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Nikki Fried’s protest vote for Florida bank regulator might have been against state law

It was the second unusual decision Fried has made to refrain from voting on the Office of Financial Regulation.
Agriculture commissioner Nikki Fried speaks at pre-legislative news conference on Tuesday Oct. 29, 2019, in Tallahassee, Fla. Florida Gov. Ron DeSantis wants his state to set up a system that will require employers to verify the immigration status of job applicants. But it's unclear if that effort will get any traction among lawmakers, especially since a similar effort failed during the most recent legislative session earlier this year. (AP Photo/Steve Cannon) [STEVE CANNON  |  AP]
Agriculture commissioner Nikki Fried speaks at pre-legislative news conference on Tuesday Oct. 29, 2019, in Tallahassee, Fla. Florida Gov. Ron DeSantis wants his state to set up a system that will require employers to verify the immigration status of job applicants. But it's unclear if that effort will get any traction among lawmakers, especially since a similar effort failed during the most recent legislative session earlier this year. (AP Photo/Steve Cannon) [STEVE CANNON | AP]
Published Dec. 4, 2019
Updated Dec. 4, 2019

Florida Agriculture Commissioner Nikki Fried was so upset by Monday’s 76-second meeting to appoint a new state banking regulator that she abstained from voting.

It doesn’t appear she was legally allowed to skip it, however.

State law appears clear: any member of a board who is present at a meeting “may not abstain from voting,” meaning Fried had to vote either “yes“ or “no.” The only exception is if the vote is a real or perceived conflict of interest, which Fried did not claim.

On Wednesday, Fried’s spokesman said she wasn’t required to vote for the banking commissioner, citing state law that requires only the vote of the governor, chief financial officer and one other Cabinet member.

“Commissioner Fried was not required to vote for the (Office of Financial Regulation) Commissioner,” her spokesman, Franco Ripple, said in a statement.

But that doesn’t appear to mean that she could abstain from voting. Two experts found her reasoning was shaky.

Barbara Petersen, the executive director of the nonprofit First Amendment Foundation, said she appreciated Fried bringing up what appeared to be a Sunshine Law violation by Gov. Ron DeSantis. But Petersen said it wasn’t clear whether it was legal for Fried to abstain.

A Tampa-based media attorney, Mark Caramanica, said the Sunshine Law’s clear intent is to require public officials to vote yes or no.

“That kind of reading undermines the purpose of the Sunshine Law and would mean an official could avoid their voting duties any time their single vote would not change the ultimate outcome,” he said in an email.

Republican Party of Florida Chairman Joe Gruters accused her of playing politics.

"Voters trusted her to be a state leader, not run away from tough decisions,” Gruters said in a statement.

Monday’s abstention was the second time Fried has gone to unusual lengths to avoid voting on a matter involving Florida’s Office of Financial Regulation. The office regulates banks, payday loan operations and check-cashing stores. For the past 18 months the office has been in turmoil.

In July, when the Cabinet fired the office’s last commissioner over allegations of sexual harassment, Fried abruptly got up and walked out of the meeting before the vote was held.

She said the meeting had not been properly noticed, but refused to answer questions from reporters as she walked back to her office. The First Amendment Foundation, which advocates for open government, disagreed then with Fried’s conclusion that the meeting hadn’t been properly noticed.

In neither the July meeting nor Monday’s meeting did Fried, the lone Democrat on the Cabinet, confront DeSantis or her Cabinet colleagues about her objections, choosing instead to issue statements to reporters after the meetings.

That can lead to confusion. She said after Monday’s meeting that she was upset about the lack of discussion in choosing the next banking regulator.

Monday’s meeting to appoint a replacement was held over the phone with DeSantis and the three Cabinet members. DeSantis quickly made a motion to appoint Coral Gables securities lawyer Russell Weigel as the next commissioner.

Chief Financial Officer Jimmy Patronis seconded, and a vote was quickly held. There was no discussion about why Weigel was better than the other two finalists, and the meeting lasted just a minute and 17 seconds.

Fried, however, did not vote, saying instead that she was abstaining. She did not urge any public discussion on the matter or explain her thoughts on the motion. Only afterward did she say that the most-qualified applicants weren’t among the finalists.

Curiously, it was only outside of Monday’s public meeting that she accused DeSantis of operating outside the state’s Sunshine Law, which requires elected officials to hold discussions and make formal decisions on government business in public. That law is intended to let the public hear the stated purposes behind decisions, for and against, made by elected officials.

“Obviously they knew exactly who they were appointing yesterday,” Fried told the Times/Herald Tuesday. “That was apparent by the quickness of the meeting, and it meant in my view that those conversations were happening outside the Sunshine. That’s a real problem to me.”

Weigel, 55, has yet to start the job, which carries a $166,000 salary.

On Wednesday, the Florida Democratic Party expressed its own objections, none of which had been expressed by Fried. In an email critical of Weigel, party officials noted that Weigel‘s resume stated he was an “active supporter” of the conservative Christian Family Coalition.

The Miami-based organization has called being gay or transsexual a “disorder,” and its executive director once called former U.S. Rep. Ileana Ros-Lehtinen a Miami Republican, a ”homosexual extremist.”

The party’s executive director, Juan Peñalosa, noted that Florida does not have a state law prohibiting employees from being fired for being gay, bisexual or transgender.

“Weigel could use his position of power to discriminate against our community without any consequences,” the party’s executive director, Juan Peñalosa, said in a statement. “DeSantis and Patronis’ appointment was reckless and shows they have no desire to be leaders for all Floridians.”

Weigel, 55, rejected the idea that he would discriminate against anyone.

“Discrimination is not in my vocabulary, nor should it be for any Christian,” he said. “There’s no discriminatory bone in my body. If my faith is objectionable to somebody else, I just have to pray for them.”

He also wondered why the issue was coming up now, after he had been appointed to the job following a public interview with the governor and Cabinet members earlier this fall that Fried herself attended. Fried didn’t raise any objections during that meeting — or afterward.

“Because of full disclosure and being transparent, I listed my association with a group that could be considered a political action committee,” he said. “Ms. Fried was certainly able to review that. It’s strange now that this comes up at this point.”

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