Cape Coral Council member seeks court intervention in residency complaint

Cape Coral City Councilmember Patty Cummings has petitioned the court to stop the Florida State Attorney from pursuing an election investigation into whether she was qualified to run in the 2022 election.

"The City Council’s attempts to circumvent the due process requirements set forth in the Charter to inappropriately expedite Petitioner’s removal are inappropriate, violate Petitioner’s due process rights, and should not be countenanced," the petition said.

Last month, the city voted to forward to the state attorney an investigation into Cummings that found issues with her residential qualifications to run for the district she represents, District 4.

Cummings's attorney, Jay P. Lechner, filed for a “writ of prohibition” on July 13 to prohibit the further review of her election qualifications.

A “writ of prohibition" can be issued by a superior court that prevents an inferior court or tribunal from exceeding its jurisdiction or usurping jurisdiction to which it has not been given by law.

Lechner argues the city has exceeded its authority by referring the matter to the state attorney, that the state attorney has no jurisdiction to investigate whether Cummings is qualified for her office, and that the city does not have the power to remove Cummings from her office.

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Background on investigation

Cummings beat incumbent Jennifer Nelson by almost a thousand votes in November to represent District 4.

In early 2023, an anonymous letter sent to Gov. Ron DeSantis claimed Cummings never legally resided in the home that she listed at the time of her qualification and that she's still not living in the district she represents.

The city hired investigator Vicki L. Sproat, an attorney with Boy Agnew Potanovic Miller of Fort Myers, on March 24 to see if Cummings was a District 4 resident at the time she filed paperwork to run as a candidate in May 2022 and at all times after that.

The final report found that Cummings was neither a full- nor part-time resident of the district when she ran, won her seat, and was sworn in as an official.

Cummings previously said she had been affected by Hurricane Ian and looking for a full-time residence since taking office. Her current address places her in her district, District 4.

The investigation also confirmed Julia Ettari wrote the letter. She is a Cape Coral resident and former volunteer on Cummings's campaign.

In June, after a 7-1 vote, Cape Coral City Council turned the investigation over to the state attorney's office for further review and a possible follow-up.

Mayor John Gunter previously said the state attorney's office will review and "complete" the investigation through the state attorney's subpoena power.

Councilmembers Dan Sheppard and Cummings did not participate in the investigation. The property owners of the homes where Cummings said she resided also did not respond to the investigator's inquiries.

Cummings and Lechner dispute several of the investigation's findings and said Ettari had provided false allegations in her letter.

The petition said that Ettari had threatened Cummings after she refused to provide her with a job with the city of Cape Coral.

"Sproat’s primary witness was Julia Ettari and the foremost source of evidence was Ettari’s unsworn interview. Sproat made no reference to Ettari’s prior blackmail attempts or other public records that would be highly relevant to her credibility and/or criminal history," the petition said.

They also said they provided the investigator with Cummings' driver's license and voter registration and a statement from the homeowner she allegedly rent from as conclusive proof of her residency in District 4.

"Because it did not fit her narrative, Sproat also ignored the sworn statement of Jill Hiatt, who unambiguously declared that “Patty Cummings was a resident of my home at 3827 Palm Tree Blvd., Cape Coral, Fl. beginning April 2022 – Feb. 2023," the petition said.

Sproat was not available for comment as of Monday afternoon.

Cummings's urges for petition to be issued

Lechner said that nowhere in the city charter does the city council have the ability to delegate its "quasi-judicial investigative powers" to the state attorney.

"The method to evaluate a councilmember’s qualifications is – consistent with procedural due process – to provide notice and a full evidentiary hearing where the Council has the power to subpoena witnesses, administer oaths and require the production of evidence. Nowhere in the Charter does it provide an exception to this procedure by allowing a referral to the State Attorney," the petition said.

Moreover, Lechner argues that the State Attorney's jurisdiction is "circumscribed by statute."

"Florida Statute § 27.02 provides that the duties of the State Attorney are to 'prosecute or defend on behalf of the state all suits, applications, or motions, civil or criminal, in which the state is a party….' Here, the state is not, nor could it be, a party to the City Council’s investigation and, therefore, the State Attorney lacks jurisdiction," the petition said.

In the petition, Lechner also said any action taken to remove Cummings from her elected position would violate the Cape Coral Charter and her due process rights.

"The City Council does not have the power to remove Petitioner from her seat in contravention of the will of the voters, as Fla. Stat. §112.51 reserves that power exclusively to the Governor and the Governor alone," the petition said.

When the complaint first surfaced back in March, Gov. DeSantis's office chose not to take action.

What's next?

Samantha Syoen, State Attorney’s Office 20th Judicial Circuit communication director, said in an email statement that the state attorney is continuing its investigation.

The city declined to comment on the matter.

"This is a council matter, it would be inappropriate for the City to comment," wrote spokesperson Melissa Mickey in an email statement.

On July 20, Lechner filed a motion for an expedited ex parte hearing so that Cummings may establish a “prima facie case,” meeting the sufficient evidence required, and ask the City Council of Cape Coral to "promptly show cause why the requested writ of prohibition should not issue.”

This article originally appeared on Fort Myers News-Press: Cape Coral Patty Cummings files petition against residency complaint