By Francisco Alvarado, FloridaBulldog.org
Feb. 28, 2023 – UPDATE #2
Miami Federal Judge Beth Bloom on Wednesday, Feb. 28, granted a preliminary injunction on behalf of four municipal and county elected officials who sued the state of Florida to block a new law prohibiting them from being lobbyists while in public office.
Bloom ruled that the lobbying ban, which went into effect Dec. 31 of last year, infringed on the first amendment rights of the lobbyist plaintiffs: South Miami Mayor Javier Fernandez, Miami-Dade County Commissioner Rene Garcia, Palm Beach County Commissioner Mack Bernard and Leon County Commissioner Bill Proctor.
Bloom left intact another portion of the law that bans elected and appointed government officials from lobbying the agencies they represented six years after leaving them. A fourth plaintiff, Crystal Wagar, removed herself from the complaint after she resigned as a Miami Shores councilwoman shortly before the lobbying ban went into effect. Wagar is a paid Tallahassee lobbyist.
UPDATE #1 – Dec. 30, 2022 – Miami Shores Council Member Crystal Wagar resigned late yesterday.
Dec. 20, 2022 – A quintet of local politicians from Miami-Dade, Palm Beach and Leon counties is seeking to block a new state law enacting tougher lobbying restrictions on elected officials.
On Dec. 21, Miami-Dade County Commissioner Rene Garcia, South Miami Mayor Javier Fernandez, Miami Shores Council Member Crystal Wagar, Palm Beach County Commissioner Mack Bernard and Leon County Commissioner William “Bill” Proctor filed a federal lawsuit alleging the stringent measures taking effect on New Year’s Eve violate their constitutional rights.
The plaintiffs are suing Florida Attorney General Ashley Moody, Florida Chief Financial Officer Jimmy Patronis, the Florida Commission on Ethics Executive Director Kerrie Stillman and the ethics commission’s nine board members — all of whom are responsible for enforcing the new law.
Enacted during the most recent legislative session, the law prohibits every elected official in Florida from working as a lobbyist while holding public office, and extends an existing two-year lobbying ban when they leave office to six years. The law was enacted as a result of a 2018 state constitutional amendment approved by nearly 80 percent of Florida voters.
At an emergency hearing Thursday, Miami U.S. District Judge Beth Bloom denied the plaintiffs’ request for a temporary stay, despite their attorney Benedict Kuehne’s argument that the public would suffer “no harm” by delaying the new law’s implementation for a few weeks until the state can respond to the lawsuit.
FLORIDA AG’S OFFICE DEFENDS LAW
Elizabeth Teegen, Florida’s chief assistant attorney general, said the state would be ready to present its arguments on Jan. 27, when the next hearing is scheduled. “That gives us adequate time to do so,” Teegen said via Zoom. She did not respond to Florida Bulldog email and voicemail requests for comment.
A Florida ethics commission spokesperson said the agency is being represented by the attorney general’s office, and declined further comment.
In addition to Kuehne, the quintet has assembled an all-star legal team that includes former South Florida U.S. District Attorney Kendall Coffey; Tallahassee rainmaker, uber-lobbyist and attorney Ron Book, and Scott Hiaasen, who was a Miami Herald investigative reporter in his previous career.
Following the hearing, Hiaasen told Florida Bulldog that some of his clients, as well as dozens, possibly hundreds, of elected officials across the state will have to decide in the next 48 hours whether to quit public office or their private jobs. “It is difficult to assess what type of conduct is prohibited,” Hiaasen said. “The law is pretty vague. They may be in a position that they are not sure what they are doing constitutes lobbying and if they are running afoul of the law.”
The new law is forcing some elected officials who may not necessarily be employed as lobbyists, but have dealings with government agencies that require them to register as lobbyists, into leaving public office “at the expense of the voters” who put them there, Hiaasen said.
NEW LAW UNCONSTITUTIONAL?
The new law and the amendment that enacted it, Hiaasen said, are unconstitutional. “It runs smack into the First Amendment, which irrefutably provides protection for lobbying activities,” he said. “The [new] regulations going into effect are so broad and so lengthy in duration that they are impermissible under the U.S. Constitution.”
Lobbying has “unfairly become encrusted with insidious connotations,” but the practice is “essential to ensure the exchange of information and ideas between government decision makers and segments of the public who may be directly impacted,” the lawsuit states.
Of the five plaintiffs, only Bernard and Proctor don’t currently have private jobs that involve lobbying government agencies. However, the Palm Beach and Leon County politicians want the ability to lobby the governments they served after leaving office under the current two-year ban. They oppose the new six-year ban. Bernard and Proctor did not respond to Florida Bulldog emails seeking comment.
However, the new law immediately impacts Wagar, who earlier this month accepted a job with the Miami office of national lobbying firm, The Southern Group. Shortly after Thursday’s hearing she emailed her resignation to Village Attorney Sarah Johnston.
Wagar acknowledged she represents clients in front of government bodies, requiring her to register as a lobbyist. She did not mention she recently landed a job with The Southern Group, a lobbying firm that represents Miami Shores in Tallahassee.
“While I do believe [the new law] will be deemed unconstitutional,” Wagar wrote, “I cannot serve the remainder of my term, which is deeply regrettable.”
Wagar is already in violation of another state law that prohibits public officials from accepting employment from entities doing business with their governments.
Wagar has attended two village council meetings this month, including a special hearing on Wednesday to consider applicants for a vacant council seat, but she has not publicly disclosed her recent employment with Southern, which has a contract to lobby the Legislature and the governor’s office on behalf of Miami Shores. She also did not respond to a voicemail seeking comment.
COMMISSIONER, MAYOR NOT QUITTING
The two other plaintiffs, Garcia and Fernandez, could also be subject to resigning their elected positions or their private jobs even though they are not currently lobbying any government agencies. According to the lawsuit, Garcia recently co-founded New Century Partnership, a business consulting firm that provides lobbying and government affairs services. The county commissioner “anticipates providing immediate lobbying services to his clients,” the complaint states.
A former state senator elected to the Miami-Dade County Commission in 2020, Garcia told Florida Bulldog he is not resigning as a county commissioner because he is not doing any government work through New Century, but that the company does provide lobbying services.
He said he also recently invested in a Miami Lakes medical center, and the new law would prohibit him from advocating for its patients in Tallahassee and Washington D.C.
He denied trying to subvert the will of Florida voters, insisting the Legislature went beyond the intent of the 2018 amendment.
“When you start limiting a person and their First Amendment rights that goes against the U.S. Constitution,” Garcia said.
Fernandez, who won South Miami’s mayoral race in November, is a partner with the law firm Sanchez-Medina, Gonzalez, Quesada, Lage, Gomez & Machado, which represents clients before county and municipal boards and agencies, the lawsuit states.
In a phone interview, Fernandez said he had one client he represented for 15 years before city and county governments that required him to register as a lobbyist. But he is not resigning his elected post, Fernandez added.
“I had to stop representing him,” Fernandez said. “My intention is to continue to serve in public office. The big issue is if the Florida Ethics Commission were to rule that no one at my firm could do lobbying work. Then I would have to reconsider.”
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