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Florida Republicans want the Broward sheriff suspended for neglect of duty. That might be difficult to prove.

"There’s no definition in the state constitution about what constitutes ‘neglect of duty.’”
House speaker Richard Corcoran, R-Land O'Lakes, pounds the gavel to start the first day of legislative session, Tuesday, Jan. 9, 2018, in Tallahassee, Fla. (AP Photo/Steve Cannon)
House speaker Richard Corcoran, R-Land O'Lakes, pounds the gavel to start the first day of legislative session, Tuesday, Jan. 9, 2018, in Tallahassee, Fla. (AP Photo/Steve Cannon)
Published Feb. 27, 2018

Florida House Republicans want Broward County sheriff Scott Israel gone, and they're not being subtle about it.

Speaker Richard Corcoran has made multiple television appearances in recent days calling for Israel's ouster in the wake of news reports about his office's potentially problematic response to the Feb. 14 Parkland school shooting.

On Sunday Corcoran sent a letter to Rick Scott urging the governor to suspend Israel, citing Israel's malfeasance, misfeasance, neglect of duty [or] incompetence. Scott said Monday he wants more information about Israel's conduct before he makes such a move.

If Scott decides to suspend Israel, though, one key question remains unanswered: did Israel's actions meet the legal Florida definition of malfeasance, misfeasance, neglect of duty or incompetence?

The Miami Herald's Glenn Garvin digs into that question here.

From Garvin and the Herald:

We may be headed for a legal battle over just what the phrase "neglect of duty" means.

And experts say it's not so clear.

"Everybody kind of agrees public officials accused of illegal acts should be removed, at least until their guilt or innocence is established," said Richard Hornsby, an Orlando attorney who writes a legal blog and has studied the constitutional provision on suspensions.

"But when it comes to neglect of duty — when a public official doesn't do what's expected by law in terms of his job — that gets very nebulous."

Israel has been under almost constant attack for the way his office performed during and before the Feb. 14 Stoneman Douglas shooting. Though Broward deputies had taken at least 23 worried calls about the accused shooter and his family — and possibly as many as 45, according to the latest information — in the years before the attack, they failed to take action. And during the shooting, at least one Broward deputy — and perhaps as many as four — remained outside the building, staying away from the shooting.

The most combative attacks on Israel have come from Republican legislators in the House. Seventy-four of them demanded that Scott suspend Israel for "incompetence and neglect of duty." The governor has so far deflected them by asking the Florida Department of Law Enforcement to investigate the handling of the case.

Read more: Parkland shooting fallout is political and personal for Sheriff Scott Israel

If Scott decides FDLE has turned up evidence of neglect of duty, he would presumably remove the sheriff from office. If that happens, the state Senate would have three months to open hearings on the suspension, and would have to either uphold or reject the suspension within 60 days.

"The problem is, there's no definition in the state constitution about what constitutes 'neglect of duty,' " said Phyllis Diane Kotey, a Florida International University law school expert on Florida's constitution. "And there's really no obvious precedent that I know of to help us."

The most similar case anybody can recall isn't really a case because it ultimately didn't happen. Last year, Scott clashed with newly elected Orlando State Attorney Aramis Ayala after she announced that she wouldn't seek the death penalty for anyone, ever.

Scott had all of Ayala's existing death penalty cases transferred to other districts, a controversial action that was later approved by the Florida Supreme Court, and he seemed on the verge of going along with a call by other Republicans to suspend her.

Read more: Aramis Ayala responds to Rick Scott

But at the last minute Ayala offered a compromise, creating a panel of assistant prosecutors who would decide whether to pursue capital punishment in her office's cases, and Scott backed away.

"Ultimately, that was more of a political decision," said Hornsby. "Did Scott really want to be the guy who suspended the first duly elected African-American state attorney in Florida? Did she really want to be suspended? … Basically, it gave them both a way to save face."

Even if there had been no compromise, the dispute between Scott and Ayala wouldn't have offered many parallels to the case of Israel. There was no question that Ayala alone was responsible for the death-penalty policy in her office.

But can Israel be accused of neglect of duty if FDLE finds a few of his deputies botched their jobs? Should that decision be made by the governor now when voters will have a chance to render their own verdict in three years?

"The intent of the constitutional provision on suspensions is that the governor, as the top executive officer in the state, is in charge of all the other executive officers doing their jobs," said Kotey. "Everybody accepts that part of an executive's job is being responsible for training your employees. … I don't know that you're necessarily responsible for specific action of one specific [deputy] on one specific occasion. But if the officer has not been trained well, and his specific action is the manifestation of his lack of training, well, maybe."

Hornsby doubts that the failure of a deputy to enter the scene of the shooting — or even deputies, if more than one is proven to have done it — can be labeled neglect in a confusing, fast-moving situation. But Israel may be more vulnerable, he said, if it's shown that his office consistently, over a period of years, failed to react to warnings that Cruz was showing signs of dangerous behavior.

Kotey agreed. But, she added, there's still a question about whether the decision shouldn't be left to voters.

"Should the governor react when the voters have the ability to remove that individual?" she wondered. "I'm not sure. But then the question of waiting for the voters to remove him becomes difficult if there's the possibility of others coming to harm during the wait."

Read more: Uncharted territory: Could Rick Scott suspend the Broward sheriff?


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