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Ethics commission dismisses complaint against Edgar

In a closed door hearing today, the Florida Commission on Ethics dismissed a complaint against Public Service Commissioner Lisa Edgar accusing her of using her staff aide to receive a message from a Florida Power & Light official during a November hearing to set fuel charges for FPL customers.

Stephen Stewart, the Tallahassee businessman who filed the complaint, said the commission quickly dismissed the complaint without letting him say anything and while Edgar's attorney did all the talking.

"I am livid as a citizen,'' Stewart said. The ethics commission's advocate recommended no probable cause because the message related to a procedural issue and therefore was exempt from the ban on communication between utility officials and commissioners, he said. "Who told them that was procedural?,'' he asked. "Procedural is a part of any case and can effect the merits of the case.''

Stewart, who has been a consultant on utility regulation cases, accused Edgar of violating the ``ex parte'' law, based on an e-mail trail between Edgar and her aide, Roberta Bass. The email exchange occurred during a Nov. 6 hearing in which the commission was trying to decide whether to rule on a report about a disgruntled FPL worker who drilled a hole in FPL's nuclear reactor.

The issue before the commisison was whether to rule the report confidential, allowing it to be referred to the attorney general's office to pursue criminal charges against the former employee, or continue hearings. Edgar was the only commissioner who wanted to continue the hearings.

"It was over in less than eight minutes,'' Stewart said. "There was no discussion of the merits. There was on question.'' One member of the ethics commission asked if the message ever got to Edgar and the ethic's commission attorney said it had.

Edgar's attorney, Mark Herron, acknowledged that a message was transmitted from FPL attorney Ken Hoffman through Edgar's aide during the hearing. "But it didn’t relate to the merits of the proceeding,'' which is required under the state's ex parte law, he said. He said that the advocate, who works for the attorney general's office, concluded that the decision whether to rule the report confidential wasn't related to the pending matter over how much FPL could charge customers for fuel.

Herron said Hoffman merely wanted to make a suggestion to end the discussion and thought the best way was through the aide. "It was something that was kind of developing in real time,'' Herron said. He acknowledges that Hoffman could have told his attorney handling the case and the attorney could have made the suggestion but he didn't. "It was like popping off in the back of the room.''

Herron who has represented dozens of public officials and complainants before the ethics commission, said that people who file complaints used to be able to talk at probable cause hearings but too often they didn't stick to the issues. "All the vitriol and extraneous facts that have been totally investigated or thrown out by the commission get tossed in,'' he said.

Now person who has filed the complaint is invited to come to observe. "They lose control of the complaint once it's filed,'' he said.