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.
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 Legislature’s authority.”
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 118.
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 questions.
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.”