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Court overturns commission penalties in Underhill case; Eleventh Circuit hears lobbying-ban appeal
Summary
General Counsel Steve Zukowski reported that the First District Court of Appeal vacated the commission’s final order in the Underhill case and remanded with directions to adopt the ALJ’s recommended order; the Eleventh Circuit also recently heard argument in the Garcia v. Stillman appeal of the in-office lobbying ban.
General Counsel Steve Zukowski briefed commissioners on two litigation developments affecting the commission.
Underhill v. Commission on Ethics: Zukowski reported that the First District Court of Appeal issued an opinion setting aside the commission’s final order in the matter of Douglas Underhill and directing the commission to adopt the administrative law judge’s recommended order as the new final order. The court rejected the commission’s earlier findings that (1) a disclosure of transcripts alone constituted a prohibited benefit and (2) that general solicitation on a GoFundMe was prohibited; the court also found the commission failed to comply with statutory requirements when it increased a civil penalty from $5,000 to $35,000 without separately stating reasons particular to each violation and citing the record.
Zukowski said the court concluded the commission had "abused its authority at the final hearing" by failing to address penalty increases with particularized reasons tied to the record. The case will return to the commission for further action consistent with the court’s directions; Zukowski said staff expects to present a conforming final order at the commission’s next meeting.
Garcia v. Stillman: Zukowski also updated commissioners on federal litigation over Florida’s in-office lobbying ban (Article II, Section 8(f)(2) of the Florida Constitution). The Eleventh Circuit recently heard oral argument on the appeal of a district-court injunction that had barred enforcement of the in-office lobbying ban against the broader class of officers; the circuit stayed the injunction for all public officers except the named plaintiff pending appeal. Zukowski said oral argument took place on Feb. 26 and that the commission’s counsel presented arguments before the panel; a decision is expected in the near future.
Ending
Zukowski told commissioners staff would present revised orders or follow-up materials as directed by the courts at future meetings and will keep commissioners informed of appellate rulings as they are issued.
