUBALA, write-in Candidate for Collier County Supervisor of Elections; ERIN FORTNER, Putnam County Planning Board Member; TONY ANDERSON, Walton County Commissioner; KAREN CHASEZ, DeBary Mayor; PATTI MONHOLLEN, DeBary Neighborhood Improvement (Code Enforcement) Officer; JAMES SATCHER, Manatee County Supervisor of Elections; and MATTHEW CALDWELL, Lee County Property Appraiser.
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