Saturday, July 23, 2011

Suspended Deerfield Beach City Commissioner, Sylvia Poitier: 4 of 5 Charges Possibly Meritless

On Wednesday July  20, 2011 Sylvia Poitier`s lawyer, Johnny McCray, filed a motion for dismissal of 4 the charges brought against his client, Suspended Commissioner Sylvia Poitier, which you can read about here.  Charged brought about after local blogger, Chaz Stevens, filed 25+ complaints against Sylvia Poitier for a laundry list of offenses, which many say may have been encouraged and assisted by individuals at The City Of Deerfield Beach along with other entities with a vested interest.  However, after investigating Steven's many complaints the Broward State Attorney's Office came up with 5 charges, all misdemeanors, to bring against then Commissioner Sylvia Poitier, who was then promptly removed from office by Governor Scott on April 14, 2011.  
Is it a coincidence that Assistant CODB City Manager, Keven Klopp was in Tallahassee on April 12, 2011, two days before Governor Scott handed down his suspension sentence, lobbying and meeting with the Governor on City of Deerfield Beach business.  (Yeah,yeah, I know it was officially about the Pier...)  A suspension which conveniently removed a major obstacle to the City Staff's plan to impose a Utility Tax that they tout will help to improve upon our parks and create new ones, which many developers and their elected, appointed, and non-governmental friends could possibly benefit from.

* The Governor does have the power to remove any elected official from office for indictment of committing felonies or misdemeanors in relation to their office, but this power has been rarely utilized for cases involving misdemeanors of municipal or county elected officials. 

With that being said, let's talk about the case against Sylvia Poitier, which also mysteriously keeps getting postponed.  Allowing the City and all vested parties ample time without the biggest obstacle to their plan. (I may have mentioned my opinion on that subject here on my blog once or twice.)

By now, we should have all read the Arrest Affidavit issued on April 11, 2011 .  You should have noticed that the mandate of a form 8B-Memorandum of Voting Conflict...was predicated on FL Statute 112.3143 which states:
(3)(a)  No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.

Basically, if the elected official votes on an agenda item that will benefit or cause to benefit a relative then they must either not vote on the issue and declare the conflict or vote and declare the conflict.

This is the basis for the States case.  Is that part clear?

The State goes on to say that because Sylvia's brother, Lionel, was one of many creditors listed for the WDBA she should have filed a form 8B within 15 days after the vote if she believed that a "conflict of interest" could arise.  The State contends that because she did not file said form she violated FL Statute 839.13 which states:

(1)  Except as provided in subsection (2), if any judge, justice, mayor, alderman, clerk, sheriff, coroner, or other public officer, or employee or agent of or contractor with a public agency, or any person whatsoever, shall steal, embezzle, alter, corruptly withdraw, falsify or avoid any record, process, charter, gift, grant, conveyance, or contract, or any paper filed in any judicial proceeding in any court of this state, or shall knowingly and willfully take off, discharge or conceal any issue, forfeited recognizance, or other forfeiture, or other paper above mentioned, or shall forge, deface, or falsify any document or instrument recorded, or filed in any court, or any registry, acknowledgment, or certificate, or shall fraudulently alter, deface, or falsify any minutes, documents, books, or any proceedings whatever of or belonging to any public office within this state; or if any person shall cause or procure any of the offenses aforesaid to be committed, or be in anywise concerned therein, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Basically, if an elected official knows a conflict exist and still votes on an issue without declaring the conflict on 8B willfully with the intention on "dooping" the electors then they have falsified or caused to be falsified official records and it's a misdemeanor of the 1st degree.

Are you guys still with me?

The States whole case is based on Lionel receiving a "special gain or loss" from any of the votes Ms. Poitier abstained from or voted on from 2006 through 2010 with regard to the WDBA.  The possibility of Mr. Fergusan receiving a "special gain or loss" is adequate to satisfy the statute(s).  

So it is left for the State to prove that Lionel Fergusan or Sylvia Poitier would reasonably have made a "special gain or loss" from those votes in question per the Arrest Affidavit.

According to George Levesque, General Counsel for the Florida House of Representatives in a letter concerning "conflict of interest" he opined that because it appeared that "no Florida state court" had addressed the meaning of "special gains or losses" and since the Commission on Ethics had approached it and determined the following to be the meaning by rule and by statute:

"From a review of the Commission's opinions it is clear that the operative term is "special."  It is not enough for a member or one of the member's conflict relations to receive a benefit or adverse impact from passage or non-passage, they must receive a disproportionate impact compared to the rest of those affected by the measure in a large class or be part of a small impacted class."

He goes further and gives an example to the individual he was providing the opinion for and states that if the relative is paid an hourly rate and this rate would not change rather the vote is passed or not, then no conflict exist; therefore, there is no need to disclose.

Basically, unless the terms of repayment of Lionel's loan to the WDBA were dependant on Sylvia's vote(s) cast as a Commissioner, then no special gain would exist and therefore no need to disclose.

It is my contention that no "special gain or loss" would have been made by neither Sylvia Poitier nor Lionel Fergusan because the loan in question made to the WDBA by Lionel would have had to be paid back, regardless of any vote Sylvia Poiter made.  The WDBA would have had to come up with the money no matter what to repay Lionel's loan at the agreed upon interest rate.  And he nor Sylvia would have gained "special" or otherwise from the repayment of that loan.  The point about Ms. Poitier voting or abstaining is therefore mute and irrelevant because the statute was not broken and all charges stemming from said statute should be dropped.

Now this is just my contention and I am sure her lawyer has already figured out the legality of this arrest.  I will refer to the General Counsel's letter about the following in regard to public opinion.

"The Law grants some latitude to members based upon the recognition that they are citizens legislators with employment and lives outside their public service.  That concept sometimes may get lost in public discourse, and what may be legally tolerated conflict of interest may be viewed as inappropriate or corrupt in the court of public opinion."

With all that said, again I remind you that I am no lawyer, and do not hold a law degree.  I have not talked this over with a lawyer and is my interpretation of an opinion given to someone else specific to their case.  Please do not take this a legal defense, I am just making a point!

read.  I read. I read!

I have attached links to other cases for you to read regarding "Special Gain or Loss".

Is there a bigger scheme at play here, working against the citizens and residents and solely benefiting leagues of citie's elected officials, city managers and staff, developers, and their friends. Taking full advantage of the fact that many people do not read the facts and then develop informed opinions, do not get involved so they are educated to the real issues, and do not vote and basically accept things and do not fight.

Did Sylvia Poitier fall victim to a political landscape that she herself helped groom and nurture?? 

This is a question that you have to ask yourself.  One things for sure, at least to me, that something strange has, is, and will be going on in the City of Deerfield Beach, County of Broward, and State of Florida.

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