Dismissal of Ethics Complaint against Larry Magel

When the complaint was filed I refrained from public comment due to the ongoing nature of the proceedings.  Now that the State has found no legal basis for the allegations by Mr. Sacher that I misused my public position to endorse a group of candidates for election to the Marco Island City Council vs another group of candidates, I believe this is the proper time to comment.

I believed from the start that Mr Sacher’s complaint was invalid as I did not use any city resources to make my public position known.  I, as an elected city official, as well as any other american has the right of free speech, to advocate for or against any issue or person regardless if they are a private citizen or city councilor. The law does not allow me to use city resources, but after that limitation, I can make my position known to all that care to hear it. To attempt to limit anyones free speech by filing administrative complaints because one does not like what is being said runs counter to our Constitution and should be seen in the political context in which they were filed.

Larry Magel

PUBLIC REPORT AND ORDER DISMISSING COMPLAINT

On Friday, November 30, 2012, the Commission on Ethics met in executive session and considered this complaint for legal sufficiency pursuant to Commission Rule 34-5.002, F.A.C. The Commission’s review was limited to questions of jurisdiction of the Commission and of the adequacy of the details of the complaint to allege a violation of the Code of Ethics for Public Officers and Employees. No factual investigation preceded the review, and therefore the Commission’s conclusions do not reflect on the accuracy of the allegations of the complaint.

The Commission voted to dismiss the complaint for lack of legal sufficiency, based on the following analysis:

1. This complaint was filed by Laurence I. Sacher of Marco Island, Florida.
2.  The Respondent, Larry Magel, allegedly is Chair of the Marco Island City Council.
3. The Complainant, who is running for the Marco Island City Council, alleges that the Respondent has misused his office by actively campaigning against him and two other candidates for the City Council. It is alleged that he has made unsubstantiated charges against the Complainant and the other two candidates by distributing inaccurate information to condominium dwellers and country club members.
4. The allegations implicate Section 112.313(6), Florida Statutes, which provides:

No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31.

Section 112.313(6) prohibits a public official from corruptly using or attempting to use his official position or resources, or from corruptly performing his official duties, to obtain a special privilege or benefit for himself or others. The term “corruptly” is defined by Section 112.312(9),

Florida Statutes, to mean

done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties.

5. The allegations are legally insufficient to indicate a possible violation of Section 112.313(6). There are no allegations that would indicate that the Respondent used his office or any City resources to campaign against the Complainant or the other candidates. In In re John Curlee, Commission on Ethics Complaint No. 89-45, we found that a highway patrolman’s wearing of his uniform while appearing in a television commercial for a Florida Senate candidate did not violate Section 112.313(6). See also CEO 91-38, in which we found that a city council member did not violate Section 112.313(6) by creating and using stationery similar to the city’s official letterhead but paid for with private funds, for campaigning, fund-raising, and other personal purposes. Here, where there is no indication that the Respondent used any public resources in sending out his communications to condominium owners or country club members, the allegations fail to indicate a possible violation of Section 112.313(6), Florida Statutes.

Accordingly, this complaint is hereby dismissed for failure to constitute a legally sufficient complaint with the issuance of this public report.

ORDERED by the State of Florida Commission on Ethics meeting in executive session on November 30, 2012.