Suspend Broward sheriff for agency screw-ups? That might be more harder than Republicans think

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The Florida constitution gives governors authority to suspend public officials for malfeasance, misfeasance, commission of a felony or neglect of duty. It happens fairly routinely: Rick Scott has suspended at least 40 officials during his seven years in office, his predecessor Charlie Crist booted 37 in his first 36 months as governor. And there’s rarely even the tiniest peep of public protest.

But suspensions, by Scott and his predecessors, have almost always been in connection with criminal charges filed against the officials who get kicked out. Now, as the tide of criticism of Broward County Sheriffs Scott Israel’s handling of events around the Stoneman Douglas High School shootings steadily rises, we may be headed for a legal battle over just what the phrase “neglect of duty” means.

And experts say it’s not so clear.

“Everybody kind of agrees public officials accused of illegal acts should be removed, at least until their guilt or innocence is established,” said Richard Hornsby, an Orlando attorney who writes a legal blog and has studied the constitutional provision on suspensions.

“But when it comes to neglect of duty — when a public official doesn’t do what’s expected by law in terms of his job — that gets very nebulous.”

Richard Hornby

Richard Hornsby, an Orlando attorney who writes a legal blog and has studied the constitutional provision on suspensions, says the constitution is ‘nebulous’ when an official like Sheriff Israel has not been accused of a crime.

Israel has been under almost constant attack for the way his office performed and during the Stoneman Douglas shooting. Though Broward deputies had taken at least 23 worried calls about the accused shooter and his family — and possibly as many as 45, according to the latest information — in the years before the attack, they failed to take action. And during the shooting, at least one Broward deputy — and perhaps as many as four — remained outside the building, staying away from the shooting.

The most combative attacks on Israel have come from Republican legislators in the House. Seventy-four of them demanded that Scott suspend Israel for “incompetence and neglect of duty.” The governor has so far deflected them by asking the Florida Department of Law Enforcement to investigate the handling of the case.

If Scott decides FDLE has turned up evidence of neglect of duty, he would presumably remove the sheriff from office. If that happens, the state senate would have three months to open hearings on the suspension, and would have to either uphold or reject the suspension within 60 days.

Diane Kotey (3)

Phyllis Diane Kotey, a Florida International University expert on Florida’s constitution, says there is no consensus on what is ‘neglect of duty,’ meaning there is no real precedent guiding Gov. Rick Scott on what action to take on Sheriff Scott Israel.

“The problem is, there’s no definition in the state constitution about what constitutes ‘neglect of duty,’ ” said Phyllis Diane Kotey, a Florida International University law school expert on Florida’s constitution. “And there’s really no obvious precedent that I know of to help us.”

The most similar case anybody can recall isn’t really a case because it ultimately didn’t happen. Last year, Scott clashed with newly elected Orlando State Attorney Aramis Ayala after she announced she wouldn’t seek the death penalty for anyone, ever.

Scott had all of Ayala’s existing death penalty cases transferred to other districts, a controversial action that was later approved by the Florida Supreme Court, and seemed on the verge of going along with a call by other Republicans to suspend her.

But at the last minute Ayala offered a compromise, creating a panel of assistant prosecutors who would decide whether to pursue capital punishment in her office’s cases, and Scott backed away.

Aramis Ayala (3)

Orlando State Attorney Aramis Ayala announced she would not seek the death penalty in any cases. Republicans were outraged, but a solution was found.

“Ultimately, that was more of a political decision,” said Hornsby. “Did Scott really want to be the guy who suspended the first duly election African-American states attorney in Florida? Did she really want to be suspended? … Basically, it gave them both a way to save face.”

Even if there had been no compromise, the dispute between Scott and Ayala wouldn’t have offered many parallels to the case of Israel. There was no question that Ayala alone was responsible for the death-penalty policy in her office.

But can Israel be accused of neglect of duty if FDLE finds a few of his deputies botched their jobs? Should that decision be made by the governor now when voters will have a chance to render their own verdict in three years?

“The intent of the constitutional provision on suspensions is that the governor, as the top executive officer in the state, is in charge of all the other executive officers doing their jobs,” said Kotey. “Everybody accepts that part of an executive’s job is being responsible for training your employees…

“I don’t know that you’re necessarily responsible for specific action of one specific [deputy] on one specific occasion. But if the officer has not been trained well, and his specific action is the manifestation of his lack of training, well, maybe.”

Hornsby doubts that the failure of a deputy to enter the scene of the shooting — or even deputies, if more than one is proven to have done it — can be labeled neglect in a confusing, fast-moving situation. But Israel may be more vulnerable, he said, if it’s shown that his office consistently, over a period of years, failed to react to warnings that Cruz was showing signs of dangerous behavior.

Kotey agreed. But, she added, there’s still a question about whether the decision shouldn’t be left to voters.

“Should the governor react when the voters have the ability to remove that individual?” she wondered aloud. “I’m not sure. But then the question of waiting for the voters to remove him becomes difficult if there’s the possibility of others coming to harm during the wait.”

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