***Update – 5:40pm: A staffer from Representative Fitzenhagen’s office responded to the story by phone. The aide reported that Adam Tannenbaum, General Counsel for the Florida House of Representatives, verbally informed Rep. Fitzenhagen that she could vote on HB 6011 without having to file a conflict of interest notifice with the State Commission on Ethics. The Capitolist contacted Tannenbaum’s offce for a complete explanation, but Tannenbaum’s staff directed all inquiries to Fred Piccolo, communications director for the Speaker of the House. We’ll update the story as soon as we have additional information.
On February 16th, 2017, Rep. Heather Fitzenhagen, a Republican, voted on legislation that dealt with so-called Engle Progeny tobacco litigation and settlement agreements that would kill the “bond cap” for tobacco companies that want to appeal judgments against them by former smokers.
In her day job, Fitzenhagen is an attorney for Morgan & Morgan, which had 121 such cases pending at the time of the vote.
It’s exactly what business leaders warned about at the beginning of the legislative session, when trial lawyers like Fitzenhagen wound up in control of key committees, including the House Civil Justice and Claims Subcommittee, the Judiciary Committee and the Justice Appropriations Subcommittee. The outrage at the time was palpable:
“It’s appalling that our legislative leaders would put trial lawyers in control of committees that will have a direct control over laws that dictate how much money trial lawyers put in their pocket,” said one businessperson with interests in the outcome of several contentious bills this year. “I can’t think of a more obvious conflict of interest.”
But under Florida ethics rules, the appointments themselves are not at issue, in that lawmakers have a process to adhere to, if or when their vote might constitute a conflict of interest. In a situation like Fitzenhagen’s, with an obvious conflict, the Florida Commission on Ethics says lawmakers have a clear duty:
VOTING CONFLICTS OF INTEREST
State public officers are prohibited from voting in an official capacity on any measure which they know would inure to their own special private gain or loss. A state public officer who abstains, or who votes on a measure which the officer knows would inure to the special private gain or loss of any principal by whom he or she is retained, of the parent organization or subsidiary or sibling of a corporate principal by which he or she is retained, of a relative, or of a business associate, must make every reasonable effort to file a memorandum of voting conflict with the recording secretary in advance of the vote. If that is not possible, it must be filed within 15 days after the vote occurs. The memorandum must disclose the nature of the officer’s interest in the matter.
Rep. Fitzenhagen either doesn’t know of this process or just decided to disregard it during the vote on HB 6011 that took place on February 16th. According to public records posted by House staff, Rep. Fitzenhagen failed to file any notice of a conflict.
“An attorney who’s also a lawmaker is responsible to the law firm’s clients, all of them. Whether the client is directly managed by the lawmaker doesn’t matter. They have a responsibility to every client.” says former lawmaker and Judge Thomas Gallen.
At the very beginning of Session, it seemed the bills in both the House and Senate were going to fall to the wayside, due to a lack of time. And eventually, it did indeed die and was indefinitely withdrawn.
So the questions that remain are why did Rep. Fitzenhagen vote? Did she not know her employer has 121 cases could have a direct impact if this bill was passed? Or did she know and completely disregard the rule? Or was it a matter of knowing the rumors it wouldn’t get heard again already a fact, so why not vote for practice?
The Capitolist did reach out to Rep. Fitzenhagen with some questions so she could give her side of what happened. We too were disregarded.
Brian Burgess contributed to this report.