By Mary Hladky
Suspended Mayor Susan Haynie has pleaded not guilty to state corruption charges and her attorney has asked that the charges be tossed out.
Bruce Zimet, Haynie’s new criminal defense attorney, contended in a motion filed May 18 that the criminal charges against her are flawed and must be dismissed, although the pleading notes that prosecutors can amend the charging document.
No hearing on the motion had been scheduled as of late May.
Her unexpected arrest set into motion the elevation of Deputy Mayor Scott Singer to the top job and an Aug. 28 special election to elect a mayor who will serve until the end of Haynie’s term of office in March 2020 — unless Haynie prevails in her legal case — and to fill Singer’s seat on the Boca Raton City Council.
Haynie, a fixture in city politics for the past 18 years, was arrested on four felony and three misdemeanor charges, including official misconduct, perjury in an official proceeding, misuse of public office, corrupt misuse of public office and failure to disclose voting conflict. She faces more than 20 years in prison.
Gov. Rick Scott suspended her from office and she withdrew from the District 4 Palm Beach County Commission race.
Prosecutors contend Haynie used her position on the City Council to vote on four matters that financially benefited James Batmasian, the city’s largest downtown commercial landowner, and failed to disclose income she received from him.
The investigation by the Palm Beach County State Attorney’s Office public corruption unit alleges Haynie failed to report $335,000 in income on disclosure forms required by the state, including $84,000 from Batmasian or his company, Investments Limited, from 2014 through 2017.
She told investigators she had no involvement in running two companies she and her husband founded, Community Reliance and Computer Golf Software of Nevada, and derived no income from them.
But subpoenaed bank records revealed she wrote checks to herself totaling $5,300 from the Community Reliance account and received $72,000 from Computer Golf Software, according to the State Attorney’s Office.
The master association of Tivoli Park paid Community Reliance, a property management company, nearly $57,000 over the four years. Tivoli Park is a 1,600-unit apartment complex in Deerfield Beach where 80 percent of the units were owned by Batmasian and his wife, Marta, and most of the board members worked for Investments Limited.
Problems with state’s case?
Zimet, a highly regarded Fort Lauderdale criminal defense lawyer and former federal prosecutor, argues there are problems with the charges filed against Haynie.
The most consequential involves a state anti-corruption law amended by the Florida Legislature in 2016 to make it easier for prosecutors to prove corruption. The law initially said the state had to establish that a public official acted with “corrupt intent.” The amended law changed that to “knowingly and intentionally,” a lesser standard of proof.
But in two of the felony official misconduct charges against Haynie, prosecutors said she acted “knowingly and intentionally” even though her alleged crimes occurred before that language went into effect. Therefore, Haynie was charged with a “nonexistent crime,” the motion to dismiss states.
The third official misconduct count did not lay out how she violated the law, while the perjury count does not say what false statement Haynie is accused of making. The three misdemeanor charges stem from alleged violations of the Palm Beach County Code of Ethics but do not say Haynie’s violation was “willful,” and so do not allege a criminal offense, the motion states.
The Palm Beach County Commission on Ethics, which also investigated Haynie for voting on matters that financially benefited Batmasian, reached a settlement with her on April 16 in which it reprimanded and fined her for failing to disclose a conflict of interest but dismissed a second allegation that Haynie misused her public office.
Commissioners did not determine whether Haynie’s actions were intentional on the conflict of interest charge because they said they did not have enough information at the time of the settlement to decide. On the misuse of public office count, commissioners determined Haynie’s actions were unintentional.
Two attorneys not involved in Haynie’s case who reviewed the motion praised Zimet’s legal work.
“It raises a serious issue that could prove to be detrimental to the state’s case,” Miami criminal defense lawyer David Weinstein, a partner at Hinshaw & Culbertson, said in an email, referring to Zimet’s contention on the two felony official misconduct charges.
Haynie could run again
In a seeming paradox, Haynie’s political career could be resurrected even if she is convicted.
State law requires the governor to reinstate her if she is acquitted at trial or if the charges are dismissed. She would then complete her term of office.
If Haynie accepts a plea deal with prosecutors in which she pleads guilty or no contest to at least one of the charges and the state drops the rest, and her sentence is suspended or adjudication is withheld, one state law says that she nevertheless has been convicted and the governor must remove her from office.
But that would not prevent her from running for another office, according to Weinstein and Fort Lauderdale criminal defense lawyer Bruce Rogow.
That’s because another state law says Haynie is not a convicted felon who loses the right to hold public office if her sentence is suspended or adjudication is withheld, and so she would be able to mount a campaign.
“She could run for office,” said Rogow, who has appeared before the U.S. Supreme Court 11 times. “The best revenge for a disgraced politician is to run for office again and be re-elected.”
Other politicians with broad public support before their arrests have done so, Rogow said.
“People make comebacks and their constituents appreciate their value and they can survive a conviction,” he said.
A plea deal with a suspended sentence or adjudication withheld “wouldn’t preclude her from running for another office,” Weinstein said. “She would not be a convicted felon.”
One of his past clients is Tony Masilotti, a former Palm Beach County commissioner convicted of honest services fraud. Weinstein represented him on post-conviction matters.
It’s impossible to know at this point if this scenario could happen. Haynie is seeking a trial on the charges against her, and Zimet declined to comment on a possible plea.
“All I can say is we are entering a [not guilty] plea and are demanding a trial,” Zimet said in mid-May.
But Robert Jarvis, a Nova Southeastern University law professor, thinks a plea bargain is likely because defendants often don’t want to take the risk of going to trial, being convicted and ending up with a stiff sentence.
“That’s usually how these cases work out,” he said. “A plea bargain gets it behind them quickly. … My prediction is she takes a plea and goes quietly into the good night.”