Florida municipal leaders get Form 6 filing reprieve

Updated Thursday to include comment from Commission on Ethics. 

On Monday, Florida municipal leaders, who would have been required by a new law to file the highly detailed Form 6 financial disclosure forms for the first time next month, received a bit of a reprieve. United States District Court Judge Melissa Damian granted a preliminary injunction to prevent the state Commission on Ethics from enforcing the requirement.

“The record before this Court does not demonstrate that any change to the disclosure requirements for municipal officials is necessary at all, much less that the highly intrusive level of change effected by SB 774 was necessary when less alternative means were not even considered,” Damian wrote in her 33-page opinion granting the preliminary injunction.

“It was a very good decision. It’s certainly what we were looking for,” Jamie Cole, partner in  Weiss Serota Helfman Cole + Bierman, told VoxPopuli in a phone interview. Managing director of WSHC+B's Fort Lauderdale office, Cole is the lead attorney for the 175 elected officials who sued the state, seeking to overturn the law, SB 774, which went into effect Jan. 1.

The preliminary injunction applies to all state municipal officials as well as named plaintiffs.

Cole filed a pair of lawsuits on Feb. 16 in U.S. District Court for the Southern District of Florida in Miami and the Second Judicial Circuit Court in Leon County, arguing that mandating municipal-level elected officials and candidates to file what he has described as “the most intrusive form of financial disclosure that I am aware of in the entire nation,” violates their First Amendment rights.

Freedom of speech protects the right to speak but also protects against being forced to speak, Cole said.

“The government can’t tell you you have to say the Pledge of Allegiance. The government can’t say you have to put up a Donald Trump flag in front of your house,” he said. In this instance, he explained, “The government is requiring elected officials and candidates to say, My net worth is _____ and give a number. And they’re not allowed to say, None of your business. That is quintessential compelled, content-based speech. And under the U. S. Constitution, that's only allowed if the government can meet a very high standard.”

Under that standard, the state had to demonstrate that the additional information provided by Form 6 was necessary, more effective and less burdensome for reducing ethics complaints about municipal officials than the information the officials had been providing.

Since the Sunshine Amendment was added to the Florida Constitution in 1976, elected municipal officials had been submitting Form 1, which lists employers, major assets and primary income sources. Under SB 774, sponsored by Republican State Sen. Jason Brodeur who represents part of Orange County, municipal leaders were going to be required to fill out Form 6 by July 1, listing net worth, business clients and assets and liabilities over $1,000. The governor, state and county legislators and school board officials fill out Form 6. Fines for not filing financial disclosure forms can reach $1,500.

Brodeur told the Palm Beach Post in December that the law would put municipal officials on par with “everyone else” in public office and increase transparency.

Cole scoffs at that. Gov. Reuben Askew, the driver behind the Sunshine Amendment, “was the biggest transparency guy,” he said. When the constitutional amendment was drafted, state elected officials and constitutional officers were specifically included and municipal officials excluded. “The next year, the state legislature passed a state statute to include municipal officials, and Gov. Askew vetoed it because cities are different than counties and different than states,” Cole said. “They’re much smaller, and there’s less money involved. A lot of [municipal officials] don’t even get paid. So to require them to fill out this form is a lot different than counties or state officials.”

Judge Damian apparently agreed. In her withering opinion, she cited Brodeur for not having “empirical data or studies to support his opinion” and faulted the legislature for not doing its due diligence in researching whether “the information required by Form 6 is necessary or relevant” to reducing ethics complaints. “Defendants have not demonstrated a relationship between the interest of protecting against the abuse of the public trust and SB 774’s fulsome financial disclosure requirements …”

“Form one is certainly sufficient,” Cole said. “It discloses the sources of income. It identifies the assets. And that's what is the closest linkage to ethics issues,” Cole said. “The amount of net worth or the exact value of assets and the amount of liabilities and the amount of income has no bearing on any ethics issues.”

Asked whether they will appeal the preliminary injunction, Commission on Ethics spokesperson Lynn Blais said they don't comment on pending litigation.