Article Courtesy of The Miami
June 10, 2016
In the latest development in a years-long ethics case
against former U.S. Rep. David Rivera, an attorney for the Miami
Republican argued before an appeals court on Tuesday that the speaker of
the Florida House has no legal authority to impose penalties on former
state lawmakers who violate ethics rules while in office.
Seeking to overturn ethics violations against Rivera, his attorney
Leonard Collins argued that it’s unconstitutional for state law to give
authority to the House speaker or Senate president in doling out
punishment for former lawmakers.
And even if
appeals judges rule that that practice is OK, Collins
argued that Rivera’s case should still be reconsidered
because, he said, the Florida Commission on Ethics
violated Rivera’s due process rights by committing
“procedural errors” when it handled Rivera’s case.
An attorney for the commission defended how the case was
handled but, in a painfully awkward moment, she offered
no response when the three-judge appeals panel
questioned why it’s allowable for the House speaker to
have sole discretion in executing punishments for former
House members — but a decision by the full House is
needed to penalize current lawmakers.
“I can’t answer that,” assistant attorney general
Elizabeth Miller said during the hearing before the
First District Court of Appeal in Tallahassee.
She said that’s
just how the law is written.
David Rivera, then serving in the U.S. House of
Representatives, spoke to reporters in 2012 after being slapped
with a slew of Florida ethics violations.
It seems to be a stark separation-of-powers problem, having a member of
one branch fulfilling the function of another branch.
Judge T. Kent Wetherell II of Florida’s First District Court of Appeal
“I don’t believe there is a separation-of-powers problem,” Miller said,
adding later: “That was the way the Legislature set it up; it’s the
But the judges didn’t seem convinced.
“It seems to be a stark separation-of-powers problem, having a member of
one branch fulfilling the function of another branch,” Judge T. Kent
Wetherell II said.
Collins argued the current law should be shot down and rewritten to give
authority to a court, which he said would be a more appropriate venue to
deal with penalties for former lawmakers who violate the law.
“There’s nothing like this around the country,” Collins said. “No
speaker of the House has authority to dole out penalties against former
members. That’s a unique feature in Florida statute.”
An administrative law judge last year recommended Rivera be forced to
pay $57,800 in fines and restitution for breaking Florida ethics rules
when he was a state legislator more than six years ago. The judge
determined Rivera failed to properly disclose his income and
double-billed taxpayers by accepting state reimbursement for travel
previously paid for by his campaign account.
Rivera, who has denied wrongdoing, served in the statehouse from
2002-10. He was elected to Congress in 2010 but lost his re-election
bid. He’s campaigning this year to return to the state House in District
The state ethics commission agreed with the administrative law judge’s
recommendation last year, putting the case in the hands of House Speaker
Steve Crisafulli, whose responsibility it is to decide whether Rivera
would be penalized.
But Rivera appealed his case last summer. The appeals court Tuesday
offered no immediate ruling and probed both attorneys with tough
Judge James R. Wolf, who presided over the 45-minute hearing, said
Collins’ challenge of the House speaker’s power was a “very, very
important issue,” and he chided attorneys on both sides of the case for
glazing over it in briefs prepared in advance of the hearing.
“You almost dealt with it as a throwaway,” Wolf said, suggesting the
judges might order the attorneys to write more detailed legal arguments
before the court issued a ruling.
The judges said, in the court filings, Collins didn’t appear to dispute
the amount of fines that the administrative law judge and the state
ethics commission said Rivera should pay. But Collins did question it
Tuesday, accusing the commission of using evidence against Rivera that
was submitted for a different purpose — a Miami-Dade County criminal
investigation that resulted in no charges — but that later resulted in
the steep fine amount.
Miller, the attorney for the commission, disagreed, saying Rivera and
his attorney had plenty of chances to make their arguments. She argued
that the order punishing Rivera should be upheld.
Rivera attended the hearing and left the courtroom immediately as it
ended, making him unavailable for comment.
Separate from the ethics case, Rivera remains under federal criminal
investigation into an unlawful 2012 campaign-finance scheme he’s
suspected of orchestrating. He’s yet to be charged and has repeatedly
denied being under investigation, though a judge twice forced
prosecutors to identify Rivera in open court as “Co-Conspirator A.”