From Attorney General Bill McCollum
AG <.@myfloridalegal.com> Tue, May 26, 2009 at 1:03 PM
The Office of Attorney General Bill McCollum has received your email responding to this office’s earlier email of May 13, 2009.
This office is precluded by law from providing legal advice or opinions to private individuals. Thus, this office suggested that you may wish to consult a private attorney who would be able to provide you with the legal advice this office is precluded from offering. In an effort to be of assistance, however, this office attempted to provide you with information as to whom you might contact on this matter.
In addition, as this office noted in its previous email, the Governor, under part II of chapter 27, Florida Statutes, has the authority to issue executive orders assigning 'special prosecutors,' which are state attorneys assigned to handle criminal matters outside of their particular circuits. As to information regarding the exercise of that authority, you should contact the Governor’s Office. I would note, however, that in authorizing the Governor to appoint a special prosecutor, section 27.14, Florida Statutes, provides that if a state attorney is "disqualified to represent the state in any investigation, case, or matter pending in the courts of
his or her circuit or if, for any other good and sufficient reason, the Governor determines that the ends of justice would be best served, the Governor may, by executive order filed with the Department of State, either order an exchange of circuits or of courts between such state attorney and any other state attorney or order an assignment of any state attorney to discharge the duties of the state attorney with respect to one or more specified investigations, cases, or matters, specified in general in the executive order of the Governor." (e.s.)
As this office noted, the mediation program operated by this office is voluntary only and both sides must agree to participate. This office has no authority under the statutes to compel an agency to agree to mediation.
Article III, section 17, Florida Constitution, sets forth the officers subject to, and procedures for, impeachment, providing in subsection (a):
“The governor, lieutenant governor, members of the cabinet, justices of the supreme court, judges of district courts of appeal, judges of circuit courts, and judges of county courts shall be liable to impeachment for misdemeanor in office. The house of representatives by two-thirds vote shall have the power to impeach an officer. The speaker of the house of representatives shall have power at any time to appoint a committee to investigate charges against any officer subject to impeachment.”
Wilful violations of the Public Records may constitute a criminal violation. As stated in the Government in the Sunshine Law Manual (an abridged edition of which is available online at: http://www.myfloridalegal.com/sun.nsf/manual),
Section 119.10(1)(b), F.S., states that a public officer who knowingly violates the provisions of s. 119.07(1), F.S., is subject to suspension and removal or impeachment and commits a misdemeanor of the first degree, punishable by possible criminal penalties of one year in prison, or $1,000 fine, or both. See State v. Webb, 786 So. 2d 602 (Fla. 1st DCA 2001) (s. 119.10 authorizes a conviction for violating s. 119.07 only if a defendant is found to have committed such violation "knowingly,"; statute cannot be interpreted as allowing a conviction based on mere negligence). And see s. 119.10(1)(a), F.S., providing that a violation of any provision of Ch. 119, F.S., by a public officer is a noncriminal infraction,
punishable by fine not exceeding $500. Cf. s. 838.022(1)(b), F.S. (unlawful for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to another, to conceal, cover up, destroy, mutilate, or alter any official record or official document or cause another person to perform such an act).
A state attorney may prosecute suits charging public officials with violations of the Public Records Act, including those violations which may result in a finding of guilt for a noncriminal infraction. AGO 91-38.”
Moreover, as noted in the manual:
“When a method for removal from office is not otherwise provided by the Constitution or by law, the Governor may suspend an elected or appointed public officer who is indicted or informed against for any misdemeanor arising directly out of his or her official duties. Section 112.52(1), F.S. If convicted, the officer may be removed from office by executive order of the Governor. Section 112.52(3), F.S. A person who pleads guilty or nolo contendere or who is found guilty is, for purposes of s. 112.52, F.S., deemed to have been convicted, notwithstanding the suspension of sentence or the withholding of adjudication. Id. Cf. s. 112.51, F.S., and Art. IV,
s. 7, Fla. Const.”
Thank you for contacting the Attorney General’s Office.
Tuesday, May 26, 2009
From Attorney General Bill McCollum
I received the following reply to my email to the Assistant Attorney General from the the Attorney General's Office: