Coming Soon to a Political Theater Near You Death By a 1,000 Cuts - - PowerPoint PPT Presentation

Coming Soon to a Political Theater Near You – Death By a 1,000 Cuts (When Ethics, Elections, and Other Complaints Just Keep Coming)

Florida Association of County Attorneys 2016 Continuing Legal Education Program

Al Hadeed, County Attorney Flagler County, FL ahadeed@flaglercounty.org Mark Herron Messer Caparello, P.A. mherron@lawfla.com

“‘Derelict’ Sheriff! Call In a Judge! Accuse Palm Coast of Larceny! Elections Supervisor Weeks Goes Unhinged”

STATUS OF TWENTY–SIX ETHICS RELATED CASES SINCE 2014

Forum Summary Disposition

Seventh Judicial Circuit

Petition for Injunction against renovation of a new Sheriff’s Operation Center Dismissed with prejudice and award of Ch. 57 fees. Collateral Proceeding: 12 felony count indictment of former Supervisor

• f Elections

Pending Trial

State Attorney

Two sworn complaints of illegal polling under Sunshine Law Dismissed after investigation.

Elections Commission

Eleven Complaints, mostly centering around the 2014 Election Cycle, alleging the County Commission attempted to use the Canvassing Board as a vehicle to influence the outcome of the elections. Also allegations of Sunshine Law violations. Later rounds of complaints allege the County improperly handled the earlier complaints. 3 dismissed for legal insufficiency. 3 dismissed for no probable cause. 2 settled for $250 each for minor violations of campaign ad disclaimer language. 3 complaints filed in March 2016, identical in content but naming different respondents, remain pending.

Commission on Ethics

Ten complaints. Some involve the County’s decision to purchase and renovate property into a new Sheriff’s Operation Center. Many are similar or identical to the Elections Commission complaints and allege the County attempted to use the Canvassing Board as a vehicle to influence the outcome of the elections, as well as allegations of Sunshine Law violations. Later complaints also allege that the County improperly handled earlier complaints. 3 dismissed for legal insufficiency. 5 dismissed for lack of probable cause. 1 settled for not disclosing “business associate” relationship on a vote for a real estate transaction. 1 filed in June 2015 remains pending.

Florida Bar

Two complaints alleging the County Attorney had conflict of interest when serving as counsel to the County Canvassing Board and provided improper advice to and exerted undue influence upon the Canvassing

• Board. Also allegations of improperly handling earlier complaints.

Both dismissed for no probable cause.

List of Attachments

Attachment Page

• Jurisdictional Statutes of Ethics Commission per Ch. 112……………………….……….. …….. 1
• 2014 Ethics Complaint against County Commissioner…………………………………….. …….. 11
• E & O – Public Officials Liability Coverage Sample Policies.......................................... 19
• Thornber v. City of Ft. Walton Beach, 598 So. 2d 914 (Fla. 1990)
• Findings for Representation……………………………………………………………..…….…. 27
• Fla. Bar Professional Ethics Opinion 77-30
• Relating to Representation Before Ethics Commission………………………………

32

• Sample Reservation of Rights Letter……………………………………………………………………….. 34
• Ethics Commission Staff Report of Investigation on 2014 Complaint………………………. 35
• Advocate’s Recommendation of 2014 Ethics Complaint (Attorney General’s)
• As to Probable Cause………………………………………………………………………………… 44
• Commission on Ethics Public Report
• Dismissing 2014 Complaint for Lack of Probable………………………………………… 50
• Petition for Costs and Attorney’s Fees for 2014 Ethics Complaint……………………………. 51
• Brown v. State of Florida Commission on Ethics, 969 So. 2d 553 (1st DCA 2007)
• Attorney Fee Standards for Ethics Complaints……………………………………………. 64

Representation for Claims Arising From Exercise of Official Duties

• A. Cost of Defense – The Government’s Obligation to Provide Legal Representation
• Public officials are entitled to representation at public expense if the litigation: (1)

arises out of or in connection with the performance of their official duties; and (2) serves a public purpose. Thornber v. City of Ft. Walton Beach (Fla. 1990) (opinion attached at page 27). Accord AGO 94-11.

• The Attorney General has consistently concluded that the governing body must

make express findings on the Thornber rule in order for there to be publicly funded legal representation. See, e.g., AGO 91-58. But cf. C. Leen, “The Ethical and Effective Representation of Government Employees by Government Attorneys,” 45 Stetson L. Rev. 397, 407-410 (Spring 2016) (recommending internal policy for determining representation for non-elected officials).

Representation for Claims Arising From Exercise of Official Duties

• A. Cost of Defense – The Government’s Obligation to Provide Legal Representation
• The fact that the public officials may gain or have personal interests in the action

challenged by the complaint or in the outcome of the complaint proceedings or by the offer of legal representation is immaterial. For example, defending or challenging a recall petition that keeps the official in office does not disqualify the

• fficial from the benefits of Thornber.
• The right of an official to legal representation at public expense is based in

common law, giving it a more enduring status, unless and until a later statute unequivocally states that it changes the common law or is so repugnant to the common law that the two cannot coexist.

Representation for Claims Arising From Exercise of Official Duties

• A. Cost of Defense – The Government’s Obligation to Provide Legal Representation
• Thornber findings provide a safe harbor for the local government, its officials and its

counsel.

• This is especially true if done with transparency at an open meeting at which the

commission is briefed, on the record, about Thornber and is given the choice of finding that the complaint is within or outside the governmental duty to provide legal representation per Thornber, and there is no recommendation from the administrator or counsel as to the findings to be adopted. This approach minimizes potentially new charges

• f conflict of interest, of alleged “conspiracies,” and of unlawful personal benefit.
• “It is not inconsistent with the proper performance of public duty or wrongful (it is not

“corrupt”) for a county attorney to bring the issue of publicly-provided defense, and related matters, to the attention of the county’s governing board and to seek the board’s

• input. Indeed, such conduct would seem to be prudent and to serve a public purpose,

regardless of whether a benefit also might accrue to the attorney or board members.” In re Albert “Al” Hadeed, COE 15-134, Public Rpt. & Order Dismissing Compl, at §5, pp. 2-3 (Oct. 28, 2015).

Representation for Claims Arising From Exercise of Official Duties

B. Representational Choices if Defending Complaint Within Thornber

• Assessing Conflict

– Local government attorney must assess whether there is a conflict in representing charged commissioner or other county official. – “Whether a county attorney may represent an individual commissioner in a particular ethics complaint will depend on the circumstances of the individual situation, and such an analysis must occur on a case by case basis.” Fla. Bar Ethics Op. 77-30 (Reconsideration) (Sept. 29, 2006), opinion attached at p. 32. – Any conflict may be waived, but it must be in writing or on the public

• record. Id. See also Sample Reservation of Rights Letter attached at p. 34.

When in doubt, put in writing and describe it as a potential conflict being waived.

Representation for Claims Arising From Exercise of Official Duties

• B. Representational Choices if Defending Complaint Within Thornber
• Insurance
• Applicable insurance might be E & O insurance, Public Officials Liability,

Extra Contractual Legal Expense Coverage, or Non-Monetary Claims Coverage.

• In Florida, the major providers to local government are Preferred

Governmental Insurance Trust (PGIT), the Florida Association of Counties Trust (FACT) and the League of Cities’ Florida Municipal Insurance Trust (FMIT). Policy excerpts attached at pp. 19-26.

• PGIT – coverage begins when complaint served, defense costs have an

annual aggregate limit of $100,000.

Representation for Claims Arising From Exercise of Official Duties

• B. Representational Choices if Defending Complaint Within Thornber
• FACT and FMIT – have the identical coverage terms, reimbursement for 50%
• f legal fees up to a maximum of $25,000 per case, up to annual aggregate

limit of $100,000, subject to the official not being found in violation and not having entered into a settlement agreement whereby the official is sanctioned in any form. Qualifying legal expenses do not begin until Ethics Commission or local ethics board issues an initial determination of investigative jurisdiction and order to investigate.

• Other carriers which include coverage for ethics type complaints in stand-

alone policies include AIG, ACE (now includes Chubb), and Western World. These policies typically have provisions that require more self insurance by the local government. Coverage is not initiated until defense costs exceed a certain level, for example, $25,000.

• The terms of insurance coverage vary. Therefore review thoroughly.

Representation for Claims Arising From Exercise of Official Duties

• B. Representational Choices if Defending Complaint Within Thornber
• Thornber Implications with Insurance Coverage

– Insurer will typically issue a coverage letter in which it will include its determination that the complaint falls within an official duties situation. This determination bolsters findings made by the county commission under Thornber. Having insurance coverage also provides a non-legal benefit in communicating to the public that there is a defensible claim that is being handled without the direct use of ad valorem tax dollars. – Additionally, as applicable, insurers typically include a reservation of rights based on any new facts or actions that come to light, giving more public legitimacy to invoking insurance coverage. – Be forewarned, depending upon the complainants and their attitude, they may possibly make public records requests to the insurer.

Representation for Claims Arising From Exercise of Official Duties

B. Representational Choices if Defending Complaint Within Thornber

• Thornber Implications with Insurance Coverage

– Recommend including the authority of the county administrator or risk manager to submit an insurance claim as part of Thornber discussion and commission motion. – Insurance coverage for such claims is authorized by state law. §112.08, Fla. Stat. – County commissioners and county attorney are not forbidden from considering or acting on insurance coverage matters or the provision of a public defense even though there is an incidental personal benefit to them. In re Albert “Al” Hadeed, COE 15-134, Public Rpt. & Order Dismissing Compl, at p. 3 (Oct. 28, 2015). – Out of an abundance of caution, a commissioner should file a Form 8B if voting on whether a claim against that commissioner should be forwarded to the insurer for coverage to ward off any new complaints. The commissioner also should refrain from discussing the issue at the county commission meeting at which coverage is

• discussed. What if all commissioners are named? And the county attorney is

named?

Representation for Claims Arising From Exercise of Official Duties

B. Representational Choices if Defending Complaint Within Thornber

• Retaining Outside Counsel

– Whether paid by the county or privately by the individual commissioner or other public official, Thornber standard applies to justify payment or reimbursement for

• utside counsel.

– Whether publicly or privately retained, the attorney should have experience with Ethics Commission complaints. Such experience enables the attorney to resist or redirect visceral reactions of a commissioner to a complaint or reactions to some step in the process.

Confidentiality – How far does it extend; What are its practical implications?

• As to an ethics or elections complaint – Confidential within the investigating agency, but

complainant and respondent are free to waive at any time they wish. The respondent public official can waive as to certain individuals without waiving to the general public, for example, providing the complaint to the local government’s attorney, administrator, risk management department, or government’s insurer. Be careful that there is not a waiver of the confidentiality of the proceedings, as distinguished from a limited waiver for the complaint document.

• By agency rule, the proceedings become public at certain stages and, in any event, the

entire file of the investigating agency becomes public at the conclusion of the investigating agency’s case.

• Be concerned about what is in that record, and especially any misstatement of facts

made by complainant or overlooked or misstated by agency investigation, or even misstated by the public official if the mistaken or un-rebutted factual assertion can be used offensively against the public official or the local government or otherwise may be

• problematic. Don’t nitpick but be tactical and respectful of the investigating agency’s
• process. Think of it as supplementing the record.

Confidentiality – How far does it extend; What are its practical implications?

• Protecting the confidentiality of the investigating agency’s proceedings is

important to the local government and its officials, whether charged with a violation or not. This confidentiality cannot be waived by any party except the respondent prior to the time the proceedings automatically become public by rule.

• Discussing the Thornber findings does not waive the confidentiality of the

complaint or the proceedings provided the complaints are not made a part of the public record before the governing body.

• Since the case might be a high profile one, it is important to protect the

confidentiality of the attorney’s litigation work product. See §119.071(1)(d), Fla. Stat. And note that preliminary trial preparation notes for the personal use of the attorney are not public records within the definitions of Florida Statutes, Chapter 119.

Most Important Strategies Not Found in Statutes, Rules, and Cases

Tactics of Complainants

• Public Records Requests Made
• f Different Units of

Government

• Social Media, Letters to Editor,

Comment at Public Meetings

• Individually Named

Respondent, Served at Home Address

• Submission of Same

Allegations by Multiple Complainants to Multiple Agencies

Counter Tactics of Govt. Atty.

• Retain Experienced Atty.
• Avoidance and Mitigation
• Use of Official Records to

Rebut

• Supplement the Record

“PRN”

• Notification of Collateral

Proceedings

• Comparison of Multiple

Complaints

• Press Releases & Public

Exposure

Use of Official Records

Audience on Multiple Levels

• Commission on

Ethics, Elections Commission, etc.

• Elected Officials
• Public
• Media
• Appellate Court

Coming Soon to a Political Theater Near You….