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Legal Affairs

Florida cities to sue state over new “burdensome and intrusive” financial reporting requirements

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By
Norine Dworkin

Editor in Chief

Friday, February 2, 2024

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Thirty officials from 18 cities — Destin to Key Biscayne — have joined a lawsuit challenging the new requirements that municipal officials file financial disclosure Form 6. City officials from Winter Garden, Ocoee, Oakland and Windermere have either declined to join or taken a wait and see approach.

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Update: Twenty-six municipalities and 74 elected officials joined two lawsuits filed Feb. 16 in federal and state courts to overturn the law that requires officials of small cities, towns and villages to file the Form 6 financial disclosure form, beginning this year. The lawsuits were filed in the U.S. District Court for the Southern District of Florida in Miami and the Second Judicial Circuit Court in Leon County. The lawsuits assert that the new law violates the First Amendment and the privacy clause of the Florida Constitution. 



Thirty officials and the 18 municipalities they represent have joined a lawsuit, to be filed later this month, that will challenge the new in-depth financial reporting requirements for municipal leaders that went into effect Jan. 1. The jurisdiction is still to be determined, according to lead attorney Jamie Cole of the Miami law firm Weiss Serota Helfman Cole + Bierman.


City, town and village officials are now required to file the same Full and Public Disclosure form, known as Form 6, submitted annually by the governor, state lawmakers, county commissioners, school board members and other high-level officials. Form 6 documents net worth, assets/liabilities over $1,000 and business clients.


The resolution that Weiss Serota Helfman Cole + Bierman sent to city attorneys and city managers with its invitation to join the lawsuit, describes Form 6 as “substantially more burdensome and personally intrusive than the Form 1” that municipal level officials have been filing.


According to the resolution, the new requirements violate officials’ rights to privacy under the Florida Constitution, free speech under the First Amendment and due process as many officials were already in office when the financial filing requirements were changed. The resolution also claims that the new requirements would create the potential for burglary, extortion and identity theft and deter qualified residents from running for office.


The resolution claims that other states don’t require this level of disclosure from municipal officials. “…even the President of the United States and members of the U.S. Congress are not required to make such extensive disclosures," the document reads. 


[Starting with GOP Michigan Gov. George Romney (Mitt’s dad) during the 1968 election, it’s become customary for presidential candidates to release their tax returns. Only Gerald Ford and Donald Trump have not shared their returns.]



$10,000 buy-in

The law firm is charging a $10,000 flat fee to represent Florida municipalities and their officials in the lawsuit.


In addition to Key Biscayne and Destin, other cities that have joined the lawsuit to date include: Golden Beach, Indian Creek, Miami Springs, Lighthouse Point, Town of Palm Beach, North Bay Village, Bal Harbor, Weston, Delray Beach, Safety Harbor, Cooper City, Coral Springs, Marco Island, St. Augustine, Wilton Manors and Margate.


Windermere, Ocoee and Oakland have not joined the lawsuit, according to officials in those municipalities.


Robert Frank, Ocoee’s city manager, told VoxPopuli in an email that “although there has been some concern about the new reporting requirements, no directives had been given to staff” and there have been “no internal discussions” regarding joining the lawsuit.


For Oakland Mayor Kathy Stark, the $10,000 buy-in was too high.


“We’re not going to spend that kind of money, but we do support the suit,” she said at the town’s Jan. 23 commission meeting


Winter Garden is still mulling its options, according to City Manager Jon Williams. One possible attraction: a temporary injunction will likely shield named plaintiffs from having to file Form 6 while the lawsuit works its way through the courts.


Explaining the lawsuit during Winter Garden’s Jan. 26 city commission meeting, City Attorney Kurt Ardaman noted that “other cities have joined the lawsuit because of the injunction.”


Ardaman said that “most people” he had talked with about Form 6 found the filing requirements “an overreach.” If the lawsuit succeeds, he continued, “you would not be subject to ever having to disclose that broad, detailed report of Form 6.”


Williams told VoxPopuli in a Thursday email that he anticipated discussions to continue with individual commissioners.


“This very well may be left up to each Commissioner to pursue on their own, if they so desire,” he wrote.


Commissioner Mark Maciel, who represents Winter Garden's District 3, told VoxPopuli that Form 6 had no bearing on his decision to withdraw from the 2024 race after qualifying. "I don't think Form 6 should be necessary for local officials, but it would not be a show stopper for me," he said via text.



How did we get here?

Before the 2023 legislative session, elected officials in cities, towns and villages were only required to file what’s known as Form 1 with the state Commission on Ethics. Filed annually, Form 1 asks for information about income sources over $2,500 (apart from salary), business interests and personal property and liabilities that exceed $10,000. But it doesn’t get too deep into the financial weeds.


Last year, GOP State Sen. Jason Brodeur, who represents Seminole County and parts of Orange County, introduced SB 774, which, after Gov. DeSantis signed it, amended Florida Statute 112.144 to require that small-town officials disclose their assets and liabilities like other Florida leaders. Municipal officials make a Hobbesian choice between divulging what are often confidential client relationships, sharing their tax returns (or listing everything they own worth $1,000) or quitting local government.


Brodeur told the Palm Beach Post in December that the Form 6 requirement increases transparency and puts small-town officials on par with “everyone else” in public office. The Commission on Ethics supports the legislation. 


However, the unintended consequences have been a stampede of local officials out of office. In McIntosh, a tiny town outside of Gainesville that doesn’t even number 1,000 residents, four of the five council members resigned in December, according to the Ocala StarBanner.


“Taxpayers deserve transparency. If a simple disclosure that hundreds of other elected officials already do makes someone quit, then voters should be glad,” Brodeur told the Palm Beach Post.


“At last count significantly more than 100 local government elected officials have resigned rather than fill out Form 6,” government law expert Clifford Shepard, founding partner of Shepard Smith Kohlmyer and Hand in Maitland, told VoxPopuli in an email. “Hard to know how many folks decided or will decide against running when they learn they have to complete Form 6.”


Shepard said he is concerned about “the smaller towns and cities where the pool of those willing to run for office is already small.”


Like Oakland, which until 2022, hadn’t had an election in 16 years. Or Windermere, where six of the last 11 elections, including this year’s, have been cancelled because there were no challengers to those who wanted town council seats.


Molly Rose, told VoxPopuli in a Thursday phone interview that she resigned from the Windermere Town Council rather than file Form 6. Her husband — not a council member — didn’t want their tax returns made public. Rose had re-joined the town council in 2022 (after previously serving eight years) when Town Manager Robert Smith personally called her to fill an open seat that had no takers. Now she’s on the town’s Development Review Board where she will only need to file Form 1.


Rose said before she resigned she looked at how other public officials handled their Form 6 disclosures without making their tax returns public. “You could list all of your ownings over $1,000 bucks,” she said. “I just thought that would be ridiculous. The list would be huge.”


“I looked at their forms online, and I went, Oh, come on! You could tell that they weren't doing it fully,” she said. “So my option was to do what they did and do a partial list of our ownings.” She ultimately decided it wasn’t worth it because her term was ending in March. “You’d have to get a tax guy to help you fill it [Form 6] out properly. And we don’t get paid a cent. Not one cent.”


Rose doesn’t believe the extra reporting will reveal any corruption.


“They couldn’t discover that,” she said. “It’s not even gonna blow the whistle and show anybody anything.”

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