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 Petition for Injunction against renovation of a new Sheriff’s Operation Dismissed with prejudice and award of Ch. 57 Center Seventh Judicial fees. Circuit Collateral Proceeding: 12 felony count indictment of former Supervisor Pending Trial of Elections State Attorney Two sworn complaints of illegal polling under Sunshine Law Dismissed after investigation. 3 dismissed for legal insufficiency. Eleven Complaints, mostly centering around the 2014 Election Cycle, 3 dismissed for no probable cause. alleging the County Commission attempted to use the Canvassing 2 settled for $250 each for minor violations of Elections Board as a vehicle to influence the outcome of the elections. Also campaign ad disclaimer language. Commission allegations of Sunshine Law violations. Later rounds of complaints 3 complaints filed in March 2016, identical in allege the County improperly handled the earlier complaints. content but naming different respondents, remain pending. Ten complaints. Some involve the County’s decision to purchase and 3 dismissed for legal insufficiency. renovate property into a new Sheriff’s Operation Center. Many are 5 dismissed for lack of probable cause. similar or identical to the Elections Commission complaints and allege Commission on 1 settled for not disclosing “business the County attempted to use the Canvassing Board as a vehicle to associate” relationship on a vote for a real Ethics influence the outcome of the elections, as well as allegations of estate transaction. Sunshine Law violations. Later complaints also allege that the County 1 filed in June 2015 remains pending. improperly handled earlier complaints. Two complaints alleging the County Attorney had conflict of interest when serving as counsel to the County Canvassing Board and provided Florida Bar Both dismissed for no probable cause. improper advice to and exerted undue influence upon the Canvassing Board. Also allegations of improperly handling earlier complaints.

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 (1 st 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 official 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 of 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.