Is FDLE Agent Wayne Ivey's run for Brevard County Sheriff a violation of both the Federal Hatch Act and Florida State Statutes?
Updated October 1, 2011
"In a state where corruption abounds, laws must be very numerous."- Tacitus
UPDATE October 1, 2011 FDLE Agent Wayne Ivey resigns prior to the Office of Special Counsel's determination on whether his candidacy was in violation of the Federal Hatch Act.
We invite you to review Agent Ivey's retirement letter and the Office of Special Counsel's notification that they are closing the Hatch Act investigation on Ivey due to his retirement. We ask you to notice - Agent Ivey wrote his letter on September 19 of his desire to retire on Spetember 22th - not even two weeks notice - what was the hurry Mr. Ivey - were the Hatch Act investigators at your door steps?
Wayne Ivey, the Florida Department of Law Enforcement's - Resident Agent-in-Charge of Volusia and Brevard counties, has filed his papers with the Brevard County Election Supervisor to run as a republican candidate for the 2012 election of Brevard County Sheriff.
First, is Agent Ivey's candidacy for Brevard County Sheriff a violation of the Federal Hatch Act?
What is the Hatch Act?
Basically, the Hatch Act is a federal law that prohibits certain (executive branch employees - in which their employer receives federal funding) government employees from running for elected office (partisan races) without first resigning their government position.
Does the Hatch Act cover State and Local (non-federal) employees? - the answer appears to be yes - we invite you to read the below federal publication link regarding the Hatch Act and State and Local Employees.
Since, the Hatch Act only covers employees of the Executive branch of the government - is Agent Ivey's employer, the FDLE, part of the Executive Branch of Florida State government?
Since the Hatch Act only regulates government employees that receive or supervise the expenditure of federal funds - it would be proper to first ascertain whether the Florida Department of Law Enforcement has accepted federal funding, and second, whether Agent Ivey has received or supervised the disbursement of any federal funding.
A simple GOOGLE search will tend to confirm that the Florida Department of Law Enforcement has not only received federal funding, but in the below example, is the responsible party for disbursement of federal funding to municipalities within the State of Florida.
On Agent Ivey's political website, he indicates that some of his current responsibilities as FDLE's Resident Agent-in-charge of Volusia and Brevard county are "budgeting, resource allocation, and partnership development".(VolusiaExposed has filed a public records request for Agent Ivey's detailed job description and responsibilities)
Realizing that the Hatch Act is a very complicated mandate - VolusiaExposed.Com sent the below email to candidate Ivey, inquiring whether his candidacy for Brevard Sheriff was a violation. As of yet, we have not received a response.
VolusiaExposed finds it very interesting that Agent Ivey announced his candidacy for the Brevard County Sheriff on August 2, 2011, but apparently did not start seeking written permission to run from FDLE officials until at least August 4, 2011.
Even more interesting is that on August 17, 2011 (two days after VolusiaExposed.Com sent Agent Ivey the above listed email), Agent Ivey filed a memo to FDLE Commissioner Bailey titled "Candidacy request".
On August 18, 2011 (sixteen days after Agent Ivey announced his candidacy) FDLE Commissioner Bailey requested a review of Agent Ivey's candidacy (as would be required by Florida Law), from Florida Department of Management Services (DMS), Secretary - Jack Miles.
Finally on August 22, 2011 - DMS Chief of Staff, Brett Rayman gave his written permission for Agent Ivey's candidacy, with the caveat that his candidacy was not in violation of the Federal Hatch Act. (per Florida law - it is up to the employee's agency (in this case - FDLE) to determine if the employee is covered under the Hatch Act).
THEREFORE, does it appear that Agent Ivey actually announced his candidacy at least twenty days prior to securing written permission to do so from both the FDLE and the Florida Department of Management Services (as is required by Florida Law)?
Due to the above concerns, VolusiaExposed.Com arranged for the filing of a Hatch Act violation complaint with the U.S. Office of Special Counsel.
The Office of Special Counsel sent us the below email, stating that they have opened a file and would be contacting us upon starting their investigation into our concerns.
Now let's move on to whether Agent Ivey's candidacy for Brevard County Sheriff is a violation of Florida Law?
We invite you to read Florida Statutes 110.233(4) regarding State employee running for public offices:
FLORIDA STATUTE 110.233(4) 110.233 Political activities and unlawful acts prohibited:
(4) As an individual, each employee retains all rights and obligations
of citizenship provided in the Constitution and laws of the state and
the Constitution and laws of the United States. However, no employee in
the career service shall:
(a) Hold, or be a candidate for, public office while in the employment
of the state or take any active part in a political campaign while on
duty or within any period of time during which the employee is expected
to perform services for which he or she receives compensation from the
state. However, when authorized by his or her agency head and approved
by the department as involving no interest which conflicts or activity
which interferes with his or her state employment, an employee in the
career service may be a candidate for or hold local public office. The
department shall prepare and make available to all affected personnel
who make such request a definite set of rules and procedures consistent
with the provisions herein.
The above Florida Statute does approve, upon authorization of both the employee's agency head and the Florida Department of Management Services, the candidacy of a Florida career service employee.
Florida Administrative Code 60L-36.002 further defines and clarifies that approval to be a political candidate shall only be granted, if there are no conflicts of interest between the employee's state employment and the political position sought. FAC 60L also clarifies that no approval shall be given to any employee that would be in violation of the Federal Hatch Act.
FLORIDA ADMNISTRATIVE CODE 60L-36.022 60L-36.002 Political Activities.
(1) Section 110.233(4)(a) of the Florida Statutes, prohibits a career service employee from holding, or being a candidate for,
public office while in the employment of the state or taking any active part in a political campaign while on duty or within the period
of time during which the employee is expected to perform services for which he or she receives compensation from the state.
However, a career service employee may be a candidate for or hold public office when authorized by the agency head and approved
by the Department as involving no interest which conflicts or activity which interferes with his or her state employment. The
following procedures shall apply to requests for that authorization and approval.
(a) An employee seeking authorization shall submit to the employing agency head a written request before engaging in any
campaign related activity, including fundraising, and at least forty-five days before the deadline for qualifying for the office. The
request shall identify the public office sought and summarize the duties, the hours of work involved in holding the office, what
effects, if any, office or campaign duties will have on the employee's regular duties with the State, and the amount of remuneration,
if any, which the employee would receive if elected.
(b) Within ten days after receiving the request, the agency head shall decide in writing whether the request is authorized. The
decision shall specify reasons and shall include a determination whether the candidacy or duties of the local public office involve an
interest that conflicts or an activity that interferes with the employee's state employment. If the agency head approves the request,
the agency shall forward copies of the request and the decision to the Department.
(c) Within ten days after receiving the request and agency decision, the Department shall decide in writing whether the request
is approved, and so advise the agency and the employee.
(d) Copies of the employee's request, the agency head's decision, and the Department's decision shall be retained in the
employee's personnel file.
(2) Candidacy for or holding a local public office shall be presumed to involve an interest that conflicts with an employee's state
employment when the campaign or the office, if elected, is likely to give rise to a situation in which regard for a private or local
interest tends to lead to a disregard of the employee's duty as a state employee.
(3) Candidacy for or holding local public office shall be presumed to involve activities that interfere with an employee's state
employment in the following instances:
(a) Campaign or, if elected, office activities are performed during the employee's assigned working hours with the state.
(b) Campaign or, if elected, office activities will involve the use of state space, personnel, time, equipment, or supplies.
(c) The employee solicits or accepts campaign contributions from persons or entities that are regulated by, or otherwise do
business with, the employee's department or agency.
(4) Employees whose positions are subject to the Federal Hatch Act may not become candidates in any partisan election. Each
agency head shall determine which of that agency's employees are subject to the Hatch Act.
(5) An employee who has been granted approval to become a candidate for local public office pursuant to this Rule 60L-36.002,
F.A.C., may, at the discretion of the employee's agency head in accordance with Chapter 60L-34, F.A.C., Attendance and Leave, be
granted a leave of absence without pay to campaign for the office, or may be allowed to use accrued annual or compensatory leave
credits.
(6) This Rule 60L-36.002, F.A.C., shall apply when an employee already holds a local public office at the time of employment
in the career service, or when the employee seeks re-election to the same office while an employee in the career service. This Rule
60L-36.002, F.A.C., applies to appointments as well as elections.
Specific Authority 110.1055, 110.201(1), 110.233(4)(a) FS. Law Implemented 110.233(4)(a) FS. History - New 1-22-02, Amended 5-16-04.
VolusiaExposed.Com believes that Agent Ivey's employment as FDLE's Resident Agent In-Charge of Brevard and Volusia counties opens all sorts of conflicts of interests with his candidacy for Brevard County sheriff. A quick example of such a conflict of interest is the fact that the FDLE is responsible to conduct the investigations into all officer involved shootings. Since Agent Ivey is the Resident Agent In-Charge within Brevard county he would be attached, in a supervisory status, to any such officer invovled shooting investigations. Currently, there are three other candidates running against Agent Ivey for the Brevard County sheriff position, two of these three other candidates are law enforcement members of the Brevard County sheriff department. What if one of these other candidates had to be investigated regarding an officer involved shooting? Agent Ivey would find himself in charge of an investigation against one of his political rivals. Even if Agent Ivey was able to separate himself from the investigation, rumors and allegations could easily arise that his (Ivey) staff's investigation was influence by the politics attached to Ivey's candidacy for sheriff.
VolusiaExposed.Com is left wondering why in 2008 another FDLE agent (Mike Taylor) had to resign his position with FDLE in order to run for Clay County sheriff, due to Florida State laws, but Agent Ivey is apparently exempt from these same laws.
Further, it is of interest, that recently Pinellas County Sheriff's Department Deputy Chief was advised by the U.S. Office of Special Counsel (OSC) that his candidacy for Pinellas County Sheriff is in violation of the Federal Hatch Act
We strongly believe that FDLE Resident Agent In-Charge, Wayne Ivey is in similar violation of the Hatch Act in his candidacy for Brevard County Sheriff. We invite you to review the OSC advisory letter to PCSO Deputy Chief Bob Gualtieri - and then ask yourself, if given the fact that FDLE Agent Ivey is in charge of FDLE operations in Volusia and Brevard counties, is he too in similar violation of the Hatch Act?
VolusiaExposed.Com will be reaching out to Florida State officials in an attempt to gain some clarity on the Taylor / Ivey situations.
In the future - we shall explore whether Agent Ivey's desire to become the Brevard County sheriff might be influencing his investigative perspective regarding in-custody deaths within the Volusia County jail.