sunEthics
Covering legal ethics, judicial ethics, bar admissions in Florida, Tennessee, and nationally. See our Subject Index to past postings.
Florida Public Official Ethics - PUBLIC OFFICIALS and LAWYERS
Because Commission on Ethics is only entity with constitutional authority to investigate financial disclosure complaints against public officials, First DCA dismisses circuit court suit against governor. [Added 1/3/19]
Hinkle filed complaints with the Florida Commission on Ethics alleging that Governor Scott’s annual financial disclosure filings were inadequate. The Commission dismissed those complaints as legally insufficient. Hinkle then filed a circuit court complaint against the governor. The governor moved to dismiss on the ground that “only the Commission has jurisdiction to review complaints involving financial disclosures under article II, section 8(f) of the Florida Constitution.” After the circuit court denied the motion to dismiss, the governor petitioned the First DCA for a writ of prohibition.
The First DCA granted the petition to preclude the circuit court from taking any further action other than dismissing the complaint. “[W]e conclude that Florida law assigns exclusive jurisdiction to the Commission to review ‘all’ complaints, including Mr. Hinkle’s complaint. ‘[A]ll complaints,’ in article II, section 8(f), means all complaints. Cf. City of Clearwater v. BayEsplanade.com, LLC, 251 So.3d 249, 255 (Fla. 2d DCA 2018), reh’g denied (Aug. 21, 2018) (holding that ‘all lands’ means ‘all lands’). When the Florida Constitution prescribes the manner of doing something, doing it in a different manner is prohibited.” (Emphasis in original; citations omitted.) Scott v. Hinkle, __ So.3d __ (Fla. 1st DCA, No. 1D18-966, 11/20/2018), 2018 WL 6253291.
First DCA affirms Commission on Ethics ruling that long-time contract city attorney violated one provision of the Ethics Code, but reverses as to second violation. [Added 4/3/18]
City Attorney served for more than 13 years as City’s attorney pursuant to contracts between City and City Attorney’s law firms. City chose to replace him with an in-house counsel. Not long before the end of his contract, City Attorney “drafted and presented ordinances to the city commission to create the positions of Zoning Hearing Officer and Code Enforcement Special Magistrate. [He] then successfully persuaded the city commission to appoint him to these positions without considering anyone else because, as he told the city commission, he was ‘uniquely qualified’ for the positions and the appointments had to be made immediately.”
Complaints were filed with the Florida Commission on Ethics. Ultimately the Commission found that City Attorney had violated 2 provisions of the Florida Code of Ethics for Public Officials and Employees (F.S. 112.311 et seq.). On appeal, the First DCA affirmed the find of one violation but reversed the other.
City Attorney violated F.S. 112.313(6), which provides in pertinent part: “No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position . . . to secure a special privilege, benefit, or exemption for himself, herself, or others.” City Attorney argued that he had not acted “corruptly.” The appeals court disagreed, concluding that competent, substantial evidence supported the finding that City Attorney violated this provision. “Corruptly” means acting with wrongful intent for the purpose of gaining a benefit inconsistent with the official’s public duties. City Attorney “held a position of great influence with the city commission as the long-serving city attorney and that around the same time he lost his long-time position as city attorney, he persuaded the city commission to create and appoint him to the new positions of Zoning Hearing Officer and Code Enforcement Special Magistrate. Robinson did not merely suggest that he should be considered for the two positions, but rather he wielded substantial influence over the drafting of the ordinances creating the positions; he advised on the qualifications necessary for each position; and he then offered his services as the best qualified person without providing any option other than to appoint him immediately.” In past matters involving similar circumstances, City Attorney had always advised City to hire outside counsel. He did not do so in this instance, and the First DCA viewed this as establishing that City Attorney “knew or should have known that his actions were wrong and unethical.”
City Attorney, however, was not guilty of violating F.S. 112.313(16)(c), which provides: “No local government attorney or law firm in which the local government attorney is a member, partner, or employee shall represent a private individual or entity before the unit of local government to which the local government attorney provides legal services. A local government attorney whose contract with the unit of local government does not include provisions that authorize or mandate the use of the law firm of the local government attorney to complete legal services for the unit of local government shall not recommend or otherwise refer legal work to that attorney’s law firm to be completed for the unit of local government.” (Emphasis added.)
The term “represent” is defined under the Ethics Code to mean “actual physical attendance on behalf of a client in an agency proceeding . . .” F.S. 112.312(22). The appeals court concluded that the term “client” did not include City’s Attorney’s advocacy on behalf of himself in seeking the position in question. To conclude otherwise would run contrary to publish Commission advisory opinions (e.g., Commission on Ethics Opinion 17-18). It would also mean that the first sentence of F.S. 112.313(16)(c) would prohibit conduct specifically authorized by the second sentence; such an interpretation would violated statutory construction principles.
The First DCA remanded for reconsideration of the penalty to be assessed. Robinson v. Commission on Ethics, __ So.3d __ (Fla. 1st DCA, No. 1D17-2187, 3/29/2018), 2018 WL 1528504.
Knowingly false allegations in a complaint to the Commission on Ethics do not support a fee award for the prevailing public official unless they were “material” to a purported ethics violation. [Added 1/5/17]
A county attorney and a county commissioner were to targets of complaints filed with the Commission on Ethics. The Commission concluded that neither complaint established grounds for an ethics violation and dismissed them. The 2 public officials of the complaints sought awards of attorney’s fees against the complainant under F.S. 112.317(7). The Commission denied the fee requests on the basis that the allegedly false allegations in the complaint were not “material” to an ethics violation as required by the statute. “Stated differently, even if knowingly false allegations were maliciously made to injure Hadeed and McLaughlin, they were not ‘material’ to any purported ethics violation.” Only 3 of the allegations in the hundreds of pages of the complaints were material to possible ethics violations, and all 3 of them were not false. The 2 officials appealed.
The First DCA affirmed, pointing out that “there are no false allegations of fact in the complaints that are material to a violation of the Code to support a request for costs and fees” (emphasis in original). Noting that this result may “seem odd,” the court explained: “Hundreds of pages of inflammatory language in ethics complaints are directed at public officials, who prevail on the merits, but they can’t recover costs or fees against their tormentors? The answer is that the statute is narrowly-drawn and allows recovery only in very limited situations; it doesn’t permit recovery where knowingly false allegations are maliciously made to injure a public official’s reputation on matters immaterial to an ethics violation, at least in this context” (emphasis in original). Hadeed v. Florida Comm’n on Ethics, __ So.3d __ (Fla. 1st DCA, Nos. 1D16-724, 1D16-725, 12/12/2016), 2016 WL 7190613
First DCA rules that mandamus lies to compel Florida Ethics Commission to process complaint against a state attorney’s office. [Added 7/12/13] -- Young v. Lamar, 115 So.3d 1132 (Fla. 1st DCA 7/9/2013).
Mayoral candidate who holds county commission seat is considered “public servant” for purposes applying official misconduct statute to mayor’s race. [Added 5/6/13] -- Gonot v. State, 112 So.3d 679 (Fla. 4th DCA 5/1/2013).
Law firm in which county commission candidate is a partner may continue as special counsel of city within county if candidate is elected, per Florida Commission on Ethics. [Added 11/5/12] -- Florida Commission on Ethics Opinion CEO 12-21.
Former public employee’s “no contest” plea is “conviction” for purposes of forfeiture of state retirement benefits. [Added 10/23/12] -- Brock v. Fla. Dept. of Management Services, 98 So.3d 771 (Fla. 4th DCA 2012).
Law requiring counties to pay overhead costs for Offices of Criminal Conflict and Civil Regional Counsel declared unconstitutional. [Added 9/26/11] -- Lewis v. Leon County, 73 So.3d 151 (Fla. 2011).
Under Florida ethics laws no conflict exists when law firm in which county commissioner's son-in-law is non-equity shareholder represents clients before commission. [Added 6/211] -- Florida Commission on Ethics Opinion CEO 11-04.
Lawyer who is state representative may continue as expert witness for law firm representing Department of Financial Services. [Added 4/13/11] -- Florida Commission on Ethics Opinion CEO 11-03.
Public officials do not become fact witnesses subject to deposition as a result of investigating a matter before them. [Added 3/23/11] -- City of Key West v. Havlicek, 57 So.3d 900 (Fla. 3d DCA 2011).
Administrative order ruling that state senator violated ethics laws reversed by Fifth DCA. [Added 3/2/11] -- Siplin v. Commission on Ethics, 59 So.3d 150 (Fla. 5th DCA 2011).
Florida Commission on Ethics opines on lawyer's service on city economic development commission and his firm's representation of clients who deal with commission. [Added 1/3/11] -- Florida Commission on Ethics Opinion CEO 10-24.
Confidentiality requirements in Law Enforcement Officers' Bill of Rights apply whenever officer faces adverse job action. [Added 11/27/10] -- Fraternal Order of Police v. Rutherford, 51 So.3d 485 (Fla. 1st DCA 2010).
Retired public employee's benefits may be forfeited for crimes occurring while employed, even though not convicted until after retirement. [Added 11/21/10] -- Garay v. Dept. of Management Services, 46 So.3d 1227 (Fla. 1st DCA 2010).
Florida Commission on Ethics publishes opinion addressing ethics law restrictions on Attorney General who leaves office. [Added 11/16/10] -- Florida Commission on Ethics Opinion CEO 10-22.
Passenger Rail Commission member who is in law firm has no conflict of interest if law firm represents clients seeking to do business with FDOT. [Added 9/30/10] -- Florida Commission on Ethics Opinion CEO 10-20.
Under state ethics laws, former assistant state attorney may represent clients against state attorney's office. [Added 6/8/10] -- Florida Commission on Ethics Opinion CEO 10-14.
Commission on Ethics discusses how 2 year post-public-employment representation restriction applies to former SES senior attorney of Agency for Workforce Innovation. [Added 6/8/10] -- Florida Commission on Ethics CEO 10-13.
Former government official's conviction of conspiracy to commit mail fraud supports forfeiture of retirement benefits under public ethics laws. [Added 4/20/10] -- Jenne v. Fla. Dept. of Management Services, 36 So.3d 738 (Fla. 1st DCA 2010).
Lawyer who formerly was appointed county commissioner is not subject to 2-year post-officeholding representation restriction of F.S. 112.313(14). [Added 9/30/09] -- Florida Commission on Ethics Opinion 2009-16.
Lawyer who is school board member would not have conflict prohibiting him from voting to select lawyer in member's former law firm as school board attorney. [Added 8/7/09] -- Florida Commission on Ethics Opinion 09-12.
Prohibited conflict exists if other lawyers in county commissioner's law firm represent clients before the commission. [Added 8/7/09] -- Florida Commission on Ethics Opinion 09-10.
Public official who defended ethics complaint may recover attorney's fees incurred in proving entitlement to and amount of fees. [Added 4/20/09] -- Milanick v. Osborne, 6 So.3d 729 (Fla. 5th DCA2009) (on motion for clarification).
Law authorizing Legislature to discipline lobbyists does not violate separation of powers doctrine or infringe on Supreme Court's authority to regulate lawyers. [Added 3/20/2009] -- Florida Ass'n of Professional Lobbyists, Inc. v. Division of Legislative Information Services, 7 So.3d 511 (Fla. 2009).
Lawyer who acts as city attorney because his firm was retained as independent contractor must comply with financial disclosure law. [Added 12/17/08] -- Florida Commission on Ethics Opinion 08-27.
Florida Commission on Ethics addresses conflict issues presented by lawyer who is employee/general counsel of county health facilities authority and principal in private law firm. [Added 8/6/08] -- Florida Commission on Ethics Opinion 08-15.
Florida Commission on Ethics renders opinion on possible voting conflict of non-lawyer law firm member who acts as a lobbyist. [Added 6/25/08] -- Florida Commission on Ethics Opinion 08-13.
Financial disclosure laws apply to Regional Counsel (but not assistant counsel) in new Criminal Conflict and Civil Regional Counsel offices. [Added 4/30/08] -- Florida Commission on Ethics Opinion 08-9.
Public official falsely accused of ethics law violations not required to prove "actual malice" to recover fees and costs from accusers. [Added 12/5/07] -- Brown v. Florida Comm'n on Ethics, 969 So.2d 553 (Fla. 1st DCA 2007) (on rehearing).
Florida Commission on Ethics advises that conflict of interest under Florida ethics laws exists when member of city commissioner's law firm represents clients before Commission, but not before other city Boards. [Added 6/7/07] -- Florida Commission on Ethics Opinion 07-13.
Florida Commission on Ethics advises that law firm can be "lobbying firm" under state ethics law if even one firm lawyer is registered to lobby. [Added 6/7/07] -- Florida Commission on Ethics Opinion 07-08.
Florida Commission on Ethics order denying attorney's fees to subject of ethics complaint is reversed by Fifth DCA. [Added 2/21/07] -- Osborne v. Commission on Ethics, 951 So.2d 25 (Fla. 5th DCA 2007).
Florida Commission on Ethics opines whether conflict of interest exists where member of housing authority is partner in law firm that provides legal services to housing authority. [Added 2/21/07] -- Florida Commission on Ethics Opinion 07-1.
Former Brevard County Commission may not lobby county staff nor attend county commission for 2 years after leaving office. [Added 1/8/07] -- Florida Commission on Ethics Opinion CEO 06-22.
Bar Board of Governors revised ethics opinion to broaden ability of county attorney to represent individual county commission members charged by Florida Commission on Ethics. Florida Ethics Opinion 77-30 (Reconsideration).
Florida Commission on Ethics opines that lawyer formerly employed by state agency cannot represent clients against agency for 2 years after leaving its employ. Florida Commission on Ethics Opinion 06-1.
Appeals court reverses Ethics Commission order finding that lawyer/public official violated state ethics laws on conflict of interest. Fanizza v. State of Florida, Commission on Ethics, 927 So.2d 23 (Fla. 4th DCA 2006).
State ethics law does not require recusal of or disclosure by lawyer who, as city commissioner, would vote on ordinance relating to private client's area of business. Florida Commission on Ethics Opinion 05-15.