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Looking ahead: Sawicki wants to recoup legal fees

By Staff | Nov 16, 2017

Cape Coral Mayor Marni Sawicki has put the city – and another outgoing member of City Council – on notice: She plans to seek attorney fees and costs should the ethics complaint filed against her last year be dismissed.

Saying the complaint, filed by out-going Councilmember Richard Leon, will not be addressed before newly elected Council members are sworn in on Monday, Sawicki told the sitting Council at its last meeting that she expects to be cleared, that she has a right to seek reimbursement, and that she will do so.

She said she also will request an accounting of staff time spent on the complaint.

… “I’m just letting you know since I won’t have this opportunity again to have this discussion that I will be going for those fees and I also will be wanting to know hourly how much it cost the taxpayers to be put through this for a year and a half…” Sawicki concluded at last Monday’s Council meeting.

“…From all parties, including those who filed them,” she added. “Again, I’m not worried about it. Now that it’s coming to an end and I won’t have another night to say this, I will be coming and petitioning the Council, the new Council, when it is all settled.”

Sawicki said Wednesday she will pursue two avenues for reimbursement.

One, she will appeal to the incoming Council for payment from the city. Cape Coral has a policy though the Florida Municipal Insurance Trust with the Florida League of Cities to cover officials who incur costs related to actions made in the course of performing their public duties. Insurance would cover half of her expenses, which could reach $10,000, Sawicki said Wednesday. To that end, she will ask the new Council to consider a reimbursement request if and when the complaint is either dismissed prior to a formal investigation or she is cleared in a full Commission on Ethics review of the complaint.

“I had the choice, ask the city to pay for it or ask for reimbursement. I think it would be easier to say, ‘I’m exonerated, can I have my money back?'” she said.

Two, there is a statutory provision that allows a public official who has been the subject of a complaint to the Florida Commission on Ethics to be reimbursed for fees and costs should that complaint be determined to have been filed with the knowledge that it contained one or more false allegations or with reckless disregard as to whether the complaint contains false allegations. That would allow her to collect the money directly from the person or persons behind the complaint, Sawicki said.

It also would, possibly, allow the city to collect costs related to staff time spent providing information related to the complaint, she added.

“I want to know how much it cost the city,” Sawicki said. “I want to know the manhours.”

Leon said Wednesday there was no ill intent behind the complaint; the question for the Commission on Ethics is simply whether Sawicki should have reported gifts she is alleged to have received on state-required disclosure forms.

“Absolutely not,” Leon said of any “reckless disregard.” “It was purely a question of whether it needs to be reported. It’s that simple. The Ethics Commission clearly states that if we have a gift over $25 that’s not from a spouse or a relative we have to report it.”

Leon filed the 50-plus page complaint that alleges that Sawicki did not properly report gifts received during a relationship and that she also failed to disclose possible conflicts of interest. After the issue was brought to his attention, Leon first brought the question to City Council. When Council indicated it was more a matter for the state, Leon sent the complaint to the Florida Commission on Ethics for its review, he said.

“It had nothing to do with trying to attack someone, it’s a question of ethics, whether they (gifts) need to be reported or not, it’s that simple,” he said.

The complaint, filed in August 2016, is still pending.

Meanwhile, the Florida Department of Law Enforcement has confirmed that the Cape Coral mayor’s office became the subject of an investigation that began this summer. Sawicki said she was told the FDLE investigation is an offshoot of the complaint filed with the Florida Commission on Ethics.

FDLE officials said Thursday the matter was still an active investigation and as such they could neither provide details or otherwise comment on its status.

The Office of the Attorney General has issued opinions related to reimbursement for costs related to ethics complaints that are dismissed due to lack of probable cause or found to be unwarranted after investigation. According to those opinions, for Sawicki to receive reimbursement from the city, Council would need to determine that the complaint was filed as a result of action in her official capacity from actions rising from duties performed on behalf of the city.

Only Council can make that determination.

“While a question may be raised as to the public purpose to be served in making such an expenditure of municipal funds, such a determination is one which must be made by the city council and cannot be delegated to this office,” one opinion from the The Florida Office of Attorney General states.

The process and criteria used by the Commission on Ethics is much more detailed.

Reimbursement for attorney’s fees and other expenses is not automatic but follows a process similar to that used to determine whether there is probable cause to move forward with an ethics complaint such as the one filed by Leon. But unlike the process used following a citizen-lodged ethics complaint, the full burden of proof by an official seeking reimbursement is on that official.

“Their petition has to demonstrate that the complaint was filed with the knowledge that it contained false allegations with relation to the ethics code,” said Kerrie Stillman, spokesperson for the Florida Commission on Ethics. “There is a high standard there.”

It is the similar to the criteria a public official must meet to prove libel – that the person filing the complaint had personal knowledge that one or more false allegations were included in the complaint or that the person filed it with reckless disregard that the allegation or allegations were false, she said.

It’s not enough to have the complaint dismissed either before probable cause is found or after the investigation is conducted and results in no finding that an ethical violation has occurred.

The reason behind this standard is that the Commission on Ethics does not initiate complaints; it investigates those filed, mostly by residents, she said.

“It’s a high threshold,” Stillman said. “In Florida we’re dependent on citizens to bring complaints before the commission, the commission cannot bring complaints to investigate. It’s a balance – you don’t want it (the possibility of being ordered to pay costs) to have too much of a chilling effect. There has to be knowledge of one of more false allegations or with reckless disregard for the false allegation.”

Should the Commission on Ethics ultimately determine that Sawicki committed no ethical violation in relation to the gifts allegedly received and not disclosed, she would need to petition the Commission. The next step would be for the Commission to find there is sufficient cause to believe the complaint was filed with reckless disregard. A full evidentiary hearing would then be conducted by an administrative law judge with the Division of Administrative Hearings. Both sides – the person seeking attorney fees and other costs incurred in fighting the dismissed complaint and the party accused of the maliciously filing it – would present their case. The administrative law judge would then determine if the official met the stringent burden of proof.

If so, that finding would come back to the Commission on Ethics for final action.

Petitions for reimbursement at the state level are rare.

“Only a few a year, maybe,” Stillman said.

Of the 220 complaints and referrals received in 2016, 81, or 37 percent, were dismissed for lack of legal sufficiency; two were dismissed “because the public interest would not be served by proceeding further;” and 132, or 60 percent, were ordered to be investigated, according to the Commission on Ethics 2016 annual report. Five remained pending a legal sufficiency determination.

There were nine petitions for costs and fees. Four were dismissed. Five were ordered to hearing.

In 2015, there were two petitions for costs and fees. One was dismissed and one was settled.

Sawicki said she expects to have a state finding on the ethics complaint by the middle of next month.

“I will know on or before Dec. 18 what the advocate for the Commission recommends,” she said.

That advocate could recommend dismissal of the complaint for a variety of reasons including no probable cause that a violation occurred, a lack of jurisdiction by the Commission, or a lack of legal sufficiency. The advocate could also recommend a finding of probable cause, in which case the complaint could move to the next step, a formal investigation and hearing.

In either case, the Commission on Ethics will consider, and then accept or reject, its advocate’s recommendation.

Sawicki said she expects that Commission consideration will come at the Commission on Ethics’ January meeting.