State Attorney Phil Archer Issues Response to Rep. Randy Fine’s Request to Investigate Commissioner Curt Smith

Fine requested investigation of Smith for 'criminally misusing his office to campaign'

BREVARD COUNTY • PALM BAY, FLORIDA – State Representative Randy Fine, R-Palm Bay, sent a letter to State Attorney Phil Archer on Monday requesting an investigation and potential prosecution of County Commissioner Curt Smith for using his official position to campaign for elected office.

State Attorney Archer issued his response to a letter from Rep. Fine requesting an investigation of sitting Brevard County Commissioner Curt Smith for criminally misusing his office to campaign.

State Attorney Archer denounced Fine’s allegations of “meddling” in local elections and any inference that he could not objectively conduct an investigation into this matter because of an endorsement.

See the letter in its entirety below:

Rep. Randy Fine
State Representative, District 53
2539 Palm Bay Rd., N.E. Palm Bay, Fl. 32905

Dear Rep. Fine:

I received your letter of July 30, 2018, requesting my office conduct an investigation of Brevard County Commissioner Curt Smith for violating Florida Statute Sect. 104.31 (2) for engaging in political campaigning for elective office while on duty. You are correct that an “employee” of the state, county or any political subdivision is prohibited from such activities while on duty. However, Commissioner Smith is not an employee. He is an elected “officer” and as such the provisions of subsection (2) do not apply to him.

Apparently, you did not fully read Section 104.31 in its entirety. If you had, you would see that subsection (1) specifically includes both “officer” and “employee” under the definition of persons that are prohibited from the political activities described in subsection (1). Those activities include using your official authority or influence to interfere with an election or coercing or influencing another person’s vote or coercion to donate to a party or candidate. Obviously, no one should be allowed to do those activities at any time whether they are an officer or an employee and whether they are on duty or off duty. It expressly allows an officer or employee to express their opinions on all political subjects and candidates. It is the coercion and improper use of authority to force someone to act that is the object of this prohibition.

Subsection (2), however, specifically leaves out “officer” under the definition of persons that are not allowed to conduct political activity while on duty and only includes an “employee’ This makes perfect sense as an elected official is always on duty 24/7 from the moment they take office. There is no off duty when you are elected to hold office. An elected officer is not considered an employee. It does not matter how you are paid as you suggest in your letter. For example, while you and I receive a salary from the State of Florida, we are not an “employee” of the state for purposes of this statute. If the provision in (2) applied to elected officials you would never be able to participate in any campaign activities since you are never off duty. Obviously, the legislature made a deliberate decision to omit an “officer” from this section for good reason.

I am also in receipt of a copy of a letter you wrote to Governor Scott requesting a special prosecutor be appointed to investigate this matter because you had discovered that I had endorsed Commissioner Smith in his re-election bid. First of all, I do not agree and highly object to your characterization that I or Sheriff Ivey are “meddling” in local elections by endorsing or supporting local candidates for elected office. Your use of that term is surely deliberate and used to cast a negative spin on our participation in the political process. I find it most curious that you criticize us for endorsing candidates when in fact you actively sought and used an endorsement from Sheriff Ivey in your own “local” election. Apparently, “meddling” only matters when the endorsement is not of value to you.

In fact, using your official authority to publish an unfounded complaint of a criminal act against a candidate during his election for violation of a statute that clearly does not apply could more accurately be construed as meddling and a possible violation of subsection (1) as previously discussed. While I am sure your filing of the complaint and publication through a press release was done in good faith amid confusion as to whether the statute applies so further action is not warranted, all elected officers and employees should be very cautious before alleging criminal acts during the campaign process.

Secondly, the mere fact that I endorse someone is not a sufficient reason in and of itself to prevent my office from investigating any criminal matter. There is simply no other connection between us that would raise any concern over the ability of my office to objectively investigate this matter. I have endorsed Commissioner Smith because I have observed his service on the board and believe he has done an outstanding job and deserves to continue that service for another term.

I have lived in Brevard County since 1960 and have proudly served this community as a public servant for 34 years as an Assistant State Attorney and since 2013 as the duly elected State Attorney. I have built my reputation on fairness and integrity and do not appreciate any implication that I serve otherwise. When I have an opportunity to share my opinion as to a particular candidate that I believe will be good for the county I love then I can assure you I will continue to do so. I understand completely and accept the fact that doing so may cause any decision I make to be closely scrutinized and potentially criticized. That comes with the job. I will leave it up to the citizens of this community to decide if I have made the right decision.

Sincerely,
Phil Archer

Cc: Gov. Rick Scott

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