The West Palm Beach City Commission should not have reimbursed Commissioner Kimberly Mitchell $7,325 for defending herself in an ethics investigation involving a home cable television problem, the Palm Beach County Office of Inspector General has concluded.
“No facts were provided that could reasonably be viewed as supporting the City Commission’s decision that Ms. Mitchell was acting in her official capacity,” Donald Balberchack, the office’s director of investigations, said in a memo dated Friday.
He added that Mitchell’s own testimony to the ethics commission, when combined with legal standards, “indicates the reimbursement of Ms. Mitchell’s attorney fees was not justified.”
Friday’s memo recommended the commission take another look at whether its vote was proper.
The city suggested Friday it would do no such thing.
“While we have read the IG’s interpretation, we are respectfully moving on to continue the business of serving the residents of our city,” city spokesman Elliot Cohen said.
Inspector General Sheryl Steckler Friday defended her office’s jurisdiction in the case.
“Our ordinance calls for more than waste, fraud and abuse. You can look at this as a waste of taxpayer dollars,” Steckler said. “The ordinance is very clear that we have jurisdiction over West Palm Beach.”
She also said, “We just make a recommendation of corrective action. It’s up to them whether they’re going to bring it to the table. That’s where our jurisdiction stops.”
Mitchell said Friday, “I was found to have done nothing wrong. This latest question, that’s in the city’s hands.”
In November 2011, a receptionist at the city’s hot line got Comcast to move up a visit to Mitchell’s home to fix her service in time for a football-watching party for the University of Florida-Florida State University game after Mitchell called City Administrator Ed Mitchell about her problem.
The following year, the staff of the Palm Beach County Ethics Commission found probable cause to charge her with an ethics violation. But the commission exonerated Mitchell in 2012 after she argued that she had called Mitchell out of concern that the cable problem could be affecting neighbors. It was later revealed that Comcast had turned off the cable in the wrong home.
The city voted 4-0 on Jan. 22 to reimburse Mitchell for the cost of her legal defense after City Attorney Claudia McKenna advised them that under state law “the reimbursement is eligible for approval if the elected official was acting in a public capacity for a public purpose.”
But in a memo dated Friday, Balberchack said Mitchell’s defense to the county’s Commission on Ethics “was that she was not” — his emphasis — “acting in her official capacity.”
Balberchack’s memo said the Inspector General’s office also interviewed the four commissioners who voted. Sylvia Moffett opined that the panel shouldn’t have voted that way because of the conflict over “official capacity.” Ike Robinson said he trusted McKenna’s interpretations. Shanon Materio believed Mitchell had in fact been accused in her formal capacity. Keith James could not recall the specifics of his or her vote.
In December 2011, Mitchell told ethics panel investigators she had told Mitchell, “I personally live in the city. I am personally a customer of Comcast. I wasn’t calling him as a city commissioner.”
Friday’s memo said that on June 17 of this year, the Inspector General’s office asked the commission to provide “any pertinent factors” showing how Mitchell was acting in her official capacity, but that McKenna responded that the city determined the standard was met and “any additional pertinent factors taken into account by an individual commissioner would be the prerogative of that commissioner.”
The memo said the Inspector General’s office “made several attempts” to get McKenna to provide her basis for her opinion that the city should reimburse Mitchell.
“We repeatedly asked them for information on how they applied that common law standard,” Steckler said Friday by phone.
The memo said McKenna told investigators, “again, until I know what your jurisdiction is, I am not going to respond to your questions.”
West Palm Beach is one of 14 cities that have filed a lawsuit challenging the fee that all Palm Beach County cities are required to pay to fund the Inspector General’s office. Steckler said Friday’s memo was unrelated to that lawsuit.
“West Palm Beach has the been one of the leaders in the lawsuit for years and it hasn’t impacted us,” she said. “We’re objective.”