STUFF YOU MIGHT NOT KNOW Little Local Governments Smallest - - PowerPoint PPT Presentation
STUFF YOU MIGHT NOT KNOW Little Local Governments Smallest incorporated city (by population): Lake Buena Vista (home of Walt Disney World Resort), population of 10 (+ / -) Smallest incorporated city (by area): Village of Lazy Lake (in
Smallest incorporated city (by population):
Disney World Resort), population of 10 (+ / -) Smallest incorporated city (by area):
County), 15 acres & 24 people
Population 500 (+ / -) & a speed trap State audit found numerous violations, mayor resigned & was jailed, all three full time employees resigned (city clerk, chief of police & maintenance operator) Legislators considered dissolving the City, but decided against it
Municipalities may be established or abolished pursuant to general or special law, provided that when a municipality is abolished, “provision shall be made for the protection of its creditors.” Art. VIII, s. 2(a), Fla. Const.
Municipal corporation may be dissolved by a special act of the Legislature, or by an ordinance of the governing body
165.051(1), Fla. Stat.
Dissolution of a municipality must also meet three conditions:
able” to provide necessary services to the area
indebtedness and vested rights of employees of the municipality § 165.061(3), Fla. Stat.
At dissolution, the title to all property owned by the preexisting municipality is transferred to the county County assumes all indebtedness of the preexisting municipality, unless otherwise provided for in a dissolution plan To pay any assumed indebtedness from the dissolved municipality, the county is authorized to levy and collect ad valorem taxes from the area via a special district created for such a purpose § 165.071(3), Fla. Stat.
Cedar Grove, in Bay County (dissolved in 2008) Golfview, in Palm Beach County near the Palm Beach International Airport (dissolved in 1998)
Public nuisances are “nuisances that tend to annoy the community, injure the health of the citizens in general, or corrupt the public morals.” § 823.01, Fla. Stat. (2013) Section 823.05(1), Florida Statutes (2013), states that: Whoever shall erect, establish, continue, or maintain, own or lease any building, booth, tent or place which tends to annoy the community or injure the health of the community, or become manifestly injurious to the morals or manners of the people as described in s. 823.01… shall be deemed guilty of maintaining a nuisance, and the building, erection, place, tent or booth and the furniture, fixtures, and contents are declared a nuisance. All such places or persons shall be abated or enjoined as provided in ss. 60.05 and 60.06.
Attorney General, state attorney, city attorney, county attorney, or any citizen of the county may sue in the name of the state to enjoin the nuisance, the person or persons maintaining the nuisance, and the owner or agent of the building
The standard for the existence of a public nuisance is relatively low “Anything which annoys or disturbs one in the free use, possession, or enjoyment of his property or which renders its ordinary use or
become a nuisance and may be restrained.” Mercer v. Keynton, 163 So. 411, 413-14 (Fla. 1935)
“Whoever is concerned in causing or making a bonfire within 10 rods of any house or building shall be guilty
degree...” § 823.02, Fla. Stat. RODS??? Lineal measure of 5-1/ 2 yards or 16-1/ 2 feet Thus, no bonfires within 55 yards or 165 feet of a house or building
If any officer, after the expiration of the time for which she or he may have been appointed or elected, or in case of death, her or his executors and administrators, or the person in possession thereof, shall willfully and unlawfully withhold or detain from her
writings appertaining and belonging to her or his office, or mutilate, destroy, take away, or otherwise prevent the complete possession by her or his successors of said records, documents, papers, or other writings, she or he shall be guilty of a misdemeanor of the second degree… § 839.14, Fla. Stat.
At the expiration of a term in office, whoever has custody of any public records kept or received by the officer in the transaction
successor, or if there is no successor, then to the Florida Division of Library and Information Services Upon the request of the successor, any person who has the records must deliver the records to the lawful custodian within 10 days § 119.021(4)(a), Fla. Stat.
Any public servant who, in contemplation of official action by herself or himself or by a governmental unit with which the public servant is associated, or in reliance on information to which she or he has access in her or his official capacity and which has not been made public:
enterprise, or gains any pecuniary or other benefit which may be affected by such information or official action, or
action, or
shall be guilty of a first degree misdemeanor
A public servant who discloses or uses confidential criminal justice information with the intent to obstruct, impede, or prevent a criminal investigation or a criminal prosecution, when such information is not available to the general public and is gained by reason of the public servant’s official position, commits a third degree felony. § 838.21, Fla. Stat. DISCLOSURE OR USE OF CERTAIN INFORMATION.—A current or former public officer, employee of an agency, or local government attorney may not disclose or use information not available to members of the general public and gained by reason of his or her official position, except for information relating exclusively to governmental practices, for her or her personal gain or benefit or for the personal gain or benefit of any other person or business entity. § 112.313, Fla. Stat.
Question was whether a public officer or employee who participated in a closed meeting on labor negotiations could disclose the information that was obtained during the closed meeting. Although Section 447.605, Florida Statutes (relating to closed labor negotiation meetings) did not specifically restrict the dissemination of information discussed at the closed labor negotiations, the Florida Attorney General did note that there were other laws [ §§ 839.26 and 112.313(8)] that did prohibit the disclosure of such information under certain circumstances.
Newly elected or appointed public officers must not assume to perform any of the duties of public office before “qualification” according to law. Doing so would be a second degree
Florida Supreme Court determined that § 839.18 applied to a person who performed the duties of deputy sheriff before being qualified according to law. Person had been appointed as a deputy, had taken the required oath, and had executed a bond, but board of county commissioners had not approved the bond. Therefore, the person was not yet qualified to perform the duties of deputy sheriff. Stinson v. State, 80 So. 506 (Fla. 1918).
Governing bodies are required to purchase voting equipment which has a combined retail value of more than $35,000 by means of competitive sealed bids or competitive sealed proposals from at least two bidders. Exceptions are emergency situations, or if there is only a single source provider of the equipment. If exceptions exist, then the chairman must certify this to the Division of Elections. § 101.293, Fla. Stat. Any board member who purchases or sells voting equipment in violation
equipment in violation of same, is guilty of a first degree misdemeanor and shall be subject to suspension from office on the grounds of
Division of Elections Rule 1S-2.004, F.A.C., provides uniform policies, procedures and best practices for the purchase, sale, and use of voting equipment. Division also maintains on its web site a list of vendors who sell certified voting equipment and systems. (There are two certified vendors at the present time.) Florida Supreme Court held that the Florida Election Code does not impliedly preempt the field of election law, as certain responsibilities and powers have been delegated to the local authorities, including the choice of voting systems, so long as the voting system has been approved by the Department of State. Sarasota Alliance For Fair Elections, Inc. v. Browning, 28 So.3d 880 (Fla. 2010).
All persons who are employed by or on the payroll of the state, county, city, school board, etc., are required to take an oath of loyalty in the following form: I, _________ , a citizen of the State of Florida and of the United States
a recipient of public funds as such employee or officer, do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida. Applies to all employees & elected officers of the state, including the Governor and constitutional officers, as well as employees & elected
educational system. §§ 876.05(1), 876.09(1), F.S.
Refusing to take the oath of loyalty shall result in immediate discharge from employment. § 876.06, Fla. Stat. Any governing authority or person who knowingly or carelessly permits an employee to continue in employment after failing to take the oath is guilty of a second degree misdemeanor. § 876.08, Fla. Stat. Anyone who executes the oath, and is subsequently proved to be guilty of making a false statement in the oath, shall be guilty
Florida Attorney General opined that the phrase “citizen of the State of Florida and of the United States” was intended as a description of the person making the oath and not to limit employment to citizens of Florida or the United States. Purpose of the oath was to ensure the loyalty of the employee to the State and to the United States. The phrase “citizen of the State of Florida and of the United States” in the oath could be modified to accurately describe the person as a citizen of another state and/ or resident alien, as the case may be. See Fla. Atty. Gen. Ops. 84-66, 96-41.
The oath of loyalty must be taken “before any person duly authorized to take acknowledgements of instruments for public record in the state.” § 876.05(1), Fla. Stat. Question: Who are these “duly authorized” persons? Answer: Judge, clerk, or deputy clerk of any court of record within the state (including federal courts in the state), United States commissioner, or any notary public within the state. See § 92.50(1), Fla. Stat.; Fla. Atty. Gen. Op. 82-64.
A vote must be recorded and counted for each state, county or municipal government board member who is present at a board meeting, unless a conflict of interest exists, or appears to exist. § 286.012, Fla. Stat. In the event of a conflict of interest, the board member must not vote, and must also comply with the disclosure requirements of § 112.3143, Fla. Stat. Prior to the vote by the board, the officer should publicly state his or her reasons for abstaining from voting on the matter, and then afterwards file a Memorandum of Voting Conflict (Commission on Ethics Form 8B) with the clerk of the board within 15 days. §112.3143(3)(a), Fla. Stat.
Under Florida law, elected officials have an affirmative duty to vote on all matters before them, and abstaining from a vote is prohibited unless there is or appears to be a conflict of interest. See George v. City of Cocoa, 78 F.3d 494, 496 (11th Cir. 1996). See also Fla. Atty. Gen. Op. 87-17 (1987) (county commissioner may abstain from voting on a measure to avoid creating an appearance of impropriety only where such impropriety amounts to a conflict of interest). Question: What if a board member is in attendance at a board meeting, but happens to be out of chambers during the vote on an issue in which the board member has or appears to have a conflict of interest?
Answer: The Commission on Ethics concluded that a board member would be required to publicly announce the basis of a conflict of interest and file a memorandum of voting conflict, even if the board member was temporarily absent from that portion of the meeting during which the board meeting had a voting conflict. CEO 88-3. The statutory duty to vote “may not be avoided by the ‘temporary’ absence of a member during the vote on a particular matter which comes before the body of which he is a member during a meeting at which he is present.” Fla. Atty. Gen. Op. 074-289.
NO PRIVATE DISCUSSIONS between fellow commissioners about items
foreseeable action Includes persons elected to office but who have not yet taken office Criminal (including jail time) and civil penalties for violating the open meetings law
Restroom Conversation Between Lake Wales Officials
LAKE WALES | Two city commissioners in Lake Wales may have tread over the line drawn by the Sunshine law by talking about a land purchase in a place not accessible to women - a men's restroom in Lake Wales City Hall. A reporter walked in on the discussion Tuesday night in the men's room after the monthly Community Redevelopment Agency board meeting. Mayor Mike Carter and City Commissioner John Paul Rogers were discussing a proposed purchase of property for a city gateway, including a sign announcing Lake Wales. [TheLedger.com]
W.D. CHILDERS, former president
Commission… Convicted by a jury in 2003 of Sunshine Law violations for discussing public business in private with other commissioners Sentenced to 60 days in jail &
Sometimes a motion to temporarily suspend or waive the rules is the best course of action. Question: Can the Chairman second a motion? The answer appears to be yes, at least for small boards (boards that consist of twelve or fewer members), and subject to the rules or customs within the particular board. According to Robert’s, the chairman of a small board can speak in discussion and, subject to rule or custom, usually can make motions.
County commissioners may grant licenses to applicants who wish to establish ferries, toll bridges, mills, dams, and log ditches upon and across county rivers and streams. § 347.01,
County commissioners also have the authority to order and direct the amount that is charged to use a licensed ferry or toll
Meanwhile, the penalty for maintaining an unauthorized ferry is a mere $20 fine. § 347.25, Fla. Stat. (This statute has not been amended in quite some time!)
Section 347.215 was added in 2012 to allow a county to authorize the operation of a ferry by a single party, or by multiple parties under a joint agreement between public and private entities. According to the bill analysis, this was written with the St. Johns River Ferry in mind.
George Island, and has been in operation since 1948 (ferry service to Mayport has officially been in existence since 1894). The ferry is presently operated by the St. Johns River Ferry Commission, which has contracted with a private entity to run the ferry.
clergymen and preachers were exempted from having to pay bridge and ferry tolls.
A log ditch was a canal that was used to move harvested trees to a log mill for processing.
Every ordinance shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title. No ordinance shall be revised or amended by reference to its title
Ordinances to revise or amend shall set out in full the revised or amended section, subsection, or paragraph of a subsection. The enacting clause of every ordinance shall read: “Be It Ordained by the Board of County Commissioners of ____________ County: ” § 125.67, Fla. Stat.
In the case of Save Our County Coalition v. Wittenstein, 351 So. 2d 1112 (Fla. 4th DCA 1977), the proposed ordinance was found to be facially invalid because its subject was not briefly described in the title of the ordinance as required by law. The problem with the ordinance title was that it contained
was not the geographical area to which the ordinance would apply. Accordingly, the proposed ordinance failed to comply with Section 125.67 and was deemed invalid on its face.
Counties are required to maintain a current codification of ordinances and to publish the codification annually. Exceptions to the codification requirements are ordinances concerning the comprehensive plan, development agreements, and development
The ordinances that are exempt from codification must be recorded in a record book and maintained by the clerk of the board. The location of the record book should be noted in any ordinance that adopts or amends the comp plan, development agreement, or development order. § 125.68, Fla. Stat.
In the case First Assembly of God of Naples, Florida, Inc. v. Collier County, Florida, one of the allegations asserted by the church was that it had been denied procedural due process by the county’s failure to codify its zoning laws annually as required by Florida law. Although the U.S. Circuit Court of Appeals noted that the county’s failure to codify its ordinances annually might constitute a violation of Florida law, the federal court found that this type of procedural failure did not rise to the level of a federal Constitution violation. There is no statute that requires municipalities to codify their
record book kept for that purpose and signed by the presiding officer and clerk. See § 166.041(4), Fla. Stat.
“Testimonial” is defined as: “any breakfast, dinner, luncheon, rally, party, reception, or other affair held to honor or raise funds on behalf of any elected public officer” (with the exception of a campaign fundraiser) The organization hosting a testimonial must file a notice of intent to hold a testimonial (Form DS-DE 60), set up a “testimonial account” in a depository, and appoint a treasurer; must also file a report after the testimonial re: disposition of funds After payment of the expenses for the testimonial, any leftover funds must be donated to a charity, returned pro rata to the contributors, or deposited in the general fund of the elected official’s government entity The elected public officer is prohibited from receiving any leftover funds for his or her personal use
A public officer who is suspended from office by the Governor and who subsequently becomes lawfully entitled to resume the duties of office, “shall suffer no loss of salary or
Any compensation which was not paid during the officer’s suspension is to be paid “from the source and in the manner in which the compensation of the office is normally paid.” § 111.05, Fla. Stat.
Supervisor of Elections for Madison County had been charged with 17 counts of neglect of duty and suspended from office by the Governor. Her term of office ended while she was
she was never reinstated. After her term of office had expired, her charges were dismissed and she requested back pay and benefits for the time of her suspension. Attorney General’s Office found that the former official was not statutorily entitled to back salary and benefits, unless the official had been reinstated to office by affirmative action of the Governor, the Senate, or a court. Fla. Atty. Gen. Op. 2013-23.
County judge for Wakulla County sought re-election to office but her
She challenged the validity of several absentee ballots, and almost four years later she was declared the election winner. Question: Did she have a legal right to the compensation that she would have received had she fully served her term of office? Florida Supreme Court said yes. Even though the judge who was
had been paid for his services, the petitioner was the actual winner of the election and was entitled to back pay. Also, she was not required to offset the back pay with earnings she made in private practice while the election results were in dispute.
Whoever, having devised or intending to devise any scheme
means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. (18 U.S.C. § 1343) “Scheme or artifice to defraud” was defined by Congress in 1988 as “a scheme or artifice to deprive another of the intangible right of honest services” (18 U.S.C. § 1346)
Jeffrey K. Skilling, former Enron CEO… Enron was the 7th largest revenue producing company in America, with stock selling at $90 per share, before crashing into bankruptcy in 2001 Skilling was charged with one count of conspiracy to commit honest services wire fraud, & over 25 counts of securities fraud, making false representations to auditors & insider trading He appealed his conviction, arguing the honest services law was unconstitutionally vague…
In Skilling v. United States, 130 S. Ct. 2896 (2010), the U.S. Supreme Court held that § 1346 (mail fraud statute) criminalizes only those schemes that involve bribes or kickbacks Supreme Court found that non-disclosure of a conflict of interest is not a violation of the honest services fraud statute Therefore, honest services fraud statute is not unconstitutionally vague when properly confined to bribery and kickback schemes
In October of 2013, Kwame Kilpatrick, former Mayor of Detroit, was sentenced to 28 years in prison for public corruption Was found guilty of 24 counts of extortion, mail fraud, racketeering, and tax violations Extorted city vendors, rigged bids, took bribes, & defrauded the State & non-profit donors, to enrich himself, friends and family 32 others, including his father, were also convicted
On November 13, 2013, Mayor Manuel Maroño of Sweetwater pleaded guilty to
services wire fraud Mayor admitted that he agreed to help a company obtain federal grant funds to prepare an economic development study for Sweetwater, in exchange for kickback
The company was actually an undercover FBI entity Received a 40-month prison sentence
Miami Lakes Mayor Michael Pizzi was indicted on October 24, 2013,
conspiring to commit extortion Allegedly aided undercover FBI entity in a scheme to obtain federal grant funds, in exchange for kickbacks of $6,750 Has pleaded not guilty Trial set for July 2014
Tony Devaughan Nelson, former chairman of the Jacksonville Port Authority, was found guilty of 36 corruption-related charges, including honest services mail fraud, bribery, money laundering, and lying to the FBI Reportedly solicited & received $143,500 in bribes from a dredging company that had ongoing business with the JPA Sentenced to 40 months in federal prison Appealed, but was unsuccessful
George Brown, former Roadway Lighting Coordinator for Miami-Dade’s Department of Public Works, pleaded guilty to one count of accepting bribes from a lighting contractor in exchange for securing the purchase of $40,000 of the contractor’s products Reportedly received $13,000 in free merchandise (computer equipment, stove, refrigerator, a/ c unit) Sentenced to 30 months in prison &
On January 1, 2014, former Virginia Governor Robert F. (Bob) McDonnell and his wife were indicted on 14 public corruption charges Allegedly participated in a scheme to use the Governor’s official position to obtain over $165,000 in loans & gifts, including cash, golf
clothes, trips, etc., from a businessman in exchange for promoting diet supplements Trial set for July 28, 2014
Orleans, was found guilty in federal court of 20 counts of bribery, wire fraud, and filing false tax returns Allegedly accepted over $200,000 in bribes and kickbacks from businessmen in exchange for city contracts and favors Evidence also showed that he participated in a money laundering conspiracy and filed false tax returns Sentencing is set for June 11, 2014
STUFF YOU MIGHT NOT KNOW
Herbert W. A. Thiele, Esq. County Attorney Leon County, Florida The purpose of this presentation is to provide an overview of several somewhat obscure, hard-to- find, or perhaps even perplexing laws and cases in Florida, which may nevertheless come into play in your work with local governing boards.
The City of Lake Buena Vista (home of Walt Disney World Resort), with a population of 10 (+/-), is said to be the smallest incorporated city in Florida by population. The Village of Lazy Lake (in Broward County) is not far behind with a population of 24, and is also the smallest city in Florida by area (15 acres). The Village of Lazy Lake does not even have a traffic light. One of the more interesting historical notes about Lazy Lake is that in 1995 the residents listed the village for sale at $15 million, but no one purchased it. The City of Hampton, population 500 (+/-) and known as a speed trap, has been a hot topic lately. A recent state audit found numerous instances of violations, the mayor resigned and was jailed on drug charges, and all three full time employees (city clerk, chief of police and maintenance operator)
against it after finding that the City was making sufficient efforts to improve its image and
Article VIII, Section 2(a), Florida Constitution, provides that municipalities may be established or abolished pursuant to general or special law, provided that when a municipality is abolished, “provision shall be made for the protection of its creditors.” Chapter 165, Florida Statutes provides the exclusive procedure for forming or dissolving municipalities, except in those counties operating under a home rule charter that provides an exclusive method for forming or dissolving municipalities in said county. See § 165.022, Fla. Stat. See also, s. 6(e), Art. VIII, Fla. Const. Pursuant to Section 165.051(1), a municipal corporation may be dissolved by a special act of the Legislature, or by an ordinance of the governing body of the municipality which is then approved by the voters at an election. Upon adopting the dissolution ordinance, the municipality must set a date for the election at the next regularly scheduled election or at a special election, and if the municipality fails to do so, the county is required to schedule the election. § 165.051(2), Fla. Stat. The election must not be scheduled until at least 30 days after the dissolution ordinance is adopted, and notice of the election must be published in the newspaper at least once a week for two weeks prior to the election. Id.
2 However, the dissolution of a municipality must also meet three conditions: (a) the municipality must not be substantially surrounded by other municipalities; (b) the county or another municipality must be “demonstrably able” to provide necessary services to the area; and (c) an “equitable arrangement must be made for the bonded indebtedness and vested rights of employees of the municipality to be dissolved.” § 165.061(3), Fla. Stat. At dissolution, the title to all property owned by the preexisting municipality is transferred to the county, and the county assumes all indebtedness of the preexisting municipality, unless otherwise provided for in a dissolution plan. § 165.071(3), Fla. Stat. To pay any assumed indebtedness from the dissolved municipality, the county is authorized to levy and collect ad valorem taxes from the area via a special district created for such a purpose. Id. The most recent cities to dissolve were Cedar Grove in Bay County (dissolved in 2008), and Golfview in Palm Beach County, near the Palm Beach International Airport (dissolved in 1998). Both of these cities were dissolved by a vote of the electors. The dissolution of Cedar Grove was a complex process, and highlights of the dissolution plan for Cedar Grove are provided in an article by Terrell K. Arline entitled “The Dissolution of the Town of Cedar Grove,” which appeared in the May 2013 edition of The Florida Bar Journal. One of the more interesting assets of Cedar Grove was a life size Star Wars land cruiser replica that was found in the police impound. In Florida Attorney General Opinion 2010-24, it was opined that Section 165.051, Florida Statutes did not recognize a charter amendment as a method for dissolving a municipality. In this scenario, a group of citizens presented a petition to amend the charter of the Town of Inglis (located in Levy County on the Gulf Coast) in order to dissolve the town. However, that particular method of dissolution is not allowed by the statute. On the other hand, once a municipality is established, it stays established even if its government ceases to function and is dormant for several years. This was the situation in the case of Treadwell v. Town of Oak Hill, wherein the Florida Supreme Court held that Oak Hill (in Volusia County) was a “valid, subsisting municipality,” notwithstanding the fact that, at the time of the case, the town’s commissioners had not met since 1930. Treadwell v. Town of Oak Hill, 175 So.2d 777, 778 (Fla. 1965). Thus, the Florida Supreme Court held that a court could call an election and appoint a board
new mayor in 1963 and has been active ever since. Similarly, in Florida Attorney General Opinion 2006-42, it was opined that the Town of Cypress (in Jackson County) was still in existence even though its government had not been active since 1927. For the Town of Cypress to be reactivated, the circuit court must order an election of town officers. At the present time, the Town’s government remains dormant.
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Public nuisances are described as “nuisances that tend to annoy the community, injure the health of the citizens in general, or corrupt the public morals.” § 823.01, Fla. Stat. (2013). Section 823.05(1), Florida Statutes (2013), states that: Whoever shall erect, establish, continue, or maintain, own or lease any building, booth, tent or place which tends to annoy the community or injure the health of the community, or become manifestly injurious to the morals or manners of the people as described in s. 823.01… shall be deemed guilty of maintaining a nuisance, and the building, erection, place, tent or booth and the furniture, fixtures, and contents are declared a nuisance. All such places or persons shall be abated or enjoined as provided in ss. 60.05 and 60.06. Section 60.05 says that when any nuisance as defined in Section 823.05 exists, the Attorney General, state attorney, city attorney, county attorney, or any citizen of the county may sue in the name of the state to enjoin the nuisance, the person or persons maintaining the nuisance, and the owner or agent
since 1917. The standard for the existence of a public nuisance is relatively low. For example, the Florida Supreme Court has stated that “[a]nything which annoys or disturbs one in the free use, possession,
uncomfortable may become a nuisance and may be restrained.” Mercer v. Keynton, 163 So. 411, 413-14 (Fla. 1935).
Bonfires are also addressed in Chapter 823 on public nuisances. Pursuant to Section 823.02, Florida Statutes, “[w]hoever is concerned in causing or making a bonfire within 10 rods of any house or building shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082
A rod is a lineal measure of 5-1/2 yards or 16-1/2 feet, and is otherwise called a “perch.” Black’s Law Dictionary 1329 (6th ed., West 1990). Thus, a bonfire is not allowed within 55 yards or 165 feet
Chapter 839 pertains to offenses by public officers and employees. Pursuant to Section 839.14: If any officer, after the expiration of the time for which she or he may have been appointed or elected, or in case of death, her or his executors and administrators, or
4 the person in possession thereof, shall willfully and unlawfully withhold or detain from her or his successors the records, papers, documents, or other writings appertaining and belonging to her or his office, or mutilate, destroy, take away, or
documents, papers, or other writings, she or he shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Meanwhile, in Chapter 119 on public records, Section 119.021(4)(a), Florida Statutes, provides that at the expiration of a term in office, whoever has custody of any public records kept or received by the officer in the transaction of official business shall deliver all such records to his or her successor,
Furthermore, upon the request of the successor, any person who has the records must deliver the records to the lawful custodian within 10 days. In Florida Attorney General Opinion 98-59, it was opined that the records held in approximately 250 files of the former city attorney had to be turned over to the successor city attorney. Although the former city attorney was a contract attorney, she nevertheless served as the city attorney and performed the duties of same. Moreover, just because some of the records may have been available elsewhere did not remove the official’s responsibility to turn over the records to her successor. Failure to comply with the statutory mandate to turn over the records that were received or created during her work as the city attorney could subject the former city attorney to criminal penalties. See also, AGO 75-282 (public records, regardless of usefulness or relevancy, must be turned over to the custodian’s successor in office or to the Dept. of State); AGO 2009-39 (records held by a municipal services benefit unit were to be turned over to the special district that was taking over its assets and employees); AGO 95-03 (after abolishment of a special taxing district and the sale of its assets to a private entity, the records of the special taxing district should be transferred to the Division of Library and Information Services).
Section 839.26, Florida Statutes, regarding the misuse of confidential information by a public
Any public servant who, in contemplation of official action by herself or himself or by a governmental unit with which the public servant is associated, or in reliance on information to which she or he has access in her or his official capacity and which has not been made public, commits any of the following acts: (1) Acquisition of a pecuniary interest in any property, transaction, or enterprise
information or official action; (2) Speculation or wagering on the basis of such information or action; or (3) Aiding another to do any of the foregoing,
5 shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Further, a public servant who discloses or uses confidential criminal justice information with the intent to obstruct, impede, or prevent a criminal investigation or a criminal prosecution, when such information is not available to the general public and is gained by reason of the public servant’s
Meanwhile, section 112.313(8), Florida Statutes, which is part of the Code of Ethics for Public Officers and Employees, provides the following: DISCLOSURE OR USE OF CERTAIN INFORMATION.—A current or former public officer, employee of an agency, or local government attorney may not disclose
reason of his or her official position, except for information relating exclusively to governmental practices, for her or her personal gain or benefit or for the personal gain
There are civil sanctions for violating section 112.313(8) and criminal sanctions for violating Sections 838.21 and 839.26, Florida Statutes. In Florida Attorney General Opinion 2003-09, the question was posed regarding whether a public
information that was obtained during the closed meeting. Although Section 447.605, Florida Statutes, relating to closed labor negotiation meetings, did not specifically restrict the dissemination
there were other laws [§§ 839.26 and 112.313(8)] that did prohibit the disclosure of such information under certain circumstances.
Pursuant to Section 839.18, Florida Statutes, newly elected or appointed public officers must not assume to perform any of the duties of the public office before “qualification” according to law. A violation of this statute is a misdemeanor of the second degree. In Stinson v. State, 80 So. 506 (Fla. 1918), the Florida Supreme Court determined that Section 839.18 applied to the case of a person who performed the duties of deputy sheriff before being qualified according to law. In this particular scenario, the person had been appointed as a deputy, had taken the required oath, and had executed a bond. However, the board of county commissioners had not approved the bond. Therefore, the person was not yet qualified to perform the duties of deputy sheriff.
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Section 101.293, Florida Statutes requires a governing body to purchase voting equipment which has a combined retail value of more than $35,000 by means of competitive sealed bids or competitive sealed proposals from at least two bidders. The exceptions are emergency situations, or if the governing body finds that there is but a single source provider of the equipment. If the conditions for the exceptions are found to exist, then the chairman of the governing board must certify this to the Divisions of Elections. Section 101.295, Florida Statutes, sets forth that any governing board member who purchases or sells voting equipment in violation of § 101.293, and who knowingly votes to purchase or sell voting equipment in violation of same, is guilty of a misdemeanor of the first degree and shall be subject to suspension from office on the grounds of malfeasance. The Division of Elections promulgated Rule 1S-2.004, Florida Administrative Code, to provide uniform policies, procedures and best practices for the purchase, sale, and use of voting equipment. The Division of Elections also maintains on its web site a list of vendors who sell certified voting equipment and systems. At the present time there are two vendors. In the case of Sarasota Alliance For Fair Elections, Inc. v. Browning, 28 So.3d 880 (Fla. 2010), the Florida Supreme Court held that the Florida Election Code (Chapters 97-105, Florida Statutes) does not impliedly preempt the field of election law, as certain responsibilities and powers have been delegated to the local authorities, including the choice of voting systems, so long as the voting system has been approved by the Department of State.
The oath of loyalty provisions are found in Chapter 876, Florida Statutes, which is entitled “Criminal Anarchy, Treason, etc.” Section 876.05(1), Florida Statutes, requires all persons who are employed by or on the payroll of the state, county, city, school board, etc., to take an oath of loyalty in the following form: I, _________ , a citizen of the State of Florida and of the United States of America, and being employed by or an officer of ________________ and a recipient of public funds as such employee or officer, do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida. This provision applies to all employees and elected officers of the state, including the Governor and constitutional officers, as well as employees and elected officers of cities, towns, counties, and political subdivisions, including the educational system. § 876.09(1), Fla. Stat. Refusing to take the oath of loyalty shall result in immediate discharge from employment, and any governing authority or person who knowingly or carelessly permits an employee to continue in
7 employment after failing to take the oath is guilty of a second degree misdemeanor. §§ 876.06, 876.08, Fla. Stat. Further, anyone who executes the oath, and is subsequently proved to be guilty of making a false statement in the oath, shall be guilty of perjury. § 876.10, Fla. Stat. The Florida Attorney General has opined that the phrase “citizen of the State of Florida and of the United States” was intended merely as a description of the person making the oath and not to limit government employment to citizens of Florida or the United States. Rather, the purpose of the oath was to ensure the loyalty of the employee to the State and to the United States. Thus, it was opined that the phrase “citizen of the State of Florida and of the United States” in the oath could be modified to accurately describe the person as a citizen of another state and/or resident alien, as the case may
As an aside, the oath of loyalty must be taken “before any person duly authorized to take acknowledgements of instruments for public record in the state.” § 876.05(1), Fla. Stat. Question: who are these “duly authorized” persons? The answer is found in Section 92.50(1), Florida Statutes, and would be a judge, clerk, or deputy clerk of any court of record within the state (including federal courts in the state), United States commissioner, or any notary public within the state. See Fla. Atty.
Section 286.012, Florida Statutes, requires a vote to be recorded and counted for each state, county
interest exists, or appears to exist, under Sections 112.311, 112.313, or 112.3143. In the event of a conflict of interest, the board member must not vote, and must also comply with the disclosure requirements of Section 112.3143. For county, municipal and other local government officers, the disclosure requirements are set forth in Section 112.3143(3)(a), Florida Statutes, which states that prior to the vote by the board, the
afterwards file a Memorandum of Voting Conflict (Commission on Ethics Form 8B) with the clerk
In George v. City of Cocoa, 78 F.3d 494 (11th Cir. 1996), the court held that a city councilman’s possible run for a seat based on a redistricting plan did not require him to abstain from voting on the redistricting plan. In fact, the court said that under Florida law, elected officials have an affirmative duty to vote on all matters before them, and that abstaining from a vote is prohibited unless there is
commissioner may abstain from voting on a measure to avoid creating an appearance of impropriety
8 Question: What if a board member is in attendance at a board meeting, but happens to be out of chambers during the vote on an issue in which the board member has or appears to have a conflict of interest? In Commission on Ethics Opinion (CEO) 88-3, the Ethics Commission concluded that a board member would be required to publicly announce the basis of a conflict of interest and file a memorandum of voting conflict even if the board member was in attendance but temporarily absent from that portion of the meeting during which the board meeting had a voting conflict. See also Fla.
member during the vote on a particular matter which comes before the body of which he is a member during a meeting at which he is present”).
One must continue to advise local government officials that there should be no private discussions with fellow commissioners about any item upon which they may be asked to render a decision. The purpose of the Government in the Sunshine Law is “to prevent at non-public meetings the crystallization of secret decisions to a point just short of ceremonial acceptance.” Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974). The Sunshine law covers “any gathering of some of the members of a public board where those members discuss some matters on which foreseeable action may be taken by the board.” Hough v. Steinbridge, 278 So. 2d 288, 289 (Fla. 3d
Oh, my… On October 19, 2011, a rather embarrassing headline was posted on The Ledger.com as “Restroom Conversation Between Lake Wales Officials Raises Sunshine Question.” Apparently, the Mayor and a City Commissioner were discussing City business in the men’s room when a reporter walked in. As the item of discussion had already been decided by the Commission, the City Attorney did not consider the restroom discussion to be a Sunshine Law violation, but did acknowledge that it only took the appearance of impropriety for someone to claim a violation. Jail time? Yes, it can happen. Former Florida Senate president W. D. Childers was the first public
in-the-Sunshine Law. Childers, who, at the time, was serving as Chairman of the Escambia County Commission, was convicted by a jury in 2003 of Sunshine Law violations for discussing public business in private with other commissioners. Childers was sentenced to 60 days in jail and ordered to pay a $500 fine, plus $3,603.85 in court costs and investigation and prosecution expenses. Childers appealed this decision to the First District Court of Appeal (as well as court decisions on related issues), but was unsuccessful.
It is common for the local government lawyer to be the designated “parliamentarian” at a commission meeting. The parliamentarian advises the board chairman on the correct rules of
9 procedure and answers questions regarding specific rule application. In addition, the parliamentarian may call to the chairman’s attention any errors in the proceedings that may affect the substantive rights of any member or otherwise do harm. Sometimes a motion to temporarily suspend or waive the rules may be the best course of action for the parliamentarian to suggest. See Robert’s Rules of Order Newly Revised (10th ed.), p. 68 (“When it is desired that the assembly take up a question or do something that would be in violation of a rule that applies, it can be proposed in some cases to Suspend the Rules to permit accomplishment of the desired purpose” (emphasis in text; citation omitted). See also, Robert’s Rules of Order Newly Revised (10th ed.), pp. 252-258 (explaining the object and effect of a motion to suspend the rules). Question: Can the Chairman second a motion? The answer appears to be yes, at least for small boards (boards that consist of twelve or fewer members), and subject to the rules or customs within the particular board. See, e.g., Robert’s Rules
and, subject to rule or custom, usually can make motions).
Chapter 347, Florida Statutes is devoted to “Ferries, Toll Bridges, Dams, and Log Ditches,” and many of the regulations have been in existence since the late 1800’s. Section 347.01 provides that county commissioners may grant licenses of up to ten years to applicants who wish to establish ferries, toll bridges, mills, dams, and log ditches upon and across county rivers and streams. County commissioners have the authority to order and direct the amount that is charged to use a licensed ferry or toll bridge. Section 347.215 was added to this chapter in 2012 to allow a county to authorize the operation of a ferry by a single party, or by multiple parties under a joint agreement between public and private
in operation since 1948 (although ferry service to Mayport has officially been in existence since 1894). The ferry is presently operated by the St. Johns River Ferry Commission, which has contracted with a private entity to run the ferry. Meanwhile, the penalty for maintaining an unauthorized ferry is a mere $20 fine. § 347.25, Fla. Stat. This statute has not been amended in quite some time. As an aside, from 1842 to 1988, clergymen and preachers were exempted from having to pay bridge and ferry tolls. Alas, that law was repealed in 1988. Also, in case anyone is wondering, a log ditch was a canal that was used many, many years ago to move harvested trees to a log mill for further processing.
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Section 125.67, Florida Statutes, provides that: Every ordinance shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title. No ordinance shall be revised or amended by reference to its title only. Ordinances to revise or amend shall set out in full the revised or amended section, subsection, or paragraph of a
Board of County Commissioners of ____________ County:” In the case of Save Our County Coalition v. Wittenstein, 351 So. 2d 1112 (Fla. 4th DCA 1977), the District Court, in agreeing with the trial court, ascertained that the evidence presented supported the finding that the proposed ordinance was facially invalid because its subject was not “briefly” described in the title of the ordinance as required by law. The ordinance title in question was this: AN ORDINANCE RELATING TO LAND USE PLANNING; REQUIRING DEFERMENT OF FINAL DECISION ON PETITIONS FOR ZONING OR REZONING, DEFERRING GRANTING OF BUILDING PERMITS, FOR A LIMITED PERIOD OF TIME, WITHIN A PORTION OF THE SOUTH WEST QUADRANT OF BROWARD COUNTY, FLORIDA, PROVIDING FOR THE TERMINATION OF THE ORDINANCE, AND PROVIDING FOR THE EFFECTIVE DATE. 351 So. 2d at 1113 (Emphasis added.) The problem with the ordinance title was that the description
According to expert testimony, the term “quadrant” was imprecise as regards to land descriptions, and the affected land was not in the southwest quadrant of the county as described in the title of the
the proposed ordinance failed to comply with Section 125.67 and was deemed invalid on its face.
Pursuant to Section 125.68, Florida Statutes, counties are required to maintain a current codification
are ordinances concerning the comprehensive plan, development agreements, and development
be recorded in a book kept for that purpose and maintained by the clerk of the board. § 125.68(1)(d),
adopts or amends the comp plan, development agreement, or development order. Id. In the case styled First Assembly of God of Naples, Florida, Inc. v. Collier County, Florida, 20 F.3d 419 (11th Cir. 1994), modified on denial of rehearing, 27 F.3d 526 (11th Cir. 1994), cert. den. 513
11 U.S. 1080 (1995), one of the allegations asserted by the church was that it had been denied procedural due process by the county’s failure to codify its zoning laws annually as required by Florida law. Although the U.S. Circuit Court of Appeals noted that the county’s failure to codify its
Interestingly, there is no statute that requires municipalities to codify their ordinances. Rather, upon final passage by the municipality, every ordinance is to be recorded in a book kept for that purpose and signed by the presiding officer and clerk. See § 166.041(4), Fla. Stat.
A “testimonial” is defined as “any breakfast, dinner, luncheon, rally, party, reception, or other affair held to honor or raise funds on behalf of any elected public officer,” with the exception of a campaign fundraiser. § 111.012(1)(a), Fla. Stat. An organization that is hosting a testimonial for an elected official is required to file a notice of intent to hold a testimonial (Form DS-DE 60) with the Supervisor of Elections (for county and city officers) or Division of Elections (for state and district
can be accepted. § 111.012(2), Fla. Stat. The Florida Attorney General was asked what types of events were subject to the reporting requirements and opined that, while the subject statute “refers to affairs that honor or raise funds on behalf of any elected public officer,” this did not mean “that the Legislature intended to encompass all events honoring a public official where no funds are being raised or payments made to attend. To read the statute so broadly could result in, for example, birthday parties held by family members for an elected public official being subject to the statute.” Fla. Atty. Gen. Op. 2003-19. After payment of the expenses for the testimonial, any leftover funds must be donated to a charity, returned pro rata to the contributors, or deposited in the general fund of the elected official’s government entity. § 111.012(2)(d), Fla. Stat. Elected public officers are prohibited from receiving any leftover funds for personal use. See Fla. Atty. Gen. Op. 88-17. Finally, a report concerning the receipt and disposition of the funds must be filed with the Supervisor of Elections (or Division of Elections, as the case may be) by the person in charge of the testimonial within 90 days after the testimonial is held. A violation of the law concerning testimonials is a first degree misdemeanor, which is punishable by one year in prison and/or a $1000 fine. § 111.012(2)(e) and (f), Fla. Stat.
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Section 111.05, Florida Statutes provides that a public officer who is suspended from office by the Governor and who subsequently becomes lawfully entitled to resume the duties of office, “shall suffer no loss of salary or other compensation because of the suspension.” Any compensation which was unpaid during the officer’s suspension is to be paid “from the source and in the manner in which the compensation of the office is normally paid.” § 111.05, Fla. Stat. In Florida Attorney General Opinion 2013-23, the supervisor of elections for Madison County had been charged with 17 counts of neglect of duty and suspended from office by the Governor. Her term of office ended while the suspension was still in place. No further action was ever taken on the suspension and the supervisor of elections was never reinstated. However, after her term of office had expired, the court dismissed her charges and she requested back pay and benefits for the time of her suspension. The Attorney General’s Office found that the former official was not statutorily entitled to back salary and benefits, unless the official had been reinstated to office by affirmative action of the Governor, the Senate, or a court. This conclusion was consistent with the opinion rendered several years ago in Florida Attorney General Opinion 72-222 (unless and until a suspended
compensation accrued during suspension, even though the indictment was nol-prossed). In the case of Flack v. Graham, 453 So. 2d 819 (Fla. 1982), the petitioner, a county judge for Wakulla County, had sought re-election to office but her opponent was declared the winner. The petitioner challenged the validity of several absentee ballots, and almost four years later, she prevailed in the challenge and was declared the election winner. One of the issues posed to the court was whether she had a legal right to the compensation that she would have received had she fully served her term of office. The Florida Supreme Court found that, although the judge who was
actual winner of the election and was entitled to back pay. Further, she was not required to offset her back pay with earnings made in private practice while the election results were in dispute.
Public officials need to have some familiarity with the federal “honest services” act. Although federal mail fraud statutes have been around since the 1870’s, the term “honest services” is not actually defined by the statute and may seem somewhat obscure at first glance. The federal mail fraud statute, 18 U.S.C. § 1341, as well as the companion wire, radio or television fraud statute, 18 U.S.C. § 1343, provide that, “[w]hoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted” by means of mail, wire, radio or television communication in interstate or foreign commerce, shall be fined or imprisoned for note more than 20 years, or both. Under 18 U.S.C. § 1346, the phrase “scheme or
13 artifice to defraud” is defined as a scheme or artifice to deprive another of the intangible right of “honest services.” Although the term “honest services” is not defined, it has withstood numerous challenges for unconstitutional vagueness. Notably, in 2010, the U.S. Supreme Court issued its landmark decision in the case of Skilling v. United States, 130 S. Ct. 2896 (2010), which involved former Enron CEO Jeffrey K. Skilling. In the Skilling case, the Supreme Court held that that § 1346 was not unconstitutionally vague when properly confined to bribery and kickback schemes. However, the Court did narrow the parameters of honest services fraud when it found that the nondisclosure of a conflict of interest (or undisclosed “self-dealing”) was not a violation of the statute. It had been widely speculated that the Skilling decision would greatly reduce the number of honest services fraud prosecutions throughout the country. However, the federal government has continued to successfully utilize the federal honest services fraud statutes to prosecute public officials for bribery and kickback schemes, as can be seen from the following recent examples. On October 17, 2013, Kwame Kilpatrick, former mayor of Detroit, was sentenced to 28 years in prison for using his public office to execute a wide-ranging racketeering conspiracy that included extortion, bribery and fraud. In March of 2013, after a five-month trial, a jury convicted him of 24 counts of extortion, mail fraud, tax violations, and racketeering. It was alleged that he had extorted city vendors, rigged bids, took bribes, and systematically exploited his office to enrich himself, friends, and family. He also allegedly spent funds received from non-profit civic organizations, which were supposed to be used to better the community, on luxury vacations, spa treatments, yoga lessons, and golf clubs. Mr. Kilpatrick began serving his sentence in January 2014 at a medium security federal prison near Oklahoma City, Oklahoma. Thirty two other individuals were also convicted for their roles in the crimes, including Mr. Kilpatrick’s contractor friend, Bobby Ferguson, who was sentenced to 21 years in prison. Mr. Kilpatrick’s father, Bernard Kilpatrick, was sentenced to 15 months on a charge of subscribing false tax returns. On November 13, 2013, Manuel “Manny” Maroño, the former mayor of the City of Sweetwater, pleaded guilty to one count of conspiracy to commit honest services wire fraud. Mr. Maroño admitted that, beginning in November 2011, he agreed to help a company obtain federal grant funds to prepare an economic development study for Sweetwater, in exchange for cash kickbacks totaling $30,000. It turned out that the company he was helping was actually an undercover FBI entity. He was recently sentenced to 40 months in prison. Lobbyist friend Jorge Forte also pleaded guilty for his role in the conspiracy and was sentenced to 1-1/2 years in prison. Miami Lakes Mayor Michael Pizzi was indicted on October 24, 2013, on charges of attempted bribery and conspiring to commit extortion for aiding the same undercover FBI entity in a scheme to
is scheduled for July 2014. Miami Dade lobbyist Richard Candia was also arrested for his role in the scheme.
14 Tony Devaughan Nelson, the former chairman of the Jacksonville Port Authority, was found guilty in 2011 of 36 corruption-related charges, including honest services mail fraud, bribery, money laundering, and lying to the FBI, for reportedly soliciting and receiving $143,500 in bribes from a dredging company that had ongoing business with the Authority. He was sentenced to 40 months in federal prison. He appealed his convictions, arguing, among other things, that the federal fraud and bribery statutes were unconstitutionally vague. However, on March 13, 2013, the Eleventh Circuit Court of Appeals affirmed his convictions in a split decision, with the majority holding that the challenged federal statutes “gave Nelson adequate notice of the conduct they prohibit.” On January 17, 2014, George Brown, former Roadway Lighting Coordinator for the Miami-Dade County Department of Public Works, pleaded guilty to one count of accepting bribes in connection with programs that receive federal funds, which is a violation of Title 18 of the United States Code, Section 666. During 2011 and 2012, Mr. Brown allegedly received more than $13,000 in bribes, including an air conditioning unit, stainless steel refrigerator, stove, computer equipment and other merchandise from the lighting contractor, in exchange for securing the purchase of $40,000 of the contractor’s products by the Department of Public Works. He was sentenced to 30 months in prison and ordered to forfeit $13,000. On January 21, 2014, former Virginia Governor Robert F. (Bob) McDonnell and his wife, Maureen
commit honest services wire fraud, three counts of honest services wire fraud, one count of conspiracy to obtain property under color of official right, six counts of obtaining property under color of official right, and one count of making false statements to a federal credit union. Mr. McDonnell was also charged with an additional count of making a false statement to a financial institution, and Mrs. McDonnell was charged with one count of obstruction of an official proceeding. It is alleged that the McDonnell’s participated in a scheme to use the Governor’s official position to enrich themselves by soliciting and obtaining over $165,000 in loans and gifts from the CEO of a company that sold dietary supplements. In exchange for cash, loans, golf outings and equipment, luxury goods (such as a Rolex watch), designer clothes, trips, and private plane rides, the former Governor allegedly performed official actions to legitimize, promote, and obtain research studies for the dietary supplements. The trial is set for July 28, 2014. On February 12, 2014, C. Ray Nagin, the former mayor of New Orleans, was found guilty in federal court of 20 counts of bribery, wire fraud, and filing false tax returns. It was alleged that Mr. Nagin accepted over $200,000 in bribes and kickbacks from businessmen in the form of checks, cash, wire transfers, free granite inventory (for his countertop business), trips , cell phone service, and lawn care, in exchange for city contracts and favors. In addition, evidence was presented to prove that Mr. Nagin participated in a money laundering conspiracy and filed false tax returns. Sentencing is set for June 11, 2014, and he could face up to 20 years in prison and substantial fines.
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