Ethics case update: Underhill answers admission request

The request was from the Florida Attorney General’s advocate to Commissioner Doug Underhill for his upcoming administrative hearing concerning the probable cause findings against him.

1.  ADMIT that you were elected to the Escambia County Board of County Commissioners, District 2, in November 2014.

Admitted

2. ADMIT that you have served continuously as an Escambia County Commissioner for District 2 from November 2014 to presently.

Admitted

3. ADMIT that by virtue of your position as a member of the Escambia County Board of County Commissioners, you are subject to the requirements of Part III, Chapter 112, Florida Statutes, Code of Ethics, from November 2014 through present.

Admitted

4. ADMIT that you are required timely file a “Quarterly Gift Disclosure,” CE Form 9, as long as you are a member of the Escambia County Board of County Commissioners.

Admitted

5. ADMIT that a “Quarterly Gift Disclosure,” CE Form 9, is required to be filed for non-family member-related gifts (donations) exceeding $100.

Admitted. However, Section 112.3148(8), Florida Statutes, does not require the disclosure of gifts prohibited by Section 112.3148(4) or Section 112,313(4), Florida Statutes, on a “Quarterly Gift Disclosure,” CE Form 9, is not required

6. ADMIT that County Attorney Alison Rogers advised you to file CE Form 9 relative to the GoFundMe page for contributions exceeding $100.

Admitted

7. ADMIT that you were aware that you had to file CE Form 9 for contributions exceeding $100 to the GoFundMe page when you created the GoFundMe page.

Admitted

8. ADMIT that you could determine the identity of donors who wished to remain “anonymous” on the GoFundMe page.

Admitted

9. ADMIT that you asked the public for monetary contributions to the GoFundMe page.

Admitted

10. ADMIT that you failed to timely file a “Quarterly Gift Disclosure,” CE Form 9, for a $250 donation to the GoFundMe page received from Richard Andres.

Admitted

11. ADMIT that you had not filed a CE Form 9 to include Richard Andres’ $250 donation by April19, 2021.

Admitted

12. ADMIT that you were required to file a CE Form 9 for Richard Andres’ $250 donation by the end of June 2020.

Admitted

13. ADMIT that you failed to timely disclose the Legal Fees for which payment was either not made contemporaneously or not made at all.

Denied. See ROI ¶30. No gift was accepted.

14. ADMIT that on January 7, 2019, Fred Hemmer submitted a Letter of Intent to the Escambia County Commission to have his company, Hemmer Consulting, LLC, and 68 Ventures, LLC, purchase property from the County.

Admitted

15. ADMIT that on January 17,2019, Fred Hemmer and his attorney appeared before the Escambia County Board of County Commissioners’ Committee of the Whole Workshop meeting and spoke in favor of being considered to purchase property from Escambia County.

Admitted

16. ADMIT that Fred Hemmer is a vendor of Escambia County or is an officer, principal, or agent of a vendor of Escambia County.

Denied. The Commission’s Report of Investigation establishes that not any of the eleven donors who contributed to over $100 to the GoFundMe account were vendors of the Escambia County.

17. ADMIT that you accepted a donation of $250 to the GoFundMe page from Fred Hemmer in November 2019.

Admitted

18. ADMIT that you are prohibited by law to accept a donation exceeding $100 from a vendor of Escambia County, or an officer, principal, or agent of such vendor, or a lobbyist who lobbies the Escambia County Board of County Commissioners, or the principal of such lobbyist.

Admitted in part; Section 112.3148(4), Florida Statutes, prohibits Underhill from knowingly accepting, directly or indirectly, a gift from a vendor doing business with Escambia County,

19. ADMIT that a failure to file a CE Form 9 violation does not require your “intent” to not file the form.

Denied; Section 112.3148(4), Florida Statutes, prohibits Underhill from knowingly accepting, directly or indirectly, a gift from a vendor doing business with Escambia County, or from a lobbyist who lobbies Escambia County or, directly or indirectly, on behalf of the partner, firm, employer, or principal of a lobbyist, if he or she knows or reasonably believes that the gift has a value in excess of $100.

20. ADMIT that there are no mitigating factors to excuse your failure to timely file a CE Form 9.

Denied: As Underhill told the Commission’s investigator, Underhill forgot to file his CE Form 9s due to his preoccupation with the Covid-19 pandemic. After receiving notice of this instant ethics complaint in April 2020, he contacted the Florida Commission on Ethics and was advised to submit the CE Form 9 as soon as possible. Underhill stated the first disclosure form he filed included donations that were due to be reported as gifts by the end of March 2020, but he did not mail the disclosure form until late April 2020 (it was received by the Commission on Ethics on April 30, 2020). Underhill stated the same situation occurred for the CE Form 9 that included a donation that was due to be disclosed by the end of June 2020. That disclosure form was not received by the Commission on Ethics until July 9, 2020. He stated that his tardiness in filing the second disclosure form was also due to the pandemic and was not intentional.

21. ADMIT that Fred Hemmer is a lobbyist, or a principal of a lobbyist, that has lobbied the Escambia County Board of County Commissioners.

Denied

22. ADMIT that you solicited donations to the GoFundMe page from the public at large, which would include vendors of Escambia County, and officers, principals, or agents of vendors of Escambia County.

Admitted that Underhill created the GoFundMe account to raise funds to cover legal fees personally incurred, but which Escambia County had refused to pay. Denied that Underhill personally solicited funds from vendors of Escambia County, and officers, principals, or agents of vendors of Escambia County. See ¶¶ 15 & 16 ROI.

23. ADMIT that you asked County Attorney Alison Rogers if the Shade Meeting Transcripts could be released to the public.

Admitted

24. ADMIT that you received an email from County Attorney Alison Rogers in which you were informed that the Shade Meeting Transcripts should remain confidential.

Admitted

25. ADMIT that County Attorney Alison Rogers informed you that the informal Attorney General Advisory Opinion you presented to her required all of the Escambia County Commissioners to agree to waive confidentiality of the Shade Meeting Transcripts.

Admitted

26. ADMIT that you disregarded County Attorney Alison Rogers’ legal advice to not disclose the Shade Meeting Transcripts.

Denied that Underhill disregarded County Attorney Alison Rogers’ legal advice to not disclose the Shade Meeting Transcripts. Admitted that Underhill communicated with County Attorney Rogers that he did not agree with her opinion concerning the records.

27. ADMIT that you released the Shade Meeting Transcripts to the public even though County Attorney Alison Rogers advised you of their confidential nature in an email.

Admitted

28. ADMIT that you released the Shade Meeting Transcripts to the public even after County Attorney Alison Rogers gave you her legal opinion that the entire Board of County Commissioners would have to agree to waive the confidentiality of the transcripts.

Admitted

29. ADMIT that the Board of County Commissioners, as a whole, never agreed to release the Shade Meeting Transcripts.

Admitted

30. ADMIT that you solicited donations to the GoFundMe page from Fred Hemmer.

Denied that Underhill personally solicited funds from Fred Hemmer. But see ¶16 ROI.

31. ADMIT that you gained access to the Shade Meeting Transcripts by reason of your official position.

Admitted

32. ADMIT that you released the Shade Meeting Transcripts for your own benefit.

Denied. The release of the transcripts benefitted every resident in the County by providing them with the knowledge of what the County was doing relative to the utility litigation issue.

33. ADMIT that you failed to timely disclose the Travel Reimbursement.

Denied. The Travel Reimbursement was not a gift required to be disclosed.

34. ADMIT that you did not have any mechanisms in place to prevent vendors of Escambia County or lobbyists, or principals of lobbyists, that lobby the Escambia County Board of County Commissioners from donating to the GoFundMe page.

Admitted. The Commission’s Report of Investigation shows that Escambia County does not maintain a vendor list nor does it maintain a list of lobbyists, or principals such lobbyists, who lobby the Board of County Commissioners of Escambia County

35. ADMIT that you did not report any information to any local official, agency or federal government entity having the authority to investigate, police, manage, or otherwise remedy the violation you allege occurred in connection with the Shade Meeting Transcripts.

Admitted

36. ADMIT that the lawsuit underlying the Shade Meeting Transcripts was ongoing at the time you released the Shade Meeting Transcripts.

Admitted that County Attorney Rogers advised Underhill among others that the lawsuit was technically ongoing at the time the Shade Meeting Transcripts were released. Underhill was also advised that all legal matters that were in dispute in the litigation had been settled.

37. ADMIT that you solicited donations to the GoFundMe page from the public at large, which would include lobbyists, and principals of lobbyists, who lobbied the Escambia County Board of County Commissioners.

Admitted that Underhill created the GoFundMe account to raise funds to cover legal fees personally incurred, but which Escambia County had refused to pay. Denied that Underhill personally solicited funds from lobbyists, or principals such lobbyists, who lobbied the Board of County Commissioners of Escambia County. See ¶¶ 15 & 16 ROI.

38. ADMIT that you released the Shade Meeting Transcript for the benefit of others.

Admitted that the release of the transcripts benefitted every resident in the County by providing them with the knowledge of what the County was doing relative to the utility litigation issue.

39. ADMIT that it is your obligation to identify whether someone is a vendor of Escambia County, or an officer, principal, or agent of such vendor, or a lobbyist who lobbies the Escambia County Board of County Commissioners, of the principal of such lobbyist, before accepting a gift exceeding $100.

Admitted to a reasonable extent. The Commission’s Report of Investigation shows that Escambia County does not maintain a vendor list nor does it maintain a list of lobbyists, or principals such lobbyists, who lobby the Board of County Commissioners of Escambia County.

40. ADMIT you knew Fred Hemmer prior to the creation of the GoFundMe page.

Admitted

41. ADMIT you did not conduct independent research as to your obligations for accepting and reporting gifts before creating the GoFundMe page.

Denied. When Underhill was advised that the County would not cover his legal fees, he asked County Attorney Rogers if he could create a “GoFundMe” account to receive contributions to help with his legal fees from the lawsuits. He was advised that he could.

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