State Attorney Jeff Ashton grasping at straws & overcharging AGAIN?
by Jacob Engels
On Thursday, a grand jury in Orange County announced the indictment of former representative Chris Dorworth, his girlfriend – former FDOT executive Rebekah Hammond, and former board member Scott Batterson for violation of Florida’s Sunshine Laws.
This is a 2nd degree misdemeanor charge, equal in the words of blogger Peter Schorsch to “A second degree misdemeanor for violating Florida’s Sunshine laws is just as wrong, in the court’s eyes, as disorderly intoxication or loitering, or driving with a suspended license”. Because of the low level of the alleged offense, none was arrested.
The state hasn’t released what they say Dorworth, Hammond and Batterson did yet, so we can’t argue the facts. What we can look at, though, are some rather obvious improprieties in the way they were charged in first place. While no details are public yet as to what prosecutors think happened, we have been told that the investigation in to the OOCEA has come to an end.
Batterson is a member of a board, and if another board member says he broke the Sunshine Law, there will be a legitimate framework for a case there. I don’t see how, under any possible interpretation of the law, that applies to Dorworth and Hammond.
First, let’s look at the overcharging of Hammond. According to news reports, she was a Government Affairs Liaison for the Florida Department of Transportation. This makes her a public employee, or as the statute contemplates it, this makes her a public official.
Florida’s Sunshine Law isn’t very long, and it is pretty descriptive. It leaves little to the imagination, and as it contemplates punishments for violations of these crimes, it leaves no discretion to the prosecutor. Here is a basic summary of it:
If you are a public official, like Rebekah Hammond was, or like FDOT Secretary Ananth Prasad, the only punishment that can be handed down to you for violating the Sunshine Law is a non-criminal civil citation. This is the legal equivalent of receiving a citation for littering. If you are a member of a board or authority, you can be charged with a misdemeanor and you can serve up to 60 days in jail and be fined up to $500.
Here’s the language:
(3)(a) Any public officer who violates any provision of this section is guilty of a noncriminal infraction, punishable by fine not exceeding $500.
(b) Any person who is a member of a board or commission or of any state agency or authority of any county, municipal corporation, or political subdivision who knowingly violates the provisions of this section by attending a meeting not held in accordance with the provisions hereof is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
This is it. This is all the language the statute sets forth for punishments of the Sunshine Law. There is no other section that contemplates any of this.
So, as it pertains to Rebekah Hammond, how did the state attorney and grand jury determine she was guilty of 3b, when it is very clear that she is a public officer, and not a member of a board or commission? Hammond IS (was) a public officer. Hammond is not and has never been a member of a board or commission. How did they charge her under 3b, and not 3a?
If Rebekah Hammond walked in to the grand jury and proudly announced that she nefariously organized and executed a flagrant Sunshine Law Violation, detailing to them the lengths she went to in doing so, the law exclusively provides for her to be charged with a noncriminal infraction, punishable by a fine of up to $500. A serious question that will likely be answered in the near future is “how did the grand jury indict her of violating 3b when she is so clearly, unambiguously covered in the language of 3a?”
We won’t know until they talk to the court whether they claim to be innocent or guilty, but I don’t see how, under the loosest interpretation of a clearly written statute, Hammond should have been charged with a misdemeanor offense. If she did, somehow, break the Sunshine Law, it should have been a non-criminal fine, and not a misdemeanor charge.
Also, while we don’t know the facts, we have to assume that if Ms. Hammond was a “conduit”, she was a conduit to her boss, local DOT secretary Noranne Downs. But Downs wasn’t charged, so how could Hammond have broken the Sunshine Law if the person, her boss on the board, didn’t? Hmmmmm.
The circumstances of Dorworth’s indictment are even more bizarre. There is NO language in the Sunshine Law that provides for the prosecution of a private citizen, or as Ashton referred to Dorworth “a conduit”. It doesn’t appear from my research that anybody has ever made this stick before, either.
I found this list, updated through 2005, of all the convictions that have happened in the history of the Sunshine Law, and not one… from 1977 to 2005… has a public official like Hammond or a private citizen like Dorworth ever being convicted of violating the Sunshine Law. Like, not once… ever.
Ashton, himself, even opined on the freedom of a private citizen to work a board without violating Sunshine Law. Dorworth, a lobbyist with Florida powerhouse Ballard Partners, is a private citizen because he lost his election in 2012.
Ashton wrote in the 8/28/2013 Textgate findings the following. Certain irrelevant points are omitted and the emphasis is mine. Here’s a link to the entire report if you want to read it.
“Florida law generally prohibits elected officials from communication privately regarding matters that have or may come before them as a board or commission. These prohibitions also apply to those officials using others as conduits to facilitate any such communication. An example would be Commissioner A using a staff member to communicate his position on an issue to the staff member for Commissioner B, knowing that the information would find its way to Commissioner B.
What the law does not prohibit, however, is private citizens (sic) soliciting information from one elected official and communicating that information to another elected official. Nor does the state prohibit an elected official from accepting that information and considering it in his or her decision making process. The key issue is who initiated or solicited the communication.
…In which a citizen, who felt the initiative was bad public policy, devised a method to essentially kill the measure by delaying it, thereby keeping it off the upcoming ballot. He then communicated his plan to a Commissioner he felt would be sympathetic, obtained that Commissioner’s support for the measure, then communicated the plan and the first Commissioner’s support to other commissioners to obtain their support and so on and so on. Whether the citizen’s plan was consistent with other laws related to the power and authority of the commission is a matter for the courts and not for this office to decide; but clearly the tactic violated no criminal statutes.”
Let me state again that Jeff Ashton, the state attorney who led the grand jury that led to these indictments, wrote these exact words less than one year ago.
Why would the law apply differently to Dorworth, a private citizen and lobbyist, then they do Lew Oliver, a private citizen and chairman of the Orange County Republican Party, who Ashton was referring to in the Grand Jury report I quoted above?
Oliver didn’t like the “Paid Sick Leave” ballot item and said so. Being that this investigation came because the OOCEA board chair thought board members violated the Sunshine Law regarding the termination of former OOCEA ED Max Crumit, maybe Dorworth didn’t like Crumit and worked board members to get him fired.
Serious question – how would this be different in any way?
Is it the opinion of the grand jury that not liking a public official and working to terminate him is now criminal?
If this opinion holds, is this a marked change in the US political system… where up until now you had a constitutionally guaranteed right to NOT like your government leaders and work to change them without fear of punishment from the government?
But hey, maybe that wasn’t what happened here. Maybe, as crazy as it sounds, this was already addressed by the state’s top legal officer: the Attorney General. Being that the state attorney AND the statute clearly say that what was charged is impossible, it occurred to me that maybe there is some well regarded Attorney General opinion that Ashton relied on. While they are not legally binding, a state attorney might think that a former legislator/lobbyist like Dorworth would be aware of conduit rules existing… if they exist.
So I checked Attorney General Pam Bondi’s site here.
I typed in Sunshine Law and got 378 responses. I reviewed all 378, and didn’t find anything that would speak to what Ashton and the grand jury indicted them for: aiding and abetting or being a “conduit”. Then I typed in “Sunshine Law” and “Conduit”. This limited the responses down to four, and not surprisingly none of those were remotely close to the subject matter at hand.
Then I discovered that the Attorney General actually publishes a manual on the Sunshine Law. Read it here.
Surely, this is where Dorworth and Hammond were cooked. NOPE. This is what the Criminal Penalties section says (page 47):
1. Criminal penalties
A KNOWING violation of the sunshine law is a misdemeanor of the second degree. section 286.011(3)(b), F.s. A person convicted of a second degree misdemeanor may be sentenced to a term of imprisonment not to exceed 60 days and/or fined up to $500. sections 775.082(4)(b) and 775.083(1)(e), F.s. The criminal penalties apply to members of advisory councils subject to the sunshine law as well as to members of elected or appointed boards. ago 01-84 (school advisory council members)
WOW. Yet again, we are told that criminal penalties apply to members of advisory councils and and member of elected or appointed boards…not private citizens or FDOT staffers.
Also noteworthy… a violation must be “knowing”. How could Dorworth and Hammond know they were breaking the law when statutes, attorney general opinions, attorney general manuals are all 100% silent on it? Isn’t a requirement for knowingly breaking a law having that law actually exist, and… you know… be written down somewhere?
So, to recap:
– No statute exists that permits a private citizen, or lobbyist, to be punished under Florida’s Sunshine Law no matter how egregious the suggested violation of the law is.
– Not one of the 378 Florida Attorney General opinions that reference the Sunshine Law speak to this in any way.
– Nowhere in the Attorney General’s published manual does it discuss “conduits” or private citizens being involved.
– For a penalty to be handed down, somebody had to “knowingly” break a law that can be found no where.
– From 1977 to 2005, there is not one single example of a staffer or private citizen EVER being convicted under Florida’s Sunshine Law. I did exhaustive search engine and Lexis Nexis searches to learn about 2005-2014, but could find none. As such, it appears that if EITHER Hammond or Dorworth were to be convicted of anything, they would be the very first in the history of the state of Florida to meet that fate as a staffer or a public official.
– Attorney General Jeff Ashton has affirmatively stated that private citizen is free to talk to commissioners, spread an idea, count votes and share a vote count.
– Rebekah Hammond, in her role as a public official as a former employee of FDOT, was very clearly charged in the wrong section, and being that she was charged with a misdemeanor when it very obviously should have been a non-criminal infraction, Hammond was clearly overcharged.
– The state and grand jury didn’t indict FDOT Secretary Noranne Downs, meaning they obviously didn’t think she broke the Sunshine Law. Therefore the grand jury somehow found a way to think Hammond did, but the person who actually votes who Hammond worked for… didn’t.
Again, in fairness to the state, we don’t know what they say Hammond and Dorworth did. But WHATEVER Dorworth and Hammond did, it’s pretty tough to understand how what they did was illegal. A prominent central Florida lobbyist put it this way:
“If it is against the law to share vote tallies, coordinate who will make motions and seconds or to ‘work a board’ for a client, then Jeff Ashton just said the lobby corps of Tallahassee and the numerous land use and business consultants that work cities and counties are a bunch of criminals. Doesn’t the US Constitution say something about having the ‘right to petition your government for redress’? I guess those protections don’t exist in Orange and Osceola Counties.”
I don’t claim to be a lawyer, or even have a lawyer’s understanding of this. What I can’t figure out, though, is how you charge people with something when you have, quite literally, NO AUTHORITY TO DO SO. We will know more after the arraignment, and I will update you on the curious choice to indict two people that at first blush aren’t contemplated in the law at all.
Jacob Engels, is the Founder of East Orlando Post & Seminole County Post. He is a seasoned political operative who has led numerous statewide political groups and has worked on several high-profile local, statewide, and national races. Jacob has been interviewed on national television & radio programs, with his work having been featured in the Orlando Sentinel, New York Times, Washington Post, Miami Herald and other publications nationwide. He can be reached at firstname.lastname@example.org