By Dan Christensen, BrowardBulldog.org
Original I.A. report states "Officer was arrested," left. Revised version, right. Click to enlarge.
The Broward State Attorney’s refusal to pursue a Fort Lauderdale Police Internal Affairs report that was purged of information about an officer’s arrest has drawn the ire of Public Defender Howard Finkelstein.
Finkelstein asserts that the police broke Florida public records law when the head of Internal Affairs changed a police database to delete any mention of the out-of-state arrest of Sgt. Jerald Fuller.
Fuller had been arrested in New York in connection with a dispute involving property damage. A New York municipal judge dismissed the case and sealed the court file four days after Fuller’s July 19, 2009 arrest.
Fort Lauderdale Police Capt. Rick Maglione, who left Internal Affairs in 2011, says he removed the arrest information to comply with the judge’s order.
It can be a crime in Florida to falsify or alter a public record, whether a paper report or an electronic database. So when a tipster alerted the Public Defender’s Office in February to what was done, a request was made for State Attorney Michael Satz’s public corruption unit to investigate.
Assistant State Attorney Tim Donnelly said last week that he spoke with Maglione and determined no investigation was necessary.
“There is no crime in editing your own document,” Donnelly told Broward Bulldog. “It’s not a public record. It’s like a Word document.”
Finkelstein is not happy with Donnelly’s conclusion.
“Despite direct evidence that a police captain, while conducting an Internal Affairs investigation, altered a report to conceal the fact that a police officer was arrested, your office has found nothing wrong nor even found the need to investigate,” Finkelstein said in a recent letter to Satz.
In an interview, Finkelstein added, “The public record is not a work of fiction, but that’s what happened here….It was creative writing to make it appear that what happened didn’t really happen. If it isn’t illegal, it is certainly unethical.”
Public Defender Howard Finkelstein
SERGEANT DISCLOSED ARREST
Fuller, a supervisor with the city’s controversial anti-drug unit known as the Northwest Raiders, disclosed his arrest to superiors. Details, however, are sketchy. Not only is the New York court file sealed, Maglione did not obtain – or request – a copy of the New York police report describing what happened. New York law allows police agencies access to sealed cases.
“Everything I had was self-reported” by Fuller, said Maglione, a former Raider. “I was satisfied with that because I was also assured (by Fuller’s New York lawyer and an unnamed local district attorney) that no crime occurred.”
Maglione’s account, based solely on what Fuller told him, states that Fuller was on vacation in Niagara County, N.Y. on July 19, 2009 when “he became involved in a disturbance at a privately-owned residence.” Fuller, a 19-year-veteran, was with his brother “and another individual known to the Fuller family, the report says.
“The disturbance prompted a neighbor to contact the local police and it was initially determined that Sergeant Fuller and his brother were responsible for some minor damage to the other individual’s property, but any contemplated charges were subsequently dismissed once it was determined that no crime occurred,” the report says.
Maglione’s report does not say what crime Fuller was charged with, provide the location and time of the incident, describe the damage or say what police agency investigated. It also does not mention that one or two other persons were arrested.
Likewise, the police file includes no notation that the report was altered because of New York law. The department’s software system, IAPro, also does not track such changes. “It overwrites the first entry entirely,” Maglione said.
Maglione, now a top aide to Chief Frank Adderley, says he deleted the arrest information in an update before finalizing his report in August 2009. But Al Smith, Finkelstein’s chief investigator, said he determined the alterations were actually made about a year later. During that time, he said, the cleaned-up version was sent out in response to several requests for information about Fuller.
The arrests occurred on a Sunday. By the end of business Thursday, the case was dismissed and sealed by Somerset Town Court Justice Donald P. Martineck.
A few days later, Fuller presented Maglione with a letter from his attorneys, George Muscato and Michael H. White Jr., declaring that “all charges” had been dismissed and that complainant Clayton Cooper had signed a document stating “he did not want to pursue any further charges” and, in fact, had never wanted “to bring charges in the first place.”
Cooper is not further identified. A 78-year-old man with the same name who resided in a small home in the tiny town of Barker, which is surrounded by Somerset, N.Y, died in September 2010.
CLOSED CASE COMES BACK
Maglione closed Fort Lauderdale’s Internal Affairs investigation on August 10, 2009. He did so, he said, without obtaining a police report to verify what Fuller had told him. A signed hard copy of his report, sans mention of the arrest, is included in the file. Case closed, he said.
Captain Rick Maglione
But two and a half years later, on February 1, 2012, investigator Smith, a former Fort Lauderdale police detective, received at his home copies of two nearly identical internal Affairs reports about the New York incident. The second, as Smith put it in his referral to prosecutors, was “sanitized” to omit the fact of Fuller’s arrest.
The Public Defender’s Office filed a public records request seeking Fuller’s file because he is a witness against a client. The police coughed up the version of the report that does not mention that he was arrested.
Police legal advisor Bradley Weissman now says it was a mistake for police to release even the censored report because of the blanket sealing order.
“I believe we made an error when we turned it over,” Weissman said. Still, Florida’s broad public records law requires such records to be open to the public.
Fuller’s Fort Lauderdale attorney, Michael Gottlieb, is upset that someone leaked Internal Affairs records about his client. He said he suspects it was done by “somebody in internal affairs who wanted to get somebody else in trouble and who thought this case was improperly closed or that favoritism was shown.” He declined to name names.
A MATTER OF CONCERN
While prosecutors have brushed the matter off, Finkelstein’s letter to Satz calls it a matter of “great concern” because defense counsel rely on information in Internal Affairs files to locate information they can use to impeach the testimony of officers who are witnesses against their clients.
The disagreement is part of long-running legal spat between Satz and Finkelstein about pre-trial disclosure by prosecutors. For nearly 50 years, courts have required prosecutors to turn over so-called Brady evidence – information favorable to a defendant.
Satz has said his disclosure policy “far exceeds” his legal obligations under Brady. Finkelstein counters that Broward prosecutors tend to withhold too much potentially favorable evidence and have little interest in enforcing Brady requirements when it comes to the police. He cited that concern in his letter to Satz.
“The failure to address this incident evidences the double standard your office employs when police misbehavior is at issue,” Finkelstein said.
Editor’s note: This story about Florida is part of the State Integrity Investigation, a first-of-its-kind, data-driven assessment of transparency, accountability and anti-corruption mechanisms in all 50 states. The project was overseen and edited by The Center for Public Integrity in Washington, D.C.
By Dan Christensen, BrowardBulldog.org
Florida kicked off the modern era of open government reforms when it became the first state to pass an open meetings law in 1967. Today, Florida’s Sunshine Law, and its even older Public Records Law, are among the strongest in the nation.
But while Florida lets plenty of sun shine in on public meetings and records, it has done a poor job of illuminating the activities of lobbyists. Most states and the federal government require registered lobbyists to make public what issues or actions they seek to influence. Florida does not. Lobbyists dealing with the executive branch aren’t even required to report what agencies they are lobbying.
The mixed assessment is reflected in the Sunshine State’s grades from the State Integrity Investigation, a collaborative project of the Center for Public Integrity, Global Integrity and Public Radio International. Florida, a state of 19 million residents, receives a grade of C- and a numerical score of 71, ranking it 18th among the states. Florida’s Corruption Risk Report Card.
The lobbying maze
In Florida, lobbying firms are required to file quarterly compensation reports that identify their clients and state how much they are paid – but disclosure is limited to broad dollar ranges. Federal lobbyists are required to report an exact figure.
Compensation reports were enacted, but expenditure reports were repealed, after the law was changed in 2005 to ban gifts to lawmakers from lobbyists, following a scandal.
Lobbyist compensation reports may be lacking, but they are accessible online. The information they contain about lobbyists and their principals is formatted and available for download without cost.
Unlike some of its municipalities, notably Broward County, Florida does not disclose lobbyist contacts with legislators or agency staff. Florida also has not followed the lead of states like Nevada, which publishes a Facebook-style lobbyist list.
The rules for reporting are weak, but a deeper flaw is that the law requires so few people to register and report at all, according to Philip Claypool, the former longtime executive director and general counsel for the Florida Commission on Ethics.
The state definition of executive lobbyist has as many holes as “Swiss cheese,” he said.
Florida law defines a lobbyist to include “a person who is principally employed for governmental affairs by another person or governmental entity.” That seems to exempt corporate employees, said Edwin Bender, executive director of the nonprofit and nonpartisan National Institute on Money in State Politics.
Large governments within the state also exploit loopholes to avoid the registration and disclosure requirements in Florida’s lobbyist regulations.
Florida’s five regional water management districts manage water quality and flood control. They award tens of millions of dollars in annual contracts. But lobbyists who seek to influence those deals are not required to register or disclose who hired them or how much they are being paid.
The districts contend that as independent taxing districts they are not covered by lobbying rules that govern other state agencies.
A lack of enforcement
Enforcement of state lobbying disclosure requirements – such as they are – is minimal. Florida requires lobbying firms and principals to preserve their accounts and records for four years to substantiate compensation for possible audit. Audits, however, are virtually non-existent.
“The law contemplates audits, but they are not done,” said Claypool. He explained that the high cost of audits and the unwillingness of private accountants to do the limited audits contemplated by the Legislature combined to kill the idea.
Claypool and Bender explained that when irregularities are found, which isn’t often, it is the Legislature that investigates.
“The process is cumbersome,” said Claypool. “Investigations are initiated by sworn complaint and if a committee finds a violation it can recommend a penalty of not more than $5,000, a reprimand or a prohibition on lobbying not to exceed two years. Any penalty is subject to a majority vote of the House or Senate.”
“It’s set up so it’s a wink and a nod,” said Bender. “The incentive is not to investigate and a $5,000 fine is a slap on the wrist.”
Florida's Capitol in Tallahassee
Florida agencies that enforce ethical standards for public officials – the Commission on Ethics and the Judicial Qualifications Commission (JQC) – are weak, too.
The Ethics Commission, which investigates misbehavior, has no power to initiate investigations. It can only respond to sworn complaints on an approved form, Claypool said.
The Judicial Qualifications Commission has the authority to launch an inquiry of a judge, but rarely does so on its own initiative, according to its longtime executive director Brooke Kennerly. Both commissions can only recommend penalties – to the governor and the Supreme Court, respectively.
Florida’s Statewide Grand Jury issued a corruption report in December 2010 that was critical of the Ethics Commissions’ civil fine structure – saying its $10,000 maximum penalty was inadequate.
“We find the Legislature should increase the cap to $100,000 as it would be more of a deterrent and more justly set apart the violations based on severity. We point out that the Commission on Ethics has no enforcement authority and that it goes to the Governor to be enforced,” the report reads.
But Tallahassee attorney Mark Herron, who represents public officials accused of ethics violations, attributed the criticism to a general misunderstanding of the commission’s role.
“I can understand where the grand jury is coming from, but by the same token there are things called ‘crimes.’ Things related to administrative rules and the ethics code are for the most part not crimes,” said Herron. “Getting whacked for $10,000 and being branded as an unethical guy, is that significant?”
While the two commissions are ostensibly independent, each is undermined by structural deficiency. The nine Ethics Commission members are political appointees of the governor, House speaker and Senate president. The JQC is dominated by appointed judges and lawyers – a structure the 34-year-old nonpartisan, nonprofit public interest group HALT has criticized as an “insular” system in which “litigants are reluctant to file ethics complaints” because “the oversight system itself is controlled by judges.”
As for gifts to public officials, Florida regulations are generally tough, but tempered by both limitations and exceptions.
State law, for example, prohibits elected officials, candidates and employees from soliciting or accepting “anything of value…based upon any understanding that (their) vote, official action or judgment” would be influenced.
But the law also says that individuals required to file financial disclosure statements, and state procurement employees, may accept a gift from a lobbyist so long as it is worth $100 or less.
“So you can take $100 worth of stuff every day,” said Herron. “Under state law, these public officials have no obligation to inform the public that they have received these gifts. The lobbyist is supposed to make a report of any gift given in excess of $25, but less than $100, but most of the time they don’t do that report.”
State legislators face a broader general prohibition, and can’t take any gift from a lobbyist, except flowers “displayed in chambers on the opening day of a regular session.” Judicial rules say judges are not supposed to accept gifts and are also obliged to discourage family members from accepting them.
But exceptions are written into the law when lobbying is kept all in the family. An all-expense paid vacation, for example, provided by relatives, is perfectly fine, even if the relatives are also lobbyists.
In Florida, a relative is defined to include everyone from a parent to a step-great-grandchild, or even a fiancé.
Florida’s quarterly gift disclosure reports, like its annual financial disclosure reports, are filed with the Ethics Commission and available for public inspection. They are not online, but copies can be obtained via email free of charge.
Access to information
It is the strength of Florida’s open records law that makes the lobbying rules seem that much weaker.
The right of Florida’s citizens to access such government records is rooted in the state’s constitution, state statutes and legislative and judicial rules. No state agencies or officials are exempt, although there are certain statutory exemptions regarding items like trade secrets or active law enforcement investigations. In a disturbing trend, however, the Legislature adds more specific exemptions to the list every year.
There are other problems, especially when it comes to the cost of electronic records.
In addition to copying charges, agencies are allowed to assess extensive user fees from those who seek information about their government. Fees are charged for clerical and supervisory personnel, as well as “information technology resources” used to search or build databases.
“That’s where we are really seeing a lot of push back at the agency level, mostly related to electronic records,” said James Rhea, former director of the Tallahassee-based First Amendment Foundation. “We are seeing people who don’t get what they ask for because of cost…It’s a growing problem in Florida” that has not been adequately addressed by the legislature.
Costs can vary wildly between agencies, said Patricia Gleason, special counsel for open government at the Florida Attorney General’s Office.
“So much depends on the type of computer system the agencies have,” Gleason said. “Ask for emails in one jurisdiction and you might be charged $25. In another because a computer system is out of date, it might be $200.”
She added that it’s helpful for the public to tailor their requests in order to narrow agency search time and limit the fees they will be charged.
Costs also can ramp up quickly if a citizen must go to court to force an agency to release public records. But there is redress. Under Florida statute 119.12, agencies that refuse to produce a public record can be ordered by a judge to pay a requestor’s attorneys’ fees and costs.
“I tell government agencies: You lose. You pay,” said Gleason.