Circuit Judge Michael Orfinger this morning turned down Sheriff Jim Manfre’s latest attempt to dismiss a whistleblower suit against him. The order puts the case on track for trial next year, in the thick of Manfre’s re-election campaign, and echoes a related action against him through the state ethics commission that Manfre intends to fight.
Linda Bolante, the finance director at the sheriff’s office from July 2000 to the end of March 2014, filed both matters against the sheriff, and is reportedly considering a third filing against him before the Florida Bar. (Manfre is a lawyer licensed to practice in Florida.) Bolante filed the lawsuit last October. She relates that in October 2013 she brought to Manfre’s attention—as well as to the attention of then-Undersheriff Rick Staly and Sid Nowell, Manfre’s attorney—what she termed “unlawful and improper” spending by Manfre. Those issues have since been reported extensively as Bolante also filed four ethics charges against the sheriff, and the Florida Commission on Ethics sustained three of the four in a hearing last Friday.
The ethics commission’s ruling may have played a role in today’s hearing by buttressing the credibility of Bolante’s claims and diminishing Manfre’s claim that she has no standing under whistleblower law.
The “unlawful and improper” spending had to do with Manfre’s use of a sheriff’s office credit card. He used it for certain meals and other expenses that Bolante says should not have been placed on the card. Manfre has maintained that he was merely going by previous practices, and that it was Bolante who had not previously informed him of the correct procedure. Bolante’s suit outline a succession of events that tells a different story, with Bolante bringing up the matter to the sheriff’s attention, then being placed under pressure, then on notice, to leave the agency.
After first filing suit, Manfre’s attorney argued that she had no claim to a whistleblower suit, that her claims lacked specificity, and that the suit was filed too late after the alleged incidents had taken place. Bolante would then argue that she hadn’t filed her suit immediately after those incidents because she was still employed, and had hoped that her remaining term of employment might lead to a reconciliation with Manfre since she’d worked for him for such long date (he’d hired her in 2000, when he was first sheriff).
Robert McLeod, the St. Augustine attorney representing Bolante, said today after the hearing that the 180-day clock for filing a whistleblower lawsuit didn’t start until after Bolante’s last day at work. “We’ve always been somewhat befuddled why that kept being brought up,” McLeod said.
Manfre has argued through his attorney, Tallahassee-based Linda Edwards, that the suit has no merit under whistleblower law. “When stripped of its rhetorical flourish and legal conclusions, the second amended complaint’s failure to allege facts sufficient to establish disclosure protected by the Whistleblower Act or a cognizable adverse action requires dismissal,” the response to Bolante’s complaint reads. McLeod termed that position “incredulous” in light of the ethics commission’s findings against Manfre. Edwards could not be reached Monday.
The sheriff vehemently disputes the commission’s findings and says he will be fighting those in court as well, if necessary. Edwards represents him in both actions.
Manfre claims Bolante had been “hostile” toward him from the first day of his latest administration because she’d been a supporter of ex-sheriff Don Fleming, and that Bolante had grown dissatisfied with the job because she was asked to work regular business hours, as opposed to hours that had her come in very early and leave in early afternoon. None of that is part of Bolante’s suit though as the matter has lingered, and the ethics issue has surfaced, Manfre’s characterization of Bolante has progressively become more critical.
McLeod says depositions are next. He intends to depose the sheriff, Staly and possibly Nowell, who was a witness to the issues Bolante reveals, though that may raise questions of attorney-client privilege that the two sides will have to work out before the judge. McLeod said no trial is likely before next year. “We’re not going to schedule based upon a campaign or not a campaign,” he said, referring to the court docket. “I’d like to get to it as soon as possible.”
“At the end of the day it is what it is,” McLeod said. “My client reported these things. I don’t know how he’s going to defend on the actions. Last time I checked you can’t use a credit card for personal means when that credit card belongs to the public.”
Manfre has opened a large window into his defense as he explained Friday why he considered the ethics commission’s charges invalid. He says the policies and practices in place at the time were such that his use of the credit card was neither illegal nor against policy—claims some of his own co-workers have since disputed—and that it had been Bolante herself who’d been alerted to irregular practices only after an auditor flagged them. If those practices had been in place for years before his most recent tenure, Manfre has never made clear why an auditor only recently flagged them.
Bolante is seeking back pay and restitution of what she lost including, possibly, her job. The lawsuit will not go away if the sheriff’s office changes hands–even if a new sheriff were to invite Bolante back to her old job, McLeod said, as her claim would persist against the office itself, with restitution of back-pay still sought.