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Ethics Law Update

There are several points at which Florida’s Code of Ethics and Florida’s elections laws overlap.  In a series of complaint proceedings made public on October 28, 2009, the Commission on Ethics addressed alleged violations involving the conduct of public officers and employees in using their public position or the property and resources within their trust to engage in political activity.  The alleged violations investigated by the Commission on Ethics involve Section 112.313(6), Florida Statutes, which prohibits misuse of public position.

 

The Commission found probable cause to believe that an employee of the Brevard County property appraiser’s office misused his position by holding a meeting in a county office building, during regular work hours, with subordinate employees asking them to help with a fundraising event for the local political party executive committee.  Complaint No.  07-72. (See also Section 104.41, Florida Statutes, Florida’s “little Hatch Act” and Section 106.15(4), Florida Statutes, which prohibits soliciting a political contribution in a building owned by a governmental entity.)

 

The Commission also found probable cause to believe that an employee of the Brevard County property appraiser’s office misused his position by soliciting one or more campaign contributions from his office during working hours.  Complaint No. 08-148. (See also: Section 106.15(4), Florida Statutes, which prohibits soliciting a political contribution in a building owned by a governmental entity.)

 

Finally, the Commission found probable cause to believe that an employee of the Brevard County property appraiser’s office misused his position by typing campaign-related letters during office hours.  Complaint No. 08-149.  (Section 106.15(3), Florida Statutes, which prohibits a candidate from using the services of any state, county, municipal officer or employee in furtherance of his or her candidacy during working hours.)

 

Prepared by: Mark Herron

HIPAA Enforcement - The Gloves Are Off!

It appears that after years of criticism for lax enforcement of the HIPAA privacy rules the Federal government has taken the gloves off.  On October 26, 2009 the United States Attorney for the Eastern District of Arkansas announced the sentencing of a doctor and two former hospital employees convicted of violating the HIPAA privacy rules.

Dr. Jay  Holland, Sarah Miller and Candida Griffin, who were formerly employed or affiliated with the St. Vincent Infirmary Medical Center in Little Rock, Arkansas, pled guilty to intentionally and inappropriate accessing a patient's medical record.  All three admitted accessing the patient's medical record out of curiosity and without a legitimate reason.  Although the trio faced the possibility of up to 1 year in jail and a fine of $50,000.00, the Court sentenced the three to 1 year's probation and a fine.  In addition to the $5,000.00 fine, the steepest of the three, Dr. Holland was also required to perform 50 hours of community service educating other professionals on HIPAA.

A copy of the press release may be found at:

http://littlerock.fbi.gov/dojpressrel/pressrel09/lr102609.htm

Prepared by:

Bill Dillon

Board Certified in Health Law

Ethics Update

Without comment, the First District Court of Appeal affirmed an advisory opinion issued by the Commission on Ethics in which it concluded that a city attorney who serves in that capacity because his firm is retained as an independent contractor is required to file annual financial disclosure. Williams v. State of Florida, Commission on Ethics, Case No. 1D09-43 (Fla. 1st DCA October 21, 2009), which can be found here.

 

The advisory opinion – CEO 08-27 – noting that Section 112.3145(1)(a)3., Florida Statutes, specifies that any person holding the position of “municipal attorney” is required to file an annual statement of financial interests, concluded “[t]hat Section does not differentiate between an enumerated city attorney who is a city officer, a city attorney who is a city employee, an attorney retained by contract directly with the attorney in his or her individual capacity, or an attorney whose firm was hired via contract when that attorney does the majority City’s work for the firm.” 

 

Prepared by: Mark Herron

Election Law

Florida law disqualifies a person from service on a county canvassing board who is a candidate with opposition in the election being canvassed or who is “active participant” in the campaign or candidacy of any candidate who has opposition in the election being canvassed.  Section 102.141(1), Florida Statutes.

 

In an advisory opinion issued on October 15, 2009, the Division of Elections construes the term “active participant” to mean a canvassing board member who has undertaken an effort intentionally to demonstrate or generate public support of a candidate beyond merely making a campaign contribution.  Division of Elections Advisory Opinion DE 09-07, which can be found here.

 

Specifically responding to the questions asked, the Division opined that the following activities would make a canvassing board member an “active participant” in a candidate’s campaign or candidacy:

 

• Being a member of an election or re-election committee of a candidate.
• Making a public endorsement of a candidate with or without financial support.
• Holding campaign signs, wearing a campaign t-shirt, or other public display of support of a candidate.
• Signing an endorsement card for a candidate.
• Attending a candidate’s campaign fundraiser.
• Chairing or co-chairing an on-going election campaign or a fundraiser for a candidate.

 

The mere giving a campaign contribution would not make a canvassing board member an “active participant” in the campaign or candidacy of a candidate.

 

Prepared by: Mark Herron

Defamatory Statements Made by Public Officials

Citing McNayr v. Kelly, 184 So. 2d 428 (Fla. 1966), the United States District Court for the Southern District of Florida concludes that Florida law extends to public officials “an absolute privilege as to defamatory publications made in connection with the performance of their official duties and responsibilities.”  Rico v. School Board of Miami-Dade County Public Schools, 23 Fla. Law Weekly Fed D54 (S.D. Fla. September 17, 2009).

 

In construing scope of the privilege, the district court concludes that the allegedly defamatory statements made by a member of the school board (Marta Perez), including those made to the media, “were made in connection with the performance of Perez’ official duties and responsibilities.”  Accordingly, the district court dismissed the Plaintiff’s complaint with prejudice as to Defendant Marta Perez.

 

 Prepared by:  Mark Herron

Judicial Elections: Contributions to Judicial Candidates

            The Fourth District Court of Appeal reiterates current Florida law that an attorney’s campaign contributions to a judicial candidate within the statutorily permitted limits are not a legally sufficient ground for disqualification.  E.I. DuPont de Nemours and Company, Inc. v. Aquamar, S.A. et al., Case No. 4D09-2871 (Fla. 4^th DCA September 30, 2009), which can be found here.  In denying DuPont’s petition for a writ of prohibition, the Court noted that the contributions from attorneys in the firm representing the plaintiffs totaled $4,650 and contrary to the assertions of DuPont did not approach the $3 million contribution at issue in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009).

Prepared by:

Mark Herron

Judicial Elections: Candidates Beware

            In recent filings in the Florida Supreme Court concerning the 2008 election campaign of incumbent Circuit Judge Angela Dempsey of the Second Judicial Circuit, the Judicial Qualifications Commission (JQC) alleged that, during the campaign, an advertisement appeared on YouTube entitled “re-elect” Judge Dempsey when she had not been previously elected to the Circuit Court, but had been appointed by the Governor in 2005.  The JQC alleged that the advertisement violated Canon 7A(3)(d)(ii). Inquiry Concerning A Judge, Re: Judge Angela Dempsey, Case No. SC09-1747 (Fla.) “Notice of Charges”, which can be found here.  In a stipulation resolving the matter, “Judge Dempsey acknowledges that use the term “re-elect” was misleading because Judge Dempsey was then a gubernatorial appointee running for election for Circuit Court Judge for the first time....”  A copy of the Stipulation can be found here.

            The action of the JQC in advancing this allegation appears to conflict with substantive election law: “[A] candidate who is presently in possession of an office to which he was appointed and for which he is running for re-election may use the word ‘re-elect’ in a political advertisement.”  Division of Elections Opinion (DE) 01-02.

Prepared by:  Mark Herron

Ethics Law Update

Ethics and Criminal Law: Official Misconduct

            In a case that may have a significant impact on the pending criminal trial State Representative Ray Sansom, the Fourth District Court of Appeal held that in establishing that a public servant falsified an official record in a prosecution for official misconduct pursuant to Section 838.022, Florida Statutes, the state is required to prove only that the public servant “misrepresented the underlying facts on the form.”  Wasserstrom v. State, Case No. 4D08-720 ( Fla. 4^th DCA September 30, 2009), which can be found here. In motions to dismiss, Representative Sansom and the other defendants argued that misrepresentation was not sufficient to prove that an official record was falsified for the purposes of the official misconduct statute.

            In Wasserstrom the issue presented was whether a member of the Hollywood City Commission misrepresented the potential benefit that would inure to him on the required memorandum describing a voting conflict (Commission on Ethics Form 8B) from a measure being voted on the City Commission on which he abstained from voting.  The District Court held that the evidence admitted at trial was sufficient for a jury to conclude he did.

Prepared by:

Mark Herron