Florida Supreme Court Seeks Response From State In Blind Trust Lawsuit

May 16, 2014

Current members of Florida's Supreme Court.
Credit floridasupremecourt.org / Florida Supreme Court

Open government advocates are asking “What Would Askew Do?” when it comes to public officials and financial reporting. The late Governor Reubin Askew promoted government transparency, and a lawsuit filed before the Florida Supreme Court says when public officials use blind trusts to hide their assets, it’s unconstitutional.

The Florida Supreme Court is asking Secretary of State Ken Detzner to respond to a lawsuit challenging the use of blind trusts by candidates and publiclly elected officials, including Governor Rick Scott. Detzner is in charge of administering the state’s campaign finance laws and the Court wants him to weigh in. In a letter sent to Detzner, Scott’s campaign says the governor will comply with whatever the Court decides, because he is the only current elected official whose assets are in a blind trust.

“Our view is that Governor Rick Scott behaved himself consistent with a way of a person trying to get good legal advice," says former Florida State University President and former head of the American Bar Association Sandy D’Alemberte who filed the lawsuit. D’Alemberte says the Governor is not a target, though he would be affected by the case.  Scott rolled his assets into a blind trust in 2011 after getting advice from lawyers and clearance from the state ethics commission.  

"He went to good lawyers. They gave him, in our judgment, bad advice. We don’t think a blind trust can ever be full, public disclosure,” he says.

D’Alemberte filed the lawsuit on the behalf of Jim Apthorp, former Chief of Staff to the late Governor Reubin Askew, who championed the state’s Sunshine Amendment and pushed for more open government. Apthorp helped write the Amendment, and says the idea behind a blind trust is at odds with the financial reporting laws his former boss championed.

The purpose of a blind trust is to shield an office holder from any indication they might be guiding or directing the investments in that trust. So it becomes invisible to the person who set up the trust. But unfortunately, the way the law works today, it also becomes invisible to the public," Apthorp says.

Blind trusts help public officials avoid conflict-of-interest allegations by allowing them to distance themselves from their investments.  If a policy they champion affects their income, the candidate may not know about it since the trust is also administered by another party. Other state officials have used blind trusts over the years before Scott, it was Former Chief Financial Officer Alex Sink. Her assets were held in a blind trust during her time in office.

In 2013 the state legislature gave bipartisan support to a bill codifying the Ethics Commission’s decision on blind trusts. The lawsuit asks the Florida Supreme Court for an injunction to the 2013 law, before the qualifying period for candidates ends July 16th. It is aimed at forcing candidates and publically elected officials to fully disclose their assets. According to the petition the law creates confusion, and  “many candidates may believe erroneously that filing a blind trust will satisfy the constitutional mandate.”

But if blind trusts have been a problem for so long, many are wondering why it has taken so long for something to be done about It? D’Alemberte says no one was really paying attention to the issue until after the 2013 law was passed, and "then we began to think about the upcoming election in 2014 which would be the first election since the 2013 statute passed. So it took us a while to pull all this together.”

Florida’s Sunshine Amendment and the state’s open-record laws are based on one main principle: the public has a right to know. That right, say the lawsuits supporters, Extends to candidates and publiclly elected officials and much of their personal interests, the financial side of which has to be disclosed every year.

Joining the lawsuit are the several media outlets including The Florida Press Association, the Associated Press, The Miami Herald and the Florida Times-Union. The First Amendment Foundation has signed on as well, and so has the Florida League of Women Voters. The groups are asking, What Would Askew Do?

“We salute the vision of Governor Askew, who ensured that Florida would lead the way to a future of full public disclosure," says League spokeswoman Erin Jensen, holding up the late-governor's efforts to fight corruption in the 1970’s. "And we are dedicated to ensuring transparency in government and measurable steps toward progress are protected and enforced.” 

The Florida Supreme Court wants the Secretary of State’s office to respond to the merits of the lawsuit, whether the Court has jurisdiction to hear it, or if it should be sent to a circuit court. The response is due Wednesday.