Local elections are taking place in Jacksonville on Tuesday. The most televised and advertised races are the races for mayor and sheriff. The Jacksonville Business Journal reported, “If you’ve seen more negative commercials on TV, it’s not just your imagination –Mayor Alvin Brown and Lenny Curry have raised record dollars this year…. We have almost tripled what was spent in the previous mayoral race.” A week ago, candidates for sheriff, Ken Jefferson and Mike Williams, “answered questions on gangs, violent crime, budgets, race relations, hiring and training.” (news4jax.com) As a Jacksonville criminal lawyer, I am very familiar with crime in our community. When you think of crime, you think of the city’s murder rate. You may think of robbery, burglary, or theft in Jacksonville. A crime that you do not hear a lot about is official misconduct. However, during election season, we hear allegations of misconduct against candidates. We see what many people consider to be “mudslinging” which is defined as “an attempt to discredit one’s competitor, opponent, etc., by malicious or scandalous attacks.” (dictionary.com) With the 2016 presidential election coming up, we will see more allegations about the presidential candidates.
When you hear about allegations against political officials, you may ask yourself, “Can these politicians be arrested?” “Is there a law criminalizing political misconduct?” In the State of Florida, there is a Florida criminal law that penalizes official misconduct. Florida Statute Section 838.022 states:
(1) It is unlawful for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to another, to:
(a) Falsify, or cause another person to falsify, any official record or official document;
(b) Conceal, cover up, destroy, mutilate, or alter any official record or official document or cause another person to perform such an act; or
(c) Obstruct, delay, or prevent the communication of information relating to the commission of a felony that directly involves or affects the public agency or public entity served by the public servant.
(2) For the purposes of this section:
(a) The term “public servant” does not include a candidate who does not otherwise qualify as a public servant.
(b) An official record or official document includes only public records.
(3) Any person who violates this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
To be convicted of official misconduct under Florida law, the defendant must be considered a public servant. A public servant is defined in Florida Statute Section 838.014(6). This law defines a “public servant” as:
(a) Any officer or employee of a state, county, municipal, or special district agency or entity;
(b) Any legislative or judicial officer or employee;
(c) Any person, except a witness, who acts as a general or special magistrate, receiver, auditor, arbitrator, umpire, referee, consultant, or hearing officer while performing a governmental function; or
(d) A candidate for election or appointment to any of the positions listed in this subsection, or an individual who has been elected to, but has yet to officially assume the responsibilities of, public office.
In Gonot v. State, the Florida Fourth District Court of Appeals decided whether a candidate for mayor committed official misconduct during the election race. The defendant, Stephen Gonot, was accused of falsifying “a campaign report as part of his campaign for mayor of Deerfield Beach. On appeal, appellant focuses on section 838.022(2)(a), which defines ‘public servant’ as not ‘includ[ing] a candidate who does not otherwise qualify as a public servant,’ for the argument that ‘he was not a public servant at the time of the alleged offense’ but was ‘merely a candidate for public office.’” The defendant was not only a candidate for mayor, but he was also a city commissioner at the time of the offense. The court did not agree with the defendant’s reasoning holding:
“Chapter 838 defines ‘public servant’ as including ‘[a]ny officer or employee of a state, county, municipal, or special district agency or entity.’ § 838.014(6)(a), Fla. Stat. (2007). The statute distinguishes a mere candidate from a public job or office holder in order to reach the evil of public servants misusing their office. Here, appellant was not just a candidate at the time of the offense; it was his dual status as a candidate and an incumbent commissioner that brought him within the ambit of the statute. This fact distinguishes this case from Clement v. State, 895 So.2d 446 (Fla. 2d DCA 2005), where the defendant was only a candidate who did not hold any public office at the time of the offense.” Gonot v. State, 112 So. 3d 679, 680 (Fla. 4th DCA 2013)