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Naples ethics commission to self-start investigations based on informal complaints

Naples Daily News logo Naples Daily News 7/13/2021 Omar Rodríguez Ortiz, Naples Daily News
a sign in front of a house: Naples City Hall, 735 Eighth St. S., across from Cambier Park in downtown Naples. © City of Naples Naples City Hall, 735 Eighth St. S., across from Cambier Park in downtown Naples.

Editor's note: This story has been corrected from its original version to reflect that the Miami-Dade County's code of ethics allows self-initiated complaints.

The Naples Commission on Ethics and Government Integrity can self-start investigations based on information it receives through informal complaints, the commission voted unanimously last month.

The new rules allow the commission to begin investigations if it obtains ethical misconduct allegations about city employees, officers, board members and contractors via unsworn statements such as anonymous sources, e-mails and calls.

a sign in front of a house: Naples City Hall, 735 Eighth St. S., across from Cambier Park in downtown Naples. © City of Naples Naples City Hall, 735 Eighth St. S., across from Cambier Park in downtown Naples.

The commission can "investigate complaints on its own initiative," according to the city's charter.

More: Naples ethics complaint filed against Mayor Teresa Heitmann dismissed

And: Former Naples Mayor Bill Barnett files ethics complaint on Mayor Teresa Heitmann

From April: Naples Ethics Commission selects Miami-Dade advocate as first executive director

Mike Murawski, the commission's executive director, said in a meeting last month he proposed the rules so the commission could have a way to address complaints that are not submitted through a formal process, which includes a sworn, written statement.

"There was some discussion earlier about whether we limit ourselves only to actual formal complaints that get filed by people, that come in a form and are notarized, and then what do we do with the rest of the stuff that comes like in my mailbox or my email," Murawski said June 25.

Unlike in Naples, the Florida Commission on Ethics, a nine-member organization that investigates ethics complaints made against public officers and employees around the state, does not have the ability to self-start investigations, Chris Anderson, executive director of the commission, said Friday.

Anderson said his commission can only start investigations if it receives a complaint or if it receives a referral from a state attorney, a U.S. attorney, the Governor's Office or the Florida Department of Law Enforcement.

"We do not have self-initiation authority to start our own investigations," Anderson said.

As a former advocate in the enforcement unit for the Miami-Dade County Commission on Ethics and Public Trust, Murawski said the commission allows self-initiated ethics complaints.

"I did not have written procedures like this for the past 20 years, but this was substantially what our practice was," Murawski said.

If an informal complaint alleges a violation of Naples' ethics code, the executive director and chairman of the commission will determine whether a preliminary investigation is warranted, Murawski said.

To begin a preliminary inquiry, the executive director must first consider whether the source of the allegations can be vetted, whether the allegations can be independently corroborated with evidence and whether similar allegations have been received from other sources, according to the rules.

"(Then) we would decide whether or not what we have is sufficient to go forward on a complaint that we would file ourselves," Murawski said.

Murawski did not say how many complaints the commission is handling because complaints are confidential.

"I can't comment on those," Murawski said earlier this month.

All investigation records are confidential either until the investigation is closed or the ethics commission decides whether or not there is probable cause or otherwise orders the dismissal of the complaints, according to the rules.

Commission adopts rules for formal complaints

On June 30, the commission voted unanimously to adopt rules for formal complaints, which are filed in a prescribed format, signed under oath and based "substantially" on complainants' personal knowledge.

"This would allow for an official process for complaints to be received by the commission," Murawski wrote in an email last month.

Peter Dunbar, attorney for the commission, said last month that formal complaints should be based substantially on firsthand knowledge to prevent the misuse of city funds to investigate rumors.

a group of people in a room: Former Naples Mayor Bill Barnet speaks at a City Council meeting on June 1, 2021. © Omar Rodríguez Ortiz/Staff Former Naples Mayor Bill Barnet speaks at a City Council meeting on June 1, 2021.

At the same meeting, the commission voted unanimously to dismiss a complaint filed in June by former Mayor Bill Barnett against Mayor Teresa Heitmann because Barnett did not have personal knowledge of the allegations made against Heitmann.

In the complaint, Barnett wrote Heitmann may have breached the public's trust by allegedly accusing him of running a child prostitution ring and hacking her electronic devices.

Heitmann has denied the allegations, which stem from a complaint made by Brian Dye, the city's director of technology services.

As a former chairman and two-term member of the state's ethics commission, Dunbar said complaints based on rumors tend to increase during election years.

"You would be surprised (to know) how much complaint filings increase during an election year simply because sometimes it becomes a tool for campaigns," Dunbar said.

Within five business days of receiving a formal complaint, staff will send the complainant a written confirmation of the complaint with its assigned number. Within 30 days, the commission will forward a copy of the complaint to the respondent.

If the complaint is filed by the commission's executive director, the commission will forward a copy of the complaint to the respondent within five days after filing it. 

The commission's attorney will then review the complaint to determine whether the complaint alleges a violation of the ethics code. If it does, the complaint would be found to be "legally sufficient."

If the attorney finds a complaint to be legally insufficient, it would be recommended the commission dismiss the complaint and the commission will make a determination during a meeting closed to the public.

In any case where a complaint is found legally insufficient and dismissed, the dismissal order together with all documents related to the complaint will become public record.

If the attorney finds a complaint to be legally sufficient, the executive director will assign the case to an "advocate" to investigate and make a probable cause determination.

Once the case is assigned, the investigator will interview witnesses, review documents and submit a probable cause report to the advocate or executive director. They will review the report and make a written recommendation to the commission.

From the date of mailing of the advocate's recommendation, the respondents will have at least 10 days to file a written response to the commission, which may include motions to dismiss or to strike.

The commission will then have a closed hearing to determine whether there is probable cause after listening to oral arguments from the advocate and the respondent. The complainant will be allowed to attend the probable cause hearing but will not be allowed to speak.

If the commission does not find probable cause, the commission may order an issuance of a public report of its investigation. If it finds probable cause, it may order a public hearing and determine what charges will be brought.

At the public hearing, the advocate and the respondent will present their evidence and issue statements addressing the accusations. Once they do, the commission may issue a final determination and impose penalties.

Penalties may include a fine up to $500 per violation, an order to repay public funds and a recommendation of removal from office or position. As for public employees, the city manager may determine additional penalties such as firing them.

a man wearing glasses and looking at the camera: John Lehmann © Courtesy of John Lehmann John Lehmann

To increase the likelihood of respondents paying their fines or restitution, the city can accept a payment plan, go to court or garnish the wages of city employees.

At any stage of the proceedings, the commission can enter into a settlement agreement or accept one proposed by the advocate or executive director if it finds them to be just and in the best interest of Naples residents.

Commissioner John Lehmann said hiring new staff such as advocates and investigators is "too much administration" for Naples. He said Murawski, the commission's executive director, should take on the responsibilities of advocates and investigators "until it is clear we need separate people."

"I think that is way more staff, personnel and expense than we need here," Lehmann said in a meeting on June 25.

Formal complaints can be submitted by email to Naples_ ethics@naplesgov.com or by regular mail or personal delivery to Commission on Ethics and Governmental Integrity, 295 Riverside Circle, 2nd Floor, Naples, Florida, 34102.

Ethics code waits for City Council approval

At the June 30 meeting, the commission also adopted unanimously changes to its ethics code, which highlights the commission's duties such as establishing ethics training and providing ethical guidance at the request of city staff, board members, officials and lobbyists.

The code also prohibits several types of conflict of interest and regulates how ex parte communications must be disclosed.

"What you are really looking for is to carry out the mission of the (city's) charter amendment (which) is to ensure ethical conduct and quality public service," Dunbar, the commission's attorney, said last month.

a person sitting in a boat on a body of water: City of Naples Mayor Teresa Heitmann speaks during a City Council meeting on May 13, 2021. © Omar Rodríguez Ortiz/Staff City of Naples Mayor Teresa Heitmann speaks during a City Council meeting on May 13, 2021.

Unlike some local ethics rules, the ethics code needs City Council's approval, Dunbar said. 

He said the commission will be fully operational once City Council approves the code on first and second readings, tentatively scheduled for Aug. 18 and Sept. 1, respectively. 

On May 5, City Council rejected an earlier version of the code.

"We will not have all the procedures necessary to do the full duties of the commission until the second reading occurs," Dunbar said.

As the commission receives requests and complaints, it will determine on a case-by-case basis what it can and cannot do until City Council approves the code on second reading, Dunbar said earlier this month.

Dunbar said he believes the commission is currently authorized to take certain actions such as self-starting investigations.

"We are not going to sit back and do nothing until Sept. 1. We will be in an active and ongoing analysis on how much jurisdiction we have based on the procedures we adopted," Dunbar said.

Contact Omar at omar.rodriguezortiz@naplesnews.com, and follow him on Twitter as @Omar_fromPR. Support his work by subscribing to Naples Daily News.

This article originally appeared on Naples Daily News: Naples ethics commission to self-start investigations based on informal complaints

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