State ethics commission finds 'probable cause' Naples Mayor misused her power

The Florida Commission on Ethics has found evidence that Naples Mayor Teresa Heitmann misused her power.

In a closed session Dec. 2, the commission found "probable cause" the mayor:

·Misused her position when attempting to "steer city employees and city resources toinvestigate non-city related matters" to the benefit of herself and a friend

⋅Failed to disclose a gift oflegal services valued in excess of $100 as required by law

The commission did not find that Heitmann violated a Florida constitutional amendment "prohibiting abuse of office to obtain a disproportionatebenefit."

To do so, it would have needed to determine a "wrongful intent" to gain a special benefit "inconsistent with the proper performance" of her public duties.

In a statement, Heitmann said: "This is part of the process and I am looking forward to the opportunity to conclude the hearings and put these accusations behind me. It’s been a very difficult process and I look forward to clearing my name."

The findings stem from an ethics complaint filed by Brian Dye, the city's former director of technology services, in May 2021.

Heitmann denied the abuse of power allegations at a City Council meeting not long after Dye filed his complaint last year.

At the time, she said: "That is filled with a bunch of untruths."

More:Naples Mayor Teresa Heitmann accused of abuse of power; mayor denies allegations

In his seven-page complaint, Dye accused Heitmann of multiple ethical missteps and violations − from asking him to destroy public records and break Sunshine Laws to tapping into city resources and funds for the benefit of herself and a close friend to get "justice" after their personal phones and computers allegedly got hacked by the city's former law firm and others.

Complainant's attorney: Ethics commission's findings a "big blow" to city

Benjamin Yormak, Dye's attorney, based in Bonita Springs, said the ethics commission's findings demonstrate the credibility of his client's claims.

"We appreciate the commission taking the matter seriously and investigating what is a serious ethical matter. Certainly, Mr. Dye is vindicated to a large degree that what he complained of had merit," he said.

Now, he said, there will be further action, which could result in penalties against the mayor.

"Certainly, this has to be a big blow to the city and the mayor, to have probable cause findings from the commission on ethics," Yormak said.

More:Former Naples Mayor Bill Barnett files ethics complaint on Mayor Teresa Heitmann

In his complaint, Dye said that Heitmann accused the city's former attorneys, former mayor and political rival Bill Barnett and others of participating in the hacking, including an outside technology services firm.

She directed the city manager to "fire everyone she falsely accused of hacking," even after an investigation "cleared all staff," an order that violated the city charter, and state and federal laws, he said.

He contends the mayor not only retaliated against staff, but multiple city contractors for "perceived slights."

The mayor believed the alleged hacking, he said, had something, in part, to do with her friend's tracking of "land acquisition deals in the Naples area where people were buying properties, then selling them at a profit without ever putting a shovel in the ground."

He said the mayor accused Naples police of surveilling her and her friend after their phones were "taken over."

Ultimately, Dye said he made a criminal complaint to city police, but citing a conflict they referred the matter to the Collier County Sheriff's Office.

The Sheriff's Office, he said, declined to investigate because the mayor had accused Sheriff Kevin Rambosk and Barnett of "running a child prostitution ring at the Naples Municipal Airport," which they both denied.

The criminal complaint then got referred to the Florida Department of Law Enforcement, which found the mayor's actions "were not criminal enough to warrant their attention, as the most they could prosecute her for was a second degree misdemeanor," according to Dye.

The law enforcement agency, he said, told him to bring his concerns to the state ethics commission, so he did.

Former Mayor Barnett described the commission's findings as concerning.

"I am concerned, because you know, there is quite a few of us that saw, or at least were there, when these things happened," he said. "And, it just seems to go on and nothing happens."

Barnett filed a complaint of his own with the city's Ethics Commission over the allegations he ran a child prostitution ring. The commission dismissed his complaint based on a "lack of legal sufficiency" and a determination that his claims about untrue statements made by the mayor were outside its jurisdiction.

Heitmann has publicly denied making any such claims about Barnett, or Rambosk.

Mayor to decide next move after 'probable cause" findings

Lynn Blais, a spokeswoman for the state Commission on Ethics, said the next step after its probable cause findings will be for the mayor to decide whether she wants to proceed with a full evidentiary hearing before an administrative law judge, or to reach a settlement, with help from an advocate from the Florida Attorney General's Office.

"Either way, whether it goes to a full hearing, or there's a stipulated agreement, it goes back before the commission at a future date for final action," she said. "The commission, at that point, could reject or accept whatever is brought before them."

It's unclear how long it might take to resolve the matter, or when it will come back before the commission, with it now in the hands of the mayor and her advocate, Blais said.

Probably cause findings aren't rare, she said, but they're not common either.

Last year, there were 101 probable cause hearings and the commission found probable cause in 27 of those cases, with no action taken on all except five of them, Blais said.

When action is taken, she said, it's mostly in the form of civil fines , not removal from office. Fines can be levied at a maximum of $10,000 per violation, but they're usually a lot less, when ordered, Blais said.

A related wrongful termination lawsuit against the city continues to move forward

As the ethics case moves ahead, so too does a discrimination and wrongful termination suit Dye brought against the city in September.

In the suit, filed in Collier Circuit Court, he alleges the city let him go on April 6, 2022, stating that he's a "security risk."

He alleges the city wrongly fired him because of his disclosures and complaints about mismanagement, malfeasance and neglect, against Heitmann and other council members, which constituted "statutorily protected activity."

Instead of investigating his complaints, Dye alleges the city retaliated against him, "substantially and significantly" damaging his "career path."

He seeks a jury trial.

"Mr. Dye looks forward to adjudicating all of his claims before a jury of his peers," Yormak said.

That said, Dye is open to a settlement.

"Of course, we would welcome anything that would save the taxpayers money, while affording Mr. Dye all of the benefits he enjoyed as a city employee, so he's made whole again in the process," Yormak said.

The city has filed a motion to dismiss the suit, saying Dye wrongly filed it, failing to "timely exhaust his administrative remedies" as a first step.

City Council is expected to discuss the suit in an executive session, or behind closed doors, out of the public eye, during a regularly-scheduled meeting on Jan. 18.

A memorandum about the executive session on Wednesday's agenda states that it's to "discuss and obtain advice regarding settlement negotiations and strategy related to litigation expenditures."

The session between Council and its defense attorneys is expected to last an hour or less. The city manager and city attorney will also attend.

In light of the probable cause finding, Yormak said the city may be rethinking its legal strategy in the civil case, including the potential for a settlement.

Dye and Yormak won't be part of the executive session.

"The city is able to conduct these shade sessions for many different reasons," Yormak said. "One of them could be to discuss settlement. Another could simply be to discuss strategy. So, it's difficult to say exactly what the discussion would be."

Although minutes are taken during executive sessions, they often don't become public record until a court case gets resolved.

This article originally appeared on Naples Daily News: Florida Ethics Commission finds evidence Naples mayor misused her power