Toppino – What the Law Says

 

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Do you have the form?  I don’t have the form!  Who has the form?

Update:  Here is some information about possible exemptions for someone in Toppino’s situation.  (See paragraph 12.)  The story is still very garbled, but I imagine the “form” had to do with securing an exemption for the Toppino companies.  What a mess.

I started to look a bit deeper into the latest Toppino situation.  The Florida Keys Aqueduct Authority (FKAA) is all aflutter.  Apparently Toppino bid on an FKAA project and failed to file the necessary memorandum notifying the FKAA of the voting conflict.  There were rambling statements made to the press about some “form”.   A clerical error is being blamed for the mess-up.  (As in the administrative staff ate my homework.)

Here’s FKAA’s version of events as reported by KeysNews.com.

Charley Toppino & Sons did initially bid on the project and was the lowest bidder by nearly $20,000. However, the company withdrew the bid because a form Richard Toppino signed, agreeing to recuse himself and not influence the bid process, that was supposed to be filed with the Commission on Ethics was never sent.

It appears the FKAA administrative staff received the form but the staff forgot to send it to state officials or it was misplaced prior to the bids being opened, according to Zuelch. When Richard Toppino found out the paperwork was not sent, Toppino & Sons then withdrew its bid and Toppino agreed to recuse himself from any discussion or vote on the bids.

Mr. Toppino is a big grown-up boy with a big grown-up job.  He should be able to fill out a form all by himself.  And he should be perfectly capable of making sure the form gets turned in on time, too.  He shouldn’t need clerical staff to hold his hand.  At least I sure as hell hope not.

When Mr. Toppino chose to apply for a position on the FKAA board, he chose the responsibilities and the restrictions that go with it.  He should know better than anyone how much business his companies do with the FKAA.  Yet, he never said a peep when Kirk Zuelch downplayed the extent of Mr. Toppino’s business activities with the FKAA to the press.

To this day I still do not know exactly how much Toppino’s subcontracts on the Cudjoe Regional projects are actually worth.  I got a response regarding the outer islands, and recently submitted another public information request about the others.  Nothing yet.

FKAA brass also knew or should have known that Mr. Toppino’s presence on the board would create complications.  I don’t see why they couldn’t have been more proactive about addressing the issues before they actually became a problem.

Here’s what the law actually says about voting conflicts.  Bolding is mine.

(4) No appointed public officer shall participate in any matter which would inure to the officer’s special private gain or loss; which the officer 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; 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, without first disclosing the nature of his or her interest in the matter.

(a) Such disclosure, indicating the nature of the conflict, shall be made in a written memorandum filed with the person responsible for recording the minutes of the meeting, prior to the meeting in which consideration of the matter will take place, and shall be incorporated into the minutes. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.
(b) In the event that disclosure has not been made prior to the meeting or that any conflict is unknown prior to the meeting, the disclosure shall be made orally at the meeting when it becomes known that a conflict exists. A written memorandum disclosing the nature of the conflict shall then be filed within 15 days after the oral disclosure with the person responsible for recording the minutes of the meeting and shall be incorporated into the minutes of the meeting at which the oral disclosure was made. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.

That’s a lot of words, but it boils down to this:  Toppino was required to submit a memorandum notifying the FKAA Clerk of the conflict and abstain from the vote.  He was not to influence the decision in any way.  The memorandum would then be distributed to the other board members, read aloud at a public meeting, and included in the minutes.  It really is not that complicated.

I found this paragraph from the statute to be very interesting.

Whenever a public officer or former public officer is being considered for appointment or reappointment to public office, the appointing body shall consider the number and nature of the memoranda of conflict previously filed under this section by said officer.

I imagine this is why there’s such a kerfuffle over recording a simple memorandum in the minutes.  Certain folks don’t want Toppino’s conflicts on the record.  Just like they didn’t want his $6 million benefit from the Big Coppitt rebid on the record.  And just like they didn’t want his $9.5 million involvement on the Outer Islands project on the record.

In general, I question Toppino’s fitness to serve on the FKAA board because he and several close relatives have a significant ongoing business relationship with the FKAA.  As mentioned above, the FKAA has been less than forthcoming about the extent of that relationship.  Here is what the law says about public officers and ongoing conflicts of interest.  I bolded the most applicable bit.

(7) CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.

(a) No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties.

Sigh.  I’m not asking for perfection here.  I’m just looking for a good faith effort to protect the public interest.  At a minimum, Toppino and the FKAA need to follow the rules and tell the truth.  No hedging, no distortions, no lying by omission, no withholding relevant information, no excuses, no blaming “administrative staff” for their own lack of action.  This appointment was questionable from the start.  The more I learn the worse it gets.  The FKAA’s subsequent shenanigans only serve to confirm my initial suspicions.

I’ll be watching as this stooge-like performance continues to unfold.

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