An appeals court on Wednesday rejected former state Rep. David Rivera's challenge to an ethics finding against him but didn't close the door to the possibility of hearing the case again in the future.
The ruling means the lengthy battle over a proposed ethics fine of nearly $58,000 will likely continue, even as Rivera attempts a political comeback in this year's elections. The former legislator and congressman is one of five Republicans and one Democrat running for an open seat in House District 118 in Miami-Dade County.
In a unanimous decision, a three-judge panel of the 1st District Court of Appeal said it was too early for Rivera to challenge the constitutionality of a law allowing him to be fined by House Speaker Steve Crisafulli, R-Merritt Island. While the Florida Commission on Ethics recommended a punishment, Crisafulli is charged by the law with the final decision.
Rivera's attorney had argued that it's unconstitutional for the speaker to have that kind of authority over a former member. Rivera left the Legislature in 2010, then served a single term in Congress.
But the judges said challenging the law now was jumping the gun, because the ethics process "will not be complete until the speaker acts on the commission's recommendation."
"And, here, there is no indication in the record that the speaker intends to take disciplinary action against Rivera since he is no longer a member of the House," the nine-page opinion said. "As a result, any ruling that we might provide at this stage of the proceeding on the constitutional challenge raised by Rivera would amount to an improper advisory opinion."
The opinion also said the judges "find no merit" in Rivera's claim that his due-process rights were violated when the ethics commission decided a critical part of the case without his lawyer present. The lawyer was late for the hearing. The commission eventually allowed the lawyer to speak, but after it had voted on the case.
After Wednesday's ruling, Leonard Collins, Rivera's attorney, said he believes the law will be struck down as unconstitutional in the end.
"The court only determined it would not rule on the constitutionality question at this time, but we are pleased it also did not reject our argument," he said in an email. "Accordingly, we consider this a significant victory that we will continue to pursue on appeal."
Crisafulli's office did not indicate which way the speaker was leaning on the Rivera case.
"The speaker is reviewing the court ruling," Chief of Staff Kathy Mears said in an email. "The ethics commission has not yet forwarded the case to the Florida House."
According to an administrative law judge who heard the initial case against Rivera, the former lawmaker received nearly $41,322 as the result of a scheme in which Rivera was improperly reimbursed by the state for travel that had been covered by campaign accounts. Rivera disputes that characterization of his actions.
The judge and the ethics commission recommended an additional $16,500 in fines in the case, which also included allegations that Rivera didn't adequately disclose financial information.
