In response to a recent criminal investigation of several Jacksonville City Council members, the Jacksonville Ethics Commission is asking Florida Attorney General Ashley Moody to issue a legal opinion on local ethics commissions’ ability to enforce the state’s Sunshine Laws.
Sunshine Laws are designed to give residents access to government meetings at the state and local level. They also prohibit appointed and elected officials from discussing official business outside of those public meetings. Jacksonville city code also requires local officials to follow those rules.
After State Attorney Melissa Nelson issued a report in February concluding a year-long investigation into potential Florida Sunshine Law violations by Jacksonville City Council members, the Ethics Commission wants to know what it can do.
Nelson found thousands of calls between councilmembers leading up to the 2017 and 2018 elections. The investigation looked into communications between former council president and mayoral candidate Anna Lopez Brosche, councilmen Garrett Dennis, Reggie Gaffney and Sam Newby as well as former council members Katrina Brown and Reggie Brown.
“Common sense dictates that Council members do not spend 62 hours, 74 hours, and 38 hours on the phone with other Council members discussing simple scheduling matters or irregular personal matters,” the state attorney wrote. “Council members’ initial denials of having substantial telephone contact with other Council members before being confronted with the actual records provides some evidence - perhaps compelling evidence - of knowledge and intent.”
But, because Nelson’s office couldn’t determine what was being discussed in those phone calls, investigators weren’t able to establish beyond a reasonable doubt that the Sunshine Law had been violated.
The Ethics Commission first sent a request for legal opinion to the city’s General Counsel Jason Gabriel.
Related: State Attorney Finishes Jacksonville City Council Sunshine Law Probe; No Charges Filed
In his response dated March 1, Gabriel wrote, “The Ethics Commission may not ‘consider and adjudicate alleged violations’ of Florida’s Sunshine Law or Public Records Law or the Jacksonville Sunshine Law.”
“The enforcement of a violation of either the Sunshine Law or Public Records Law is through the court system and not through an administrative process, either state or local. The Jacksonville Ethics Commission does not have jurisdiction to impose any remedy or penalty provided for a violation of the referenced Florida Statutes.”
But in the footnotes Gabriel pointed out that “this opinion leaves open the question of the authority of the Ethics Commission to impose fines or other penalties.”
Under the Jacksonville city charter, the general counsel’s opinion is binding unless the attorney general disagrees on an issue of state law.
“We do, obviously, appreciate Mr. Gabriel’s opinion on it, but we thought we should ask the attorney general to verify that,” Ethics Commission Chair Joe Rogan said.
Rogan said it’s incredibly difficult to enforce the Sunshine Law.
“Basically, you have to prove what two or more people said to each other is criminal,” he said. “If you can’t get them to just admit that they committed a crime then you’ve got to prove it through some other way. And if the state attorney can’t use a wire tap, you’re limited to circumstantial evidence, essentially.”
But he said the standards are lower in a non-courtroom context.
“We don’t have the authority to put people in jail,” Rogan explained. “Because our enforcement jurisdiction is limited, the standard of proof is lower. So before the Jacksonville Ethics Commission, a complainant would not need to prove beyond a reasonable doubt.”
“If Attorney General Moody comes back and says, ‘Respectfully, I disagree. This is not preempted,’ Then we can move forward and have those conversations and figure out if we have a place in Sunshine Law enforcement,” he said.
If that is in fact how Moody responds, it would give the Ethics Commission the authority to do things like subpoena and interview witnesses and, if it finds Sunshine Law violations, issue public reprimands, civil penalties of up to $500 or both.
As Brosche faces a city election against incumbent Mayor Lenny Curry, Rogan waved off anyone who might be suspicious of the timing of the commission’s inquiry.
“The state attorney released this report, we read it and I don’t think we would be doing our job, on the commission, if we waited to address this just because of the timing that it was released,” he said. “So I think we’re considering it as the facts are happening in the community, and it’s not related to any other motive.”
Brendan Rivers can be reached at brivers@wjct.org, 904-358-6396 or on Twitter at @BrendanRivers.
