In Stunning Turnaround, Sheriff Manfre Says He Will Fight Ethics Fine and Censure After All
FlaglerLive | March 11, 2016
Four weeks ago, an administrative law judge recommended a $6,200 fine and a public censure of Flagler County Sheriff Jim Manfre in a two-year-old ethics case started by Manfre’s former finance director. The case, stemming from alleged misuse of agency credit cards, agency vehicles and the reporting of a gift, had seesawed through two investigations and numerous proceedings.
The day the recommendation was issued, Manfre, who had vowed to fight any penalty, said in a statement that as long as the ethics commission followed the recommendation at its April 15 meeting, “I have no intention of appealing this decision as it is now time to put this behind us.”
On Friday, in a stunning turnaround, Manfre said that was no longer the case. “At this point I’ve changed my mind, and unless they dismiss the charges and levy no fine, I intend to appeal,” the sheriff said.
He was being interviewed on a separate matter: the whistleblower lawsuit filed the same year by the same person who filed the ethics charges—Linda Bolante, who says she was pushed out of the sheriff’s office in March 2013 after bringing financial irregularities to the sheriff’s attention (a version of events the sheriff has disputed, saying it was Bolante who was responsible for ensuring that he followed certain financial procedures). The lawsuit has crawled through the discovery process, which had recently bogged down on a disclosure issue.
During an Oct. 28 deposition, Manfre’s attorney had directed him not to answer questions relating to the ethics case, which Manfre considers irrelevant in so far as the whistleblower case is concerned. The deposition immediately ended, and Bolante’s attorney, Robert McLeod, filed a motion to compel Manfre to answer those questions and provide documents pertaining to the sheriff’s office that he had resisted providing, but for a different reason (his attorney, Linda Edwards, had said the request was overly broad). The two sides also sought sanctions against each other
On Tuesday (March 8), Circuit Judge Michael Orfinger issued a seven-page ruling that, aside from rejecting sanctions against either side, largely favored Bolante. Orfinger termed “improper” Edwards’s directive to Manfre not to answer questions she deemed irrelevant, particularly since she had not based her objection on attorney-client privilege. “Clearly,” Orfinger ruled, “the fact that a deposition question may be irrelevant does not support an instruction not to answer. Further, assuming that such an instruction would ever be proper, the court has no way of determining whether a given question is relevant until it has been asked.” And in the discovery process, which includes depositions, a lot more material may be introduced than may be admissible at trial, the judge noted.
Manfre was seeking to avoid a deposition conducted “in bad faith or in such manner as unreasonably to annoy, embarrass or oppress him,” as the wording of a rule of civil procedure puts it. That’s a fair concern, the judge found, but if so Manfre and his attorney could have suspended the deposition to seek “an order limiting the scope and manner of the questioning.” They did not do so. Rather, Edwards gave Manfre “a blanker instruction not to answer certain areas of inquiry.”
Orfinger did, however, agree with Edwards that the request for documents was overly broad. “Presumably,” Orfinger wrote in a subtly witty line, Bolante “does not want such documents going back to the inception of the Sheriff’s Office itself.” But even though he denied that portion of McLeod’s motion, what he did allow was still quite broad: Manfre must now produce documents going back to his first term in office, starting in 2001.
In Friday’s interview about the court case, Manfre maintained that questions about the ethics charges were irrelevant to the deposition, though he would now have to answer them (a subsequent deposition has not been scheduled). The sheriff has repeatedly said that the court case and the ethics case were both politically motivated—not just by Bolante, but by his ex-Undersheriff, Rick Staly, who resigned from the agency last year only to then declare his candidacy for sheriff against Manfre, assuming Manfre makes it through the Democratic primary. Staly is one of six Republican candidates and eight overall who have declared for sheriff.
The two cases have in fact been a pair of albatrosses around Manfre’s neck in a difficult re-election year made even more difficult by the county’s much larger Republican than Democratic electorate. His decision to agree to the administrative law judge’s recommendation of a fine and public censure was seen as a strategic pivot, enabling him to free himself of one of the two obstacles in his way.
That’s what makes his reversal more startling, though he also made clear why he had changed his mind.
“After reviewing the facts and reflecting on what happened with Don Fleming, I’ve changed my mind.” Fleming is the former sheriff. The facts he had reviewed, in part, relate to a ethics charge against Fleming in his second term, when he was accused of accepting favors and gifts, in the form of access to the Hammock Beach Resort (where a membership cost a $20,000 initiation fee and $5,000 in annual dues) and discounts on meals and drinks. The arrangement had stretched from 2005 to 2011 and tallied large sums in benefits that accrued to Fleming—who, at the time, also termed the ethics charge a political ploy to harm his electoral chances (as it did). At first, Fleming denied wrongdoing.
Three weeks before the election, the ethics commission found probable cause that he’d violated the state’s ethics laws, and subsequently fined him $500. Fleming paid back $4,000 to the resort. And Manfre beat him in a close election. Fleming is among the Republican candidates running in the sheriff’s race.
On Friday, Manfre said the ethics charges against him amount to a fraction of the dollar value Fleming benefited from, yet the penalty is disproportionately punishing in comparison.
“His was five years of a membership that cost you at least $10,000 a year to be a member at that time,” Manfre said, “and $20,000 in food and beverage, and $4,000 discount as a member. Now you compare that to what I did. He gets $500 and I get $6,000? Does that make any sense? Is it fair?”
Manfre was asked about the notion of putting the matter behind him, as he had decided to do in February after the administrative law judge issued the recommendation.
“There is value in that,” Manfre said, “but there is justice, and we each have our own definition of what that is. My feeling right now is that justice has not been done. Politically it would be better for me to put it behind me. But from a sense of what is just, right now my intention is to appeal, especially in light of how Mr. Fleming was treated for a much more substantial violation.”
The statement suggests that Manfre, who is a lawyer, may have decided to place his legacy–and personal record–ahead of political calculations. But if he were to eventually win his case–a big and time-consuming if–the victory would likely come at the cost of his election.
Manfre said he does not intend to be at the ethics commission’s April 15 meeting, where commissioners may agree to adopt the administrative law judge’s recommendation or reject it. The appeal route, beyond that, is through the 11th Circuit Court of Appeal.
“After the commission acts then I’ll have a more detailed statement based on what they say,” the sheriff said.