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What Might Have Been - 12/22/14

The Rule of Law - 12/05/14

What About Forfeiture? - 11/30/14

What Should the Commission Do About Jean Robb? - 11/12/14

A Conspiracy of Truth - 11/08/14

Jean Robb v. the IG - 10/08/14 (Updated)

What Might Have Been - 12/22/14

For all sad words of tongue and pen, the saddest are these, "It might have been." ~ John Greenleaf Whittier

2014 was not the best year for Mayor Jean Robb or for the city in terms of honorable government. Pursuing complaints about her alleged misconduct, Broward County's top watchdog agency, the Office of Inspector General, conducted a multi-faceted investigation and concluded that there is probable cause to believe Her Honor had violated the city charter on several occasions and may have violated both the city and state ethics codes. Still, Mayor Robb remains defiant and proclaims her innocence.

Of course, Mayor Robb has every right to maintain her innocence. Nothing, at this point, has been formally proved although the evidence is compelling as it stands. If the gravamen of the complaint against her is that she has failed to live within the system of laws that govern the city and the state, then to be consistent and fair, we must grant to Mayor Robb the right to deny and give her, so to speak, her day in court to disprove the charges.

It is not opinion, but simply fact, that if she is found guilty of one or more of these transgressions or if she is criminally charged (by no means assured), she could be suspended or removed from office.

It would be tragic if Jean Robb were to be removed from office in disgrace. But the greater tragedy is that none of this had to happen.

If she had come into office and conducted herself in a statesman-like and ladylike manner, it might have been different. If she had used a little common sense and worked through the city manager, as the city charter dictates, it might have been different.

I won't belabor the point, but I can think of several instances in which things could have been different.

2015 will be different. Will Jean Robb survive? My own opinion, she'll be out of office long before her term expires. And she will hardly be venerated as "It might have been."

The Rule of Law - 12/05/14

On Dec. 2, 2014, after conducting a public hearing, the city commission of Deerfield Beach voted 3-2 to censure Mayor Jean Robb for her misconduct in office, as outlined in a report by the Broward Office of Inspector General. The report can be found on the OIG website.

The city commission was probably wise not to pursue forfeiture against Mayor Jean Robb — at this time. I don't know what the city attorney's view is on the validity of the forfeiture clause of the city charter, but mine is that it raises serious legal issues that would likely result in litigation that could drag on for months.

Forfeiture, therefore, might not be the quick fix that some people — I among them — would like to see to the "Jean Robb problem." Not if Robb continued to fight in the courts of law after the remaining commissioners declare she has forfeited her office by her misconduct. On the other hand, censure — the modest route the commission chose to take with only a slim majority — is beyond legal challenge. Still, judging from Ms. Robb's arrogant behavior after the vote, including her snide, sarcastic remarks about donations and such, censure looks like it will have little positive effect on her conduct as mayor.

Meanwhile, she will continue to amuse and entertain her supporters with her antics, even while the city's reputation suffers.

One of Jean Robb's cadre of supporters is a man who wears military-like clothing to the commission meetings. (Those who attend commission meetings or view the videos know who he is.) Some months ago, this gentleman stated that he fought in Vietnam to preserve the rights American citizens enjoy, including the freedom of speech. That's commendable. But I wonder if this veteran also understands that his, yours, and my rights are inherent rights we have by virtue of our humanity. The Bill of Rights protects certain of these rights — freedom of religion, freedom of speech, due process, etc. — so that they may not be delayed or denied by government. This is what we mean by the Rule of Law. In other words, public officials are not above the law. They must operate within it. When they don't, they breach the public trust.

The Rule of Law equally applies to laws less glamorous than the U.S. Constitution or Bill of Rights, like the city charter of Deerfield Beach. The core issue in the present situation is not whether Mayor Robb is a good person or means well, but that she acts as if she is above the law — in this case, the basic law that organizes the city. The principle is the same.

I almost wish I could have been one of the commissioners during the public hearing on the censure motion. Another speaker, claiming to represent the St. Ambrose church community, gave a long-winded, impassioned speech on behalf of Mayor Robb, but one that hardly seemed relevant in its content. I would have liked to have asked him four pointed questions.

First, does the speaker obey the law, or at least try to? He likely would have said he does.

Second, does he expect me (as a city commissioner in this scenario) to comply with the laws that guide my conduct as a public official? I suspect he would have answered "yes."

Third, if I, again as an elected official, were to use my position and the prestige of my office to get a special privilege for someone (whether it be for code enforcement to ease up on that person or business or a city-worker parking sticker) not given to any other resident in the city, would he be okay with that? The answer, I hope, would be "no."

I would also hope his answer would be "no" if my question were to use my position to harm someone or treat them differently in a negative way. Because if I can use my power to get favored treatment for my friends, I can also use it against people. Is the significance of the Rule of Law now becoming clearer?

Finally, then, does he expect the mayor also to obey the law?

Again, this is the core issue here: Does Jean Robb have to comply with the city charter, by which the people decided that the city would be organized as a council-manager form of city government, or is she by some right above the charter? If JR is an exception to the non-interference rule, for whatever reason, then so are Mr. Ganz, Mr. Miller, Mr. Preston, and Mr. Rosenzweig. Any elected official then could rightfully direct city workers to pursue his own interests, bypassing the city manager. The city government that the voters chose, run by professional managers who know how to run a city, would be in chaos and ruin.

Mayor Robb (I think) is a smart person who understands the fundamentals, even if many of her supporters don't have a clue. But she seems to glory in the mayhem she causes, as do apparently her staunchest defenders.

What's next: Recall? Legally-sufficient grounds exist. It's a difficult, expensive process, but if done right, could succeed.

If the state ethics commission finds Mayor Robb guilty of an ethics violation, the governor would have grounds to suspend her from office. If the state attorney were to charge her with a crime — I understand, a possibility — the governor could suspend and ultimately remove her.

Three of the city commissioners have made it clear that Mayor Jean Robb is not above the law. Now it's up to her; does she reform? I have a feeling that the final chapter in this saga has yet to be written.

What About Forfeiture? - 11/26/14

In my previous article, I identified four options the city commission might have in dealing with Mayor Jean Robb, who's been accused of numerous violations of the city charter and the city and state ethics codes. One option is a vigorous public discussion of this issue, possibly leading to censure or reprimand, whatever practical effect this might have. Another option is to defer to a later date to let the matter play out at the state ethics commission. If the ethics commission were to find her guilty of one or more ethics law violations, then the city commission could ask the governor to suspend Ms. Robb from office for malfeasance. It is pure speculation, of course, as to what the governor might do with this request.

The fourth option, in theory, would be for the city commission to declare Mayor Robb has forfeited her office by her conduct as set forth in the report by the Broward Office of Inspector General and in other reports. However, giving this approach further consideration, it's not clear that forfeiture is a legally viable option, although a recent Sun-Sentinel article and others have mentioned it as a possible course of action.

So let's look at forfeiture. City Charter § 3.10(2) states:

A commissioner shall forfeit his office if said person, (a) lacks at any time during a term of office any qualification for the office prescribed by this Charter or law, (b) violates any standard of conduct or code of ethics established by law for public officials, (c) is convicted of a felony while in office, or (d) fails to attend four (4) consecutive regular meetings of the commission without being excused by the commission by formal action entered upon the minutes, or (e) has become incapable of performing the duties of commissioner for a period of more than three (3) months. In all circumstances arising under this article the commission shall be the judge of its own membership, and the applicability of its provisions.

Just to put the question aside, § 3.01 makes it clear that the mayor is a commissioner: "One of the commissioners shall be the duly elected mayor," it says, and § 3.03 provides:

The commission shall be the judge of the election and qualification of its members and of the grounds for forfeiture of their office. A member charged with conduct constituting grounds for forfeiture of his office shall be entitled to a public hearing on demand . . . .

These, then, are the fundamentals: If a commissioner, including the mayor, "violates any standard of conduct or code of ethics established by law for public officials," and the commission, after a hearing, being "the judge . . . of the grounds for forfeiture," decides that the commissioner has forfeited his office, he or she is out.

Question: How many people does it take to screw in a light bulb? Or, to put the question in context, how many commissioners does it take to declare forfeiture? Charter § 3.10(1) provides:

A vacancy in the city commission occurs when a commissioner leaves office otherwise than by the normal expiration of his term of office. The office of a commissioner shall become vacant upon his death, resignation, removal from office in any manner authorized by law, or forfeiture of his office, such forfeiture to be declared by the remaining members of the commission. [Italics added]

A strict reading of this provision suggests that it takes all four of the remaining members to declare forfeiture, rather than a simple majority (three). If this interpretation is correct, it would take only one member to veto the forfeiture. Keep this in mind as city elections are on the horizon.

Who has the power to decide that the mayor or other commissioner has violated a code of ethics or any other standard of conduct? The charter seems to give that power to the commission, but state law empowers the ethics commission to decide a violation of the state code of ethics, and the city's own law gives that authority to a hearing officer with respect to the city ethics code. Also, is § 3.09, the charter section Mayor Robb is most often accused of violating, a "standard of conduct" for the purposes of the forfeiture provision? Again, a plain reading of the charter would seem to grant the commission the right to make that determination. However, violation of the charter is clearly malfeasance, and malfeasance is usually adjudicated by a court or other tribunal with statutory jurisdiction, such as the state ethics commission, and handled by the governor under his constitutional and statutory authority that gives him the power to suspend a municipal officer guilty of malfeasance. (Malfeasance is also a grounds for recall.)

The moral is that while forfeiture may seem like luscious fruit ready to be picked by those who would like to see Mayor Robb kicked out of office pronto, it just may not be as simple is it appears in the charter. And that might be a good thing in the longer term. Mayor Robb was duly elected by the voters and holds her office by right. It would be bad precedent and unfair to the electorate if four commissioners could expel her from office simply because they don't like her, especially if it's on the basis of unproved (or possibly contrived) allegations of misconduct. Thus, the commission should proceed with caution and due consideration if it entertains forfeiture as an available option.

North Port, Florida, is a city of around 60,000 north of Tampa and west of Venice. North Port has a commission-manager form of government and its charter contained forfeiture and non-interference provisions similar to Deerfield Beach's. The North Port charter provided that a commissioner forfeits his office if (1) he "[v]iolates any express provision of [the] Charter and if (2) he specifically violates the non-interference section, to wit:

[No commissioner] shall give orders to or make requests upon an of the subordinates of the City Manager, either publicly or privately. Any such dictation, orders, requests or interference . . . shall be cause for his removal from office . . . .

In 1997, the city commission of North Port determined, after a quasi-judicial hearing, that a member of the commission, Althea Hughes, had violated the second quoted (non-interference) provision of the charter and declared her to have forfeited her office. Commissioner Hughes petitioned a court of competent jurisdiction for a common-law writ of certiorari (in plain English, a court order to review the case and possibly reverse the city commission).

Without getting into the finer points of its decision, the circuit court for Sarasota County held that neither the Home Rule Act nor common law authorized the city commission to expel the commissioner. Further, because violation of the city charter is malfeasance and state statutes provide the means to suspend or remove a municipal official for malfeasance, namely, suspension by the governor or recall, state law has, in effect, preempted the city charter's forfeiture provision. Thus, the court granted certiorari and declared the city's action null and void.

Some people are looking for a quick fix to the Jean Robb problem. That is understandable. But if the North Port decision is the best case we have, forfeiture may not be the quick fix.

The commissioners are slated to discuss the Robb situation on Tues., Dec. 2, so we might get some insight then into how they are leaning. And the city attorney may have some different views concerning the legality of the charter's forfeiture clause, if he is asked.

What Should the Commission Do About Jean Robb? - 11/12/14

It's not only a matter of what but of when. Keep in mind that Mayor Robb has not been found guilty of anything by the ethics commission or any tribunal at this point in time. The IG report only found probable cause — that is, pretty good reason to believe she has violated the city charter and possibly violated state and city ethics laws.

As I see it, the commission has four practical options right now:

(1) Remain silent or have a discussion leading nowhere. It might be best to defer most public discussion until after the city elections in March when the composition of the commission could radically change.

(2) Censure or reprimand the mayor. Or slap her around a bit with a wet noodle.

(3) Consider forfeiture. The city charter provides for forfeiture of office "if [a commissioner] . . . violates any standard of conduct or code of ethics established by law for public officials. . . ." City Charter § 3.10(2)(b).

While this may seem simple enough, it is uncharted ground in Deerfield Beach, and some case law questions the validity of this provision. Forfeiture probably ought to be considered only if all else fails.

(4) Ask the governor to suspend Mayor Robb for malfeasance. The governor is authorized to do this. The problem is that Robb's case may not yet be ripe for this given the lack of adjudication of guilt by the ethics commission. The ethics laws provide, however, that a finding by the state ethics commission that an official has violated the ethics code is malfeasance for the purposes of the state statute authorizing the governor to suspend a city official for malfeasance.

In my previous article, I suggested this as the starting point of the discussion, as far as the city commission may wish to be involved, but the time may not yet be right.

A Conspiracy of Truth - 11/08/14

There's no question in my mind, after reading the IG report of her conduct as mayor and hearing other reports, that Jean Robb has committed malfeasance or misfeasance by her frequent violations of the city charter; and possibly, in some cases, she's violated criminal statutes. The latter is still under investigation. Meanwhile, Mayor Robb is dismissive of the report — her lawyer will take care of it — as if to suggest the report's findings are not to be taken too seriously.

However, the final report of the Broward Office of the Inspector General (OIG), just issued Nov. 7, 2014, Misconduct by Deerfield Beach Mayor Jean Robb, OIG 14-017, concluded that her pattern of unlawful behavior in contravention of the city charter is serious:

The OIG investigation found probable cause to believe that Mayor Robb engaged in misconduct when she attempted to use her position to obstruct City code enforcement efforts involving a local dealership that donated to her chosen causes. We found that Mayor Robb routinely abused her authority by directing staff members without the City Manager’s knowledge and approval. Given Mayor Robb’s long tenure in her position, we must conclude that such abuse was not accidental. Such actions contravene the City charter’s well-considered safeguards separating the executive from the legislature. They also have a predictably coercive effect on employees and circumvent controls designed to protect public resources and maintain governmental accountability. [Emphasis added.]

The mayor did not file a formal response to the preliminary report that was issued about a month ago (so she hasn't denied the allegations), and she continues to wear a face of unconcerned indifference in her public appearances.

Throughout her political career, Robb has faced attacks on her conduct and character. She's always managed to immerge relatively intact, and that could be the case here, though it doesn't look too good for her now. Also, through it all, she has maintained a loyal band of followers who love her to death and will support her to the bitter end. Unfortunately, the recurring allegations of misconduct distract from the more important business of the city, which is to make better lives for its residents. Mayor Robb, as well, ought to stick to city business rather than spend her time trying to get special privileges for her friends or concocting vendettas against people she less favors. It's in that arena where she gets into the most trouble.

If there is, now, a grand conspiracy against Mayor Robb to unseat her, as some may believe, it is more likely a conspiracy of truth. At the next stage of this investigation, the facts will out and consequences, follow.

Malfeasance is a concept we (Florida) inherited from the law of England. It is a general principle that when a state separates from another state, the law of the former state continues in force until changed. This assures legal continuity. This is why if you should ever happen to be involved in a civil suit for breach of contract, the suit may be decided on legal principles established by English judges centuries ago before American independence.

At common law, malfeasance is a crime. It is sometimes referred to as a breach of public trust. Malfeasance can also be the basis of a civil tort action in some cases. It still is a crime in the Realm. A recent Canada Supreme Court case discussed it at length, and the UK Attorney General has advised British prosecutors they still may pursue criminal charges of malfeasance in applicable cases. In Florida, the governor's power to suspend a public official for malfeasance or misfeasance dates back to at least the post-Reconstruction constitution of 1885.

Malfeasance is essentially wrongdoing — a willful violation of the law. Under Florida law, it has been largely subsumed on the criminal side by statute (e.g., official misconduct), but can still result in civil penalties (misuse of office) or be grounds for suspension or recall.

In other words, malfeasance, misfeasance, breach of public trust, unlawful or unethical conduct — whatever you may call it — is no laughing matter, to be brushed off as a mere legal technicality.

A related question is why Mayor Robb is so blasé about these reports and the possible consequences — arrogantly so the way I read her. I don't think she is a crook or "crazy." At this point, she hasn't been accused of any crime that is malum in se: bribery, embezzlement, extortion, or oppression, for example. Nor has she been accused, yet, of falsifying public records, conflict of interest, or anything of that sort. Nonetheless, the evidence points to repeated, knowing violations of the city charter by her interference with the city's administration, undermining the council-manager form of government adopted in the charter.

Government codes of ethics are designed to preserve public integrity. If we had a mayor who was perfectly honest, we probably would not have to worry too much about public integrity. She would always tell the truth; act impartially, setting aside personal biases and prejudices; respect the rights and dignity of all people; and comply with the law whether she agrees with it or not. On the other hand, a thoroughly dishonest public official, from the standpoint of personal ethics, can fully comply with the standards of conduct set out in the ethics codes and never be accused of ethics violations. This, I believe, is the crux of the matter: Jean Robb is short in the personal integrity department. It's not that she does not have the intellectual or mental capacity to know "right" and "wrong" or that she does not totally understand the charter that governs the way the city is supposed to operate. She just doesn't want to do it that way. As the IG report stated: "Given Mayor Robb’s long tenure in her position, we must conclude that [her] abuse [of authority] was not accidental."

Thus, she does "stupid" things. She hardly ever admits to her mistakes. She resists making amends. If she does apologize, it's half-hearted and she goes back to her old ways. No, she will claim, she didn't demand code enforcement ease up on the car dealer who gave money to her favorite causes — she just asked if. Like she asked if (just if) a certain person could be blocked from her city email account. Nor did she tell city employees to issue a city parking sticker to her pastor or seek to exclude a potential contractor she doesn't like for some reason from a contract bid. She, she will say, was misunderstood . . . or they are lying. Just like Sheriff Israel lied. As Maj. Burns ("M*A*S*H") said, "I wouldn't be so paranoid if everyone wasn't against me."

If Jean Robb, in the face of the evidence, does not atone or resign, the city may have no choice but to act. The commission cannot let this behavior go unchecked. As Mr. Ganz indicated at the last city commission meeting, if Robb's behavior continues, the city must do something. The commission has options, he said, which is true.

If my thesis that Mayor Robb has committed malfeasance or misfeasance is correct, the commission could ask the governor to suspend her from office. That would an option — a good first one to explore.

Jean Robb v. the IG - 10/08/14 (Updated)

The 22 page IG report issued Oct. 2, 2014, found "probable cause to believe that Mayor [Jean] Robb engaged in acts of ethical misconduct." I would take this a step further. The report shows (and in a sense confirms what we already knew) that on numerous occasions, Robb abused her office by repeated violations and reckless disregard of the city charter, specifically § 3.09.

This section protects the integrity of the council-manager form of government adopted by this charter. It provides in part:

Except for the purpose of inquiries and investigations, the commission or its members shall deal with city officers and employees who are subject to the direction and supervision of the city manager solely through the city manager, and neither the commission nor its members shall give orders to any such officer or employee, either publicly or privately

The report documents five instances when Mayor Robb interfered with city administration. Without question, there were other occasions as well in this pattern of abuse. Some of these cases also involved potential violation of the state and city ethics codes.

Although the report is not conclusive (Robb has 30 days to file a response before a final report is issued), it nonetheless raises considerable and legitimate concern whether she is fit to remain in office as mayor. An additional concern is that this abuse of power could have led to unlawful actions with even more serious consequences if the mayor's orders had been carried out. For example, what would have happened had the city administration not steadfastly refused to follow her directions to cut a prospective vendor she didn't like out of a contract bid — one of the cases cited by the IG report?

Violation of Charter § 3.09 is malfeasance that could result in suspension or removal from office. The state Supreme Court in Garvin v. Jerome, 767 So.2d 1190 (2000), and the lower-court decisions leading up to it seem to affirm that an elected official's violating charter provisions nearly identical to our § 3.09 is malfeasance for the purposes of recall. Cf. Wolfson v. Work, 326 So. 2d 90 (Fla. 2d DCA 1976). Held, the charge that a public official "Violated the City Charter by giving orders to, and making requests of, city employees who were subordinates of the City Manager" is malfeasance for the purposes of the recall statute: "Malfeasance has been defined as the performance by a public official in his official capacity of a completely illegal and wrongful act that he either has no right to perform or has contracted not to do. . . . Certainly where a city official violates an express prohibition in the City Charter such violation is a sufficient 'illegal' act as to constitute 'malfeasance' within contemplation of the [recall] statute." [Citations omitted.]

Malfeasance is also a grounds for suspension of a city official from office by the governor under Fla. Stat. § 112.51(1) ("[T]he Governor may suspend from office any elected or appointed municipal official for malfeasance, misfeasance, neglect of duty, habitual drunkenness, incompetence, or permanent inability to perform official duties.") This is separate from his power to suspend an official who has been charged with a crime.

If you scan the report, you may conclude that it's not all that serious, because nothing really happened as a result of the mayor's actions. It's true that the impact of the allegations is blunted by the fact that the city administration, backed up by a supportive commission, stood up to her in most cases. Nonetheless, willful and repeated violations of the city charter, the law, and ethics are serious matters regardless of the degree of harm.

So what happens now? Likely nothing until the final report is in. Meanwhile, it is reported that further investigations are underway by the state attorney's office that could lead to more serious, possibly criminal, charges. If that happens the IG report will probably be relegated to just a footnote to the continuing saga of Jean Robb's abuse of power and ethical misconduct.