Key West The Newspaper

by Rick Boettger…….

You would think I would be a big fan of the Ethics Commission.  After all, I filed three complaints, and two were upheld for a total of three violations. Many people are amazed and impressed that I got any favorable holdings at all, given their own experiences. They told me the Ethics Commission is just like the FDLE and police internal reviews, just white-washing for the guilty.

After seeing the details of how my case was handled, I now agree, with a great deal of what is, to me, shocking data on how bad they are. On the most important charge they investigate, official misconduct, meaning using a public position to give a special benefit to someone, I would warn everyone NEVER TO FILE A CHARGE.

Why not? Because the Ethics Commission never sustains a charge, unless the public official has already been convicted by another government agency. In 2015, 117 official misconduct complaints were filed with the Commission. Only 27 were investigated. The way it works is, the Ethics Commission’s staff sometimes investigates the complaints. This staff report in my case was 17 single-space pages plus three times as many pages of exhibits, and was reasonably thorough, though with gaping holes.

This report is then given to an Advocate who will file the formal charges. The Advocate is not an employee of the Commission, but is an Assistant Attorney General assigned as prosecutor for cases before the Commission. Only a few advocates each handle a lot of cases, so I would characterize them as only technically upholding the due process requirement that the investigating agency not also be the prosecuting agency. The advocate then recommends to the citizens who are the Ethics Commissioners whether there is “probable cause” to make an actual legal case against the accused public official.  If the Advocate says “No probable cause,” that is the end of it. The commissioners did not over-rule a single no probable cause recommendation.

Understand?  The – to me – shocking news was that out of the 117 complaints, only FOUR were held for “probable cause.” In one, a deputy had misused his position, and the Sherriff’s Office’s internal investigation confirmed a violation, and was given a formal reprimand and other punishments—and we know how rare that is.

A second was for a conflict of interest. The complainant had asked the Ethics Commission for an informal advisory opinion, which held that there indeed was a “prohibited conflict of interest.” When the official continued his violation, the complainant then filed the actual complaint.

The last two were actually for the same case. Two County Clerks had given themselves a total of $270,000 in unwarranted payments. The FDLE investigated and said “probable cause exists to charge [the two clerks] with Grand Theft, a felony of the first degree . . .”

So of the 117 complaints, really only three cases got the Advocate’s recommendation of “Probable cause” that the charged official violated an ethics law. In all three, a government authority had already held against the officials—the Sherriff, the FDLE, and the Ethics staff themselves.

And here is where it gets unbelievably worse. Of the three slam-dunk, already-convicted cases, TWO WERE OVER-RULED by the Commissioners in their monthly closed-door meetings. They rejected the Deputy’s case, which the Sherriff himself had ruled a violation. They rejected the conflict of interest case, which their own staff in their advisory opinion, upheld by the advocate, had ruled a violation.

So it seems it takes the generally-whitewashing FDLE saying a quarter-million dollar theft is “Felony Grand Theft” to get the Ethics Commissioners to say “guilty.” Since it was essentially the same case, you can say that one out of 116 cases was the Commission’s record for 2015.

So it is, first of all, a waste of time to go to the Ethics Commission with any charge of official misconduct. You have to present a lot of evidence in order to get them to even investigate, which they will not even do the great majority of the time. Then the investigators, of whom mine was the best, overwhelmingly nose towards exculpatory evidence, favoring the report of the politician’s fellow politicians that, nope, nothing happened, let’s move along here. Finally, even when the 3 out of 116 get the generally exculpatory Advocate to recommend Probable Cause, the kind-hearted Commissioners in two cases out of three say, no, everything is just fine.

Second, and this is actually worse, making a complaint and then having it rejected makes the offending official look like the good guy, and the complainant into the bad guy. I saw reams of solid evidence of wrongdoing cavalierly dismissed, solid investigative work done at great length by complainants like myself, just ignored in favor of a fellow politician’s saying “No harm here.” Think—you can be screwed by the public official, work your butt off to get some satisfaction from your official government agency designed, and paid well, to support your rights against our powerful public officials, and, in most cases, not even get an investigation. And then, the offender gets a clean bill of health (for everyone not already charged by the FDLE). You end up looking like a schmuck for complaining about the “innocent” public figure who in fact screwed you.

I don’t know if the Commission was set up to be a sham white-washer of public figures’ misdeeds, or if this is the most extreme version of “regulatory capture” I’ve ever seen. This term evolved from the Atomic Energy Commission’s evolution from a watchdog to an enabler, a defender of any and all industry practices, including those that led to Three Mile Island. It generally occurs because the intended watchdogs spend almost all of their time working inside the group they are supposed to be monitoring.  Over time, they naturally begin to identify with the real people with the same expertise as their own, and less with the public at large they are supposed to be protecting.

So: what to do? I tried to find a national government ethics commission but couldn’t. There was one briefly a few decades ago. I found a D.C.-based Foundation for Accountability and Civic Trust, which I’m pretty sure was designed as a whitewash organization. Their web site is all about the great things happening with ethical government, and the proliferation of state ethics commissions like ours. I called them to ask for information about other states’ records on official misconduct. Oddly, the guy in charge of that field would not speak to me, even though he was in the office. He would only respond to voice mail.  I briefly described what I had found in Florida, asking if this was normal practice. He never answered.

So what I have left is trying to get this published in a state-wide paper, and hoping a full-time investigative journalist, in my dreams from a national publication, uses my personal experience and my two hours of research when I was in Tallahassee as just the tip of the iceberg.  Ooh, what a thrill it would be to see this written up in the NYT, WSJ, Mother Jones, The Atlantic, Harpers, or Vanity Fair (surprisingly good work after the fifty pages of Bulgari ads).

Also, I think our cost-cutting Governor and state legislators should know what a waste of citizens’ taxes, time, and reputation this superfluous agency is. It could be cut down to 10% of its budget, I’ll bet, and still do its simple task of collecting various financial disclosure forms.

I went into this investigation with the declared purpose—I told the Ethics Commission I was studying them—of investigating the investigators. By knowing one case inside out, I’d be better able to understand how they worked not only on mine, but others. It is far worse than I ever could have imagined. I have now “probable cause” to go after them. I feared this would be the case, so I was glad to have the secondary charges upheld.  Even there, they did all they could to make the guilty official look good and the good citizen look bad—they added on three charges I never made or wanted to make, and then dismissed them. This lets the official, whom I now realize their office exists to protect, look good even when guilty, being relieved of so many charges that are falsely attributed to the good citizen (blush, in this case me).

The next test is the sanctions they choose. For his three violations, the list of possible punishments is long:

1. Impeachment.

2. Removal from office.

3. Suspension from office.

4. Public censure and reprimand.

5. Forfeiture of no more than one-third of his or her salary per month for no more than 12 months.

6. A civil penalty not to exceed $10,000.

7. Restitution of any pecuniary benefits received because of the violation committed.

One of the three violations should actually have been at least five.  One of the defined “gifts” that must be reported is “membership dues,” and “Membership dues paid to the same organization during any 12-month period shall be considered a single gift.” So you can miss four quarters of not reporting your $1,500 and only get a single violation. The report discussed at last five years of free membership at $6,000/year, probably in fact twice that long. If #7 above applied, this would mean a $30,000 fine. But for no good reason I could get from a Commission lawyer yesterday, the many years of not filing his gift forms led to only a single charge—while they were adding additional charges I never made that they could then dismiss.

From my experience so far, I expect a slap on the wrist.

I thought I was wrapping this six-year cause up. Instead, it looks like I still have a few more years of work to do. Maybe this will take as long as Saving the Pines took Helen Harrison. Good thing I am a patient and persistent investigator.

Dear Readers, I thank you from the bottom of my heart for all of the support and cheers I have received from you. This has been a long, lonely fight.

DID YOU LIKE THIS STORY?  SUPPORT THE BLUE PAPER

Help us continue to bring you local investigative journalism… 

CONTRIBUTE: