JOHN RILEY

v.

MIAMI DADE COMMISSION ON ETHICS AND PUBLIC TRUST

NOT FINAL UNTIL DISPOSITION

OF TIMELY-FILED MOTION FOR

REHEARING OR CLARIFICATION

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT, IN

AND FOR MIAMI-DADE COUNTY,

FLORIDA. APPELLATE DIVISION

CASE NO. 2021-000050 AP 01

JOHN RILEY,

Petitioner,

vs.

MIAMI-DADE COMMISSION ON

ETHICS AND PUBLIC TRUST,

Respondent. _________________________________________/ Opinion Filed: February 5, 2024 On Petition for Writ of Certiorari from a decision of the Miami- Dade Commission on Ethics and Public Trust.

James H. Greason, Esq., for Petitioner. Loressa M. Feliz, Esq., Miami-Dade Commission on Ethics and Public Trust, for Respondent.

Before SANTOVENIA, PERKINS and ARECES, R., JJ.

SANTOVENIA, J.

[*2] This matter is before the Court on a petition for writ of certiorari (initially filed as an appeal by Petitioner) from a Final Order rendered by the Miami-Dade Commission on Ethics (“Commission”) in an ethics proceeding. Petitioner was charged with violating two provisions¹ of the Ethics Code and adjudicated guilty. Jurisdiction and statute of limitations Section 2-11.1(i)(2) states:

Compliance with the financial disclosure provisions of Chapter 112 (Part III), Florida Statutes, as amended, or with the provisions of Article II, Section 8 of the Florida Constitution, as amended by the voters on November 2, 1976, and any general laws promulgated thereunder, shall constitute compliance with this section.

Count Three alleged a violation of Section 2-11.1(j) of the Ethics Code entitled “Conflicting employment prohibited” because Petitioner was a Commissioner with Opa-locka while simultaneously being employed by Gardens Apartments to resolve problems with local government.

Section 2-11.1(j) states:

Conflicting employment prohibited. No person included in the terms defined in subsections (b)(1) through (6) and (b)(13) shall accept other employment which would impair his or her independence of judgment in the performance of his or her public duties. [*3] Petitioner argues that the Commission lacked jurisdiction over the complaint. Section 2-1068 of the Ethics Code states: “The jurisdiction of the Ethics Commission shall extend to any person required to comply with the County or municipal Code of Ethics Ordinances, Conflict of Interest Ordinances, Lobbyist Registration and Reporting Ordinances, Ethical Campaign Practices Ordinances or Citizens’ Bill of Rights.” (emphasis added). Section 2-1074(p) of the Ethics Code states: “[t]he Ethics Commission shall, within eighteen (18) months of the filing of a complaint, render a final order disposing of said complaint.” (emphasis added). Petitioner presents two threshold arguments as to why the Commission’ had no jurisdiction over the Petitioner. Petitioner first argues that under Section 2-1068 of the Code, jurisdiction extends only to sitting officials and that former officials are not required to comply with the Conflict of Interest and Code of Ethics Ordinance. Under Section 2-1068 of the Ethics Code, Petitioner argues that jurisdiction only extends to persons “required to comply” with the Code, and because the complaint was filed on February 21, 2019, after Petitioner had already left office, he was not required to comply [*4] with the Code. Accordingly, Petitioner argues that the Commission’s jurisdiction did not extend to Petitioner. Petitioner cites Wright v. Fla. Comm’n on Ethics, 389 So. 2d 662 (Fla. 1st DCA 1980) in support of that proposition. However, Wright is distinguishable in that it pertained to a schoolteacher who took a leave of absence without pay, and then was reelected to a position on the school board. Id. at 663. The district court held that the teacher was not an employee of the school board, and was thereby not in violation of the statute prohibiting an employee of a state agency or political subdivision of state from holding office as a member of a governing board which is his or her employer. Id. Respondent correctly argues that the Petitioner was a sitting City Commissioner on or about January 12, 2017 when he allegedly interfered or attempted to interfere with an investigation into a possible unlawful eviction. At the time of the alleged violations in 2017, Petitioner was thus required to comply with the County Ethics Ordinances, including the Conflict of Interest Ordinances. Section 2- 1074 (x) Statute of limitations provides, in pertinent part: Unless provided otherwise in a County or municipal Code of Ethics Ordinance, Conflict of Interest Ordinance, Ethical Campaign [*5] Practices Ordinance or Lobbyist Registration and Rating Ordinance, no action may be taken on a complaint filed more than three (3) years after the violation is alleged to have accrued unless a person, by fraud or other device, prevents discovery of the violation. Where the allegations are the subject of a personnel proceeding or where the complainant is required to exhaust his or her administrative remedies prior to filing a complaint, the statute of limitations shall be tolled until the termination of said personnel proceeding or the exhaustion of administrative remedies.

(emphasis supplied) The Commission may consider complaints regarding Section 2- 11.1 of the Ethics Code as long as the complaint is filed no more than three years after the alleged violation has taken place. See Section C, 3.2(a)(1) & (b)(2), Miami-Dade Commission on Ethics and Public Trust Rules of Procedure; Art. LXXVIII, Sec. 2-1074(x), Miami-Dade County Code. Thus, the Commission’s jurisdiction extends to any person required to comply with the county or municipal code of ethics, conflict of interest ordinance, lobbyist ordinances, as well as ethical campaign practices ordinances, and the citizens Bill of Rights. Accordingly, the Commission had jurisdiction over the Petitioner at the time of the filing of the complaint on February 21, 2019. [*6] Second, Petitioner argues that jurisdiction expired before trial and entry of the Final Order. Petitioner contends that the Commission’s enabling ordinance imposes a jurisdictional time limit for adjudication of a complaint and that subject matter jurisdiction lapses upon expiration of the time limit in Section 2-1074(p). Petitioner maintains that jurisdiction expired because the 18-month period from the date of filing of the complaint ended on August 21, 2020. Petitioner maintains that the Final Order which was entered June 9, 2021 is therefore untimely and is void. Respondent argues that Section 2-1074(p) is intended to avoid unnecessary delay in the prosecution of a complaint and to avoid any prejudice to the Petitioner. The language of that section supports that conclusion as the text does not specifically refer to jurisdiction or to a loss of jurisdiction. Moreover, Petitioner requested five continuances, as follows: • March 10, 2019 – Petitioner filed a Motion to Continue Probable Cause Hearing (set for March 13, 2019) (R. at 21); • April³, 2019 – Petitioner filed a Motion to Continue the Probable Cause Hearing (set for April 10, 2019) (R. at 25); • May¹, 2019 – Petitioner filed a Motion to Continue Probable Cause Hearing (set for May 8, 2019) (R. at 35); • At the July 17, 2019, Commission Meeting. The Petitioner requested a continuance until the September meeting (Appellee App. at 006); [*7] • A December 11, 2019, email from Petitioner’s counsel states that Petitioner was too ill to attend the meeting that morning, and counsel could not attend because he was outside the U.S. (Appellee App. at 107).

Petitioner’s requested continuances led to an eight-month delay in the progression of the case. While there is no dispute as to the good cause for the requested continuances, it seems unreasonable and against estoppel principles that a petitioner would be able to delay a case for such a lengthy amount of time and then benefit from the delay he caused by claiming that the Commission’s jurisdiction had ended. Constitutionality A petition for writ of certiorari is not the proper procedural vehicle to challenge the constitutionality of the ordinance. See Somerset Academy, Inc. v. Miami-Dade Cnty. Bd. of Comm’rs, 314 So. 3d 597, 599 (Fla. 3d DCA 2020); First Baptist Church of Perrine v. Miami-Dade Cnty, 768 So. 2d 1114 (Fla. 3d DCA 2000). Therefore, the Court declines to address the constitutionality arguments. Preemption While Petitioner argues that enforcement by the Respondent is preempted by the Florida Constitution, and that enforcement lies [*8] with the Florida Commission on Ethics, there is no preemption issue here. Petitioner bases his preemption argument on Scott v. Hinkle, 259 So. 3d 982 (Fla. 1st DCA 2018), which is inapposite as it addressed the issue of whether the Florida Commission on Ethics or the circuit court had jurisdiction to review a complaint, and not whether the state ethics commission or the local ethics commission had jurisdiction. Id. at 984-985. Respondent correctly maintains that there is no preemption and cites to a Florida Attorney General opinion which found that no express preemption existed to preclude local legislation in the area of ethics, so long as the legislation was consistent with the State Ethics Code. See Op. Att’y Gen. Fla. 91-89 (1991). I agree. Standard of Review “[C]ircuit court review of an administrative agency decision is governed by a three-part standard of review: (1) whether procedural due process is accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence.” Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). Procedural due process [*9] “Generally, due process requires fair notice and a real opportunity to be heard and defend in an orderly procedure before judgment is rendered.” Richard v. Bank of America, N.A., 258 So. 3d 485, 487 (Fla. 4th DCA 2018).

Here, the Commission filed a sworn complaint and followed procedural rules regarding the disposition of its complaint. The Commission tried Petitioner before a panel of Commissioners where Petitioner was allowed to present witnesses and evidence, to crossexamine witnesses, and to be informed of and dispute all facts upon which the violations were based. Thus, Petitioner was accorded due process. Essential requirements of law Having found no procedural due process violation, the second prong of the test to be considered is whether the essential requirements of law were followed. In Haines, supra., 658 So. 2d at 527, the Supreme Court held that “applied the correct law” is synonymous with “observing the essential requirements of law.” Further, to warrant relief, there must be “an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny [*10] perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice.” Id. Section 1074(p) [Public order imposing penalty] states, in pertinent part: “[t]he public report and final order shall include a determination as to whether the violation was intentional or unintentional.” Regarding costs assessed on both counts, the Final Order fails to make any finding of intentional violation. Code §2-11.1 (cc). Appellee admits in its response brief that “[i]t is clear through the language of the Final Order, that the Commission did not find that Appellant’s [Petitioner’s] violations intentional”. Also, the Court notes that the Respondent conceded during oral argument that both violations were unintentional. A finding of intentional conduct - which is wholly missing from the Final Order - is relevant to two elements of costs. See §2-11.1 (cc)2, County Code. First, on a finding of intentional violation, the 2 §2-11.1 (cc) Proceeding before Ethics Commission, provides that: A finding by the Ethics Commission that a person has violated this section shall subject said person to an admonition or public reprimand and/or a fine of five hundred dollars ($500.00) for the first such violation and one thousand dollars ($1,000.00) for each subsequent violation. Where the Ethics Commission finds that a person has intentionally violated this section and determines that a fine is appropriate, said person shall be subject to a fine of one thousand dollars ($1,000.00) for the first such violation and two thousand dollars ($2,000.00) for each subsequent violation. Actual costs incurred by the Ethics [*11] fine is increased from $500 to $1000 for a first violation and from $1000 to $2000 for each subsequent violation. In addition, “[a]ctual costs incurred by the Ethics Commission, in an amount not to exceed five hundred dollars ($500.00) per violation, may be assessed where the Ethics Commission has found an intentional violation of this section.” It is clear, however, that actual costs incurred by the Ethics Commission are only recoverable upon a finding of an intentional violation. Where no intentional violation was found below, the Commission failed to follow the essential requirements of its own Code and it was improper for the Commission to include the assessment of actual costs incurred by the Ethics Commission in the Final Order. While Petitioner raises several other issues, none of those issues demonstrates that the essential requirements of law were not Commission, in an amount not to exceed five hundred dollars ($500.00) per violation, may be assessed where the Ethics Commission has found an intentional violation of this section. The Ethics Commission may also order the person to pay restitution when the person or a third party has received a pecuniary benefit as a result of the person's governed by an administrative order adopted by the County Commission and rules of procedure promulgated by the Ethics Commission. (emphasis added).

[*12] followed. With the exception of the assessment of actual costs, the Commission adhered to the essential requirements of law in the issuance of its Final Order. Competent substantial evidence The third prong of the test for this Court to consider is whether there is competent, substantial evidence to support the Commission’s decision. In De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957), the Florida Supreme Court described competent substantial evidence as “such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred” or such relevant evidence that a “reasonable mind would accept as adequate to support the conclusion reached.” At the May 7, 2021, hearing, the Advocate presented the testimony of Officer Daniel Kelly, Corporal Darron Chiverton, Corporal Lawrence Holborow, Vivian Smith (Complainant) and Petitioner. At the May 21, 2021, hearing, Petitioner presented the testimony of himself, former Opa-locka City Manager Yvette Harrell, and the former property manager for the Gardens Apartments, Magdiel Rodriguez. The Commission also relied on certified and noncertified copies of Appellant’s 2015, 2016, and 2017 financial [*13] disclosure forms (State Form¹ forms) as well as a Form 1X, an amendment to Appellant’s 2017 financial disclosure form. There was ample competent substantial evidence in the record to support the Commission’s decision. For the foregoing reasons, the Petition is GRANTED, as follows. The Final Order is quashed to the extent that it assesses $1000 for investigative costs incurred by the Ethics Commission. The Petition is DENIED as to the remainder of the Final Order. ARECES,R., J., concurs in result only PERKINS, J. concurring, I agree that the Miami-Dade Commission on Ethics and Public Trust (“Commission”) had jurisdiction on February 21, 2019 when it filed its Complaint. I also agree that, in light of the Commission’s concession that Respondent’s violation was unintentional, the Commission departed from the essential requirements of law when it imposed actual costs. I question, however, whether the Commission still had jurisdiction when it entered its June 9, 2021 Final Order. Because the parties did not sufficiently brief this issue, I concur in result only. [*14] The Commission’s jurisdiction extends to individuals “required to comply” with, inter alia, Miami-Dade County’s Code of Ethics Ordinances: The jurisdiction of the Ethics Commission shall extend to any person required to comply with the County or municipal Code of Ethics Ordinances, Conflict of Interest Ordinances, Lobbyist Registration and Reporting Ordinances, Ethical Campaign Practices Ordinances or Citizens' Bill of Rights.

Miami-Dade Code § 2-1068; accord id., § 2-11.1(y). Here, even after Petitioner’s term ended in November 2018, Petitioner was still required to comply with financial reporting requirements in the Code of Ethics Ordinances. See Miami-Dade Code § 2-11.1(i)(1) (requiring the filing of certain financial information “no later than 12:00 noon of July 1st of each year including the July 1st following the last year that person is in office or held such employment”). Thus, the Commission had jurisdiction to file its complaint on February 21, 2019.

The Miami-Dade Code does not detail, however, what happens to the Commission’s jurisdiction when, while a complaint is pending, a person stops being a person required to comply with the ordinances referenced in § 2-1068. The Statute of Limitations in Section 2- [*15] 1074(x) certainly does not confer jurisdiction. See State v. Smith, 241 So. 3d 53 (Fla. 2018), affirming 211 So. 3d 176, 182 (Fla. 3d DCA 2016) (discussing the difference between statutes of limitations and subject matter jurisdiction).

Rule 3.2(b) of the Commission’s Rules of Procedure also does not confer jurisdiction. First, as the Commission acknowledged at oral argument, the Commission is a creature of County ordinance and does not have the power to confer subject matter jurisdiction on itself. Cf. WHS Trucking LLC v. Reemployment Assistance Appeals Com'n, 183 So. 3d 460, 462 (Fla. 1st DCA 2016) (“Florida agencies are creatures of statute and only have the authority and jurisdiction conferred by statutes.”); Agency for Persons With Disabilities v. Meadowview Progressive Care Group Home, 340 So. 3d 547, 551 (Fla. 1st DCA 2022) (“An administrative agency has only such power as granted by the Legislature and may not expand its own jurisdiction.”). Second, Rule 3.2(b) does not even purport to confer jurisdiction: b) The Commission will not consider a Complaint regarding¹) An allegation involving a matter outside of the jurisdiction of the Ethics Commission; [*16] 2) An allegation based on facts that occurred more than three (3) years before the date the sworn Complaint is filed. (Art. LXXVIII, Sec. 2-1074(x), M-D County Code) The plain text of this Rule establishes that the Commission will not consider a complaint unless it has jurisdiction and the complaint is timely. That is, Rule 3.2(b)(2) contemplates that there can be a circumstance when a complaint is timely but the Commission will not consider it because it lacks jurisdiction.

Because no one raised the issue of whether the Commission is divested of jurisdiction under § 2-1068 when a person is no longer “required to comply” with the ordinances listed in that section, it is not appropriate for the Court to address it.³ [*18] Copies Furnished to: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]