REPORT OF INVESTIGATION

COMPLAINT NO. 16-033

(1) This complaint and the amendments were filed by Clara Anne Graham, in her capacity
as the President of the Lee County League of Woman Voters. The Respondent, Larry Kiker,
is a member of the Lee County Commission. The Complainant alleges the Respondent failed
to disclose lobbying contacts, as well as meetings with a developer and a registered lobbyist
representing developers, in a quarterly log, as required by County ordinance. The complaint
further alleges that the Respondent personally benefited from his interaction with a developer.
Also, the complaint alleges the Respondent attempted to "fast-track" the approval of a
redevelopment project by placing a "walk-on" item on a Board of County Commissioner's
agenda for a regular meeting.

(2) The Executive Director of the Commission on Ethics noted that based upon the
information provided in the complaints, the above-referenced allegations were sufficient to
warrant a preliminary investigation to determine whether the Respondent violated Section
112.313(2), Florida Statutes (Solicitation or Acceptance of Gifts), 112.313(4), Florida Statutes
(Unauthorized Compensation), 112.313(6), Florida Statutes (Misuse of Public Position),
112.313(7)(a), Florida Statutes (Conflicting Employment or Contractual Relationship).

Allegation Regarding Lobbyist Contact Log Omissions

(3) The Complainant provided a copy of Lee County Ordinance 03-14 regarding lobbyist
reporting on pages 5 through 12 of the complaint. Section Three of the Ordinance (complaint
page 7) pertains to record-keeping responsibilities and relates the following:

County Commissioners and employees as specified in Section Two (E), who

make regulatory decisions or recommendations to the Board of County
Commissioners shall be responsible for maintaining a written log which
documents each oral lobbying communication or meeting with a lobbyist
whether paid or unpaid, held for the purpose of lobbying outside a duly noticed
public meeting or hearing on the record.

(4) The County ordinance defines a lobbyist as "any person, firm, corporation or other
legal entity, paid or unpaid, who, on behalf of another, engages in the activity of lobbying as
defined in this ordinance." The ordinance further defines lobbying as "communications
outside of a duly noticed public meeting or hearing on the record, whether written or oral by a
lobbyist" with, among others, a County Commissioner, "whereby the lobbyist seeks to
encourage or influence the passage, defeat, modification or repeal of any item which may be
presented for vote before the Board of County Commissioners [.]" The ordinance requires that
the logs be submitted to the Clerk of the Court at the end of each quarter and specifies a form.

(5) Ms. Antionette Johnson, the Respondent's Executive Assistant, advised that she
maintained the Respondent's lobbyist contact logs during 2015, and that she completed the
original quarterly logs, as well as his amended logs. Ms. Johnson advised that she has served

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as a County employee for approximately 20 years and that she previously maintained lobbyist
contact logs for senior County management employees. She recounted that when completing
a quarterly log for a County employee, she would fill in any lobbyist meeting information of
which she was aware and then, at the end of the corresponding quarter, she would submit the
log to the County employee for their review and approval. She recalled that, typically,
County employees responded by providing notes regarding their logs, which enabled her to
complete the logs with more detail than she was able to record on her own.

(6) Ms. Johnson advised that when she began serving as the Respondent's Executive
Assistant in late 2014, she used the same method of maintaining the quarterly log, completing
the log with as much initial detail as she was able to record. However, she said that the details
of the Respondent's meetings were not always available to her. For example, she was not
always aware of the subject matter of meetings, and she stated that on those occasions she did
not complete the portion of the form which reflects the subject. Ms. Johnson advised that due
to her previous experience with County managers, she expected the Respondent to provide
further information to her regarding his lobbyist contact activities when he reviewed the logs
she completed at the end of each quarter during 2015. Ms. Johnson advised that when the
Respondent returned the logs to her after having reviewed and signed them, she was surprised
that he had not provided information for her to "fill in" the missing information on the forms.
For example, she said, although she had recorded several meetings for which she had not
specified a purpose, the Respondent did not provide her with information regarding the
subject of the meeting. However, Ms. Johnson advised that she did not question the
Respondent regarding the omissions. Also, she said that the Respondent never directed her to
omit that he had met with a lobbyist or asked her to omit the subject of any meetings he had
with lobbyists.

(7) Mr. Roy Hyman advised that he served as the Respondent's Executive Assistant from
May 2013 until June 2014. He recalled that it was challenging for him to complete the
Respondent's lobbyist contact logs during that period because the Respondent used several
different devices to maintain his schedule, such as a cellular telephone, an Apple iPad, and a
computer. Mr. Hyman advised that he had to remain "vigilant" to ensure that the lobbyist
logs were properly maintained. Furthermore, he said, it appeared to him that the Respondent
was less concerned that the logs were properly maintained than were other County officials
with whom he is familiar and who take the completion of the logs very seriously.
Nevertheless, Mr. Hyman advised that the Respondent never directed him to omit from the
logs that a meeting had taken place or to omit the subject of a meeting.

(8) The amended complaint filed March 17, 2016, the Complainant includes a News-
press.com article (pages A9 through A14), which reports that meetings with Fort Myers
Beach Developer Tom Torgerson and Lee County Registered Lobbyist Tina Matte were
among the most notable omissions from the Respondent's lobbyist contact logs. The article
relates that Mr. Torgerson had recently acquired several million-dollar parcels of real estate in
Fort Myers Beach for the purpose of developing the properties as a lodging and restaurant
venture named Grand Resorts Fort Myers Beach. The complaint relates that Mr. Torgerson's
proposed development plan would require him to also acquire nearby Crescent Beach Park, a
public park owned by Lee County.

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(9) County records reflect that on April 4, 2016, the Respondent filed an amended log for
the quarter ending March 31, 2015. On June 20, 2016, he filed amended logs for the quarters
ending June 30, 2015 and December 31, 2015. And on June 21, 2016, he filed an amended log
for the quarter ending September 30, 2015. The original and amended logs are included as
Exhibit A.

(10) The Respondent's amended logs reflect that information not included in his original
logs regarding meetings with Mr. Torgerson, Ms. Matte, and others. Additionally, the
Respondent's amended logs confirm that as alleged, he participated in more than 28 telephone
conversations with Mr. Torgerson regarding the proposed Grand Resorts development. The
Respondent did not report any of these telephone calls on his original lobbyist contact logs.

(11) The Respondent stated that he did not understand that calls made outside of his
County Commission office were required to be disclosed on his lobbyist contact logs. He
recalled that he subsequently included the calls on the amended forms after speaking with Lee
County Attorney Richard Wesch.

(12) Mr. Wesch recalled that during early 2016, the Respondent contacted him regarding
the completion of his 2015 lobbyist contact logs. He recalled relating to the Respondent that
although it was not necessary to place all communications with lobbyists on the logs, "in an
abundance of caution" he should include any discussions with lobbyists which related to
County business or matters likely to come before the Commission. Mr. Wesch advised that
the discussion was the first time that the Respondent had sought his advice on the matter and
that this was the first time that he provided information to the Respondent regarding the
completion of the logs.

(13) The Respondent acknowledged that as reflected by his amended logs, his original logs
contained numerous omissions. He also acknowledged that the amended logs were completed
after he became aware of the instant complaint.

(14) The Respondent related that although he failed to include the two meetings (June 15
and September 23, 2015) with Mr. Torgerson on the original log, the meetings were listed on
his office computer calendar, as well as the logs of other County officials who attended the
meetings. He asserts that the inclusion of the meetings on his calendar demonstrates that his
omission of the meetings from his logs was not an attempt to conceal them.

(15) Ms. Johnson confirmed that the Respondent's two meetings with Mr. Torgerson are on
his computer calendar. She asserted that it was her failure to place them on his lobbyist
contact logs which resulted in the omissions.

(16) A review of County records confirmed that County Attorney Wesch reported the two
meetings on his quarterly logs and the logs reflect that the Respondent attended the meetings.

(17) The Respondent further acknowledged that for three separate meetings with Tina
Matte, who is a Lee County Registered Lobbyist, the subjects of the meetings were not
included on the logs. He also acknowledged that Ms. Matte provided consulting services to

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Mr. Torgerson related to the Grand Resorts project. The Respondent related that with respect
to his meetings with Ms. Matte, their omissions from his initial logs were "oversights" that he
should have discovered during his review of the logs.

(18) The Complainant maintains that the Respondent has a conflict of interest regarding the
Grand Resorts project because the Respondent's spouse, Paula Kiker, owns a real estate firm
that was involved in a Fort Myers Beach million-dollar property purchased by Mr. Torgerson
in August 2015. However, she is not aware of a specific conflict related to any of the other
lobbyist contacts which were not included on the Respondent's original logs.

(19) In addition to the meetings and telephone calls with Mr. Torgerson which were
omitted from the lobbyist contact logs, and the information regarding meetings with Ms.
Matte which was omitted from the logs, the Respondent further acknowledged that
information regarding meetings with other lobbyists also was not included on the logs. For
example, he confirmed that the subjects of meetings with Howard Wheeler, Rob Weber, Carl
Barracco, and Mike Von Plinsky should have also been included on the logs. However, he
said that meetings with Keith Basniak, W. Kirk Beck, John Callis, and Jim Humphries were
mistakenly placed on the logs even though those meetings were of a personal nature and were
not required to be reported on the logs.

(20) Mr. Torgerson recalled that from January through March 2015, he began purchasing
commercial properties near the Estero Boulevard intersection on Fort Myers Beach. He
advised he was aware that City leaders and many residents wanted the area to be redeveloped
with new infrastructure, and wanted traffic congestion in the area to be reduced by an
integrated roadway and redevelopment plan. Mr. Torgerson advised that he is the Chief
Executive Officer of TPI Hospitality, which operates more than 40 hotels and convention
centers. Also, he has been a long-time visitor to the area and became a resident of the City in
November 2013, when he built a retirement home in Fort Myers Beach.

(21) Mr. Torgerson recalled that in March 2015, after he had purchased several commercial
properties on Fort Myers Beach for the purpose of redeveloping the area, the Respondent
contacted him by telephone to inquire about his redevelopment plans. Mr. Torgerson said
that, at the time, he believed he had a general idea of how to proceed with a redevelopment
plan. However, he recalled the Respondent informing him that while several developers had
proposed redeveloping the Estero Boulevard area in recent years, none of them had been able
to successfully bring their plans to fruition. Mr. Torgerson advised that from the beginning,
as a resident of the City, it was important to him to develop the area in a manner that garnered
the support from the local community. Mr. Torgerson advised that he came to understand that
the Respondent, as a County Commissioner and a long-time resident of Fort Myers Beach
with previous experience as Mayor of Fort Myers Beach, had knowledge and experience that
could benefit his redevelopment project. Mr. Torgerson advised that the Respondent
expressed an interest in helping him to develop plans for the redevelopment of the area that
would be well received by residents and public officials. He related that because of the
Respondent's background, he was glad to have the Respondent's assistance. Mr. Torgerson
asserted that the Respondent offered his assistance with the project because he (the

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Respondent) shared the hope that the redevelopment would improve the area and he wanted to
be associated with its successful completion.

(22) The Respondent acknowledged that he initiated contact with Mr. Torgerson when he
became aware that Mr. Torgerson had purchased several commercial properties in Fort Myers
Beach. He related that he represents the Lee County district which includes Fort Myers
Beach. The Respondent further related that he formerly served as Mayor of Fort Myers
Beach and that in the past several developers have unsuccessfully attempted to redevelop the
area near properties purchased by Mr. Torgerson. Therefore, he said, he contacted Mr.
Torgerson to offer the benefit of his experience, as well as to encourage him to communicate
with other County officials whose knowledge and expertise would benefit his redevelopment
initiative.

(23) Mr. Torgerson acknowledged having many meetings and telephone conversations with
the Respondent throughout 2015 regarding his redevelopment plans. Although he said that he
could not recall the details of individual meetings and telephone calls, he related that the
subjects of their conversations can be placed into different categories. He advised that during
March through May 2015, they discussed general concepts of the project. Mr. Torgerson said
that due to the complexity of the project, which required local, state, and federal government
approval, there were many details to consider. He further recalled that telephone calls during
June through August 2015, related to how best to communicate his proposed development
concept to the regulatory agencies and the public. In the latter part of the year, Mr. Torgerson
said, the telephone calls related to the organization of a joint meeting between the Fort Myers
City Council and the Lee County Commission, which he recalled took place on November 30,
2015.

(24) Mr. Torgerson advised that it seemed appropriate for the Respondent to have close
communication with him regarding the proposed redevelopment project. He related that the
Respondent facilitated the meetings he had with public officials from the City and County to
help move the project forward.

(25) Mr. Torgerson confirmed that, as alleged by the Complainant, Paula Kiker owns a real
estate agency that was involved in one of the property purchases he made in support of the
redevelopment plan. He related that on August 8, 2015, he purchased Nemo's/Salty Crab
restaurant on Fort Myers Beach for $3.2 million. He said that Ms. Kiker's real estate agency,
Lahaina Realty, was the listing agency for the property.

(26) Mr. Torgerson explained that when he first became interested in the Nemo's/Salty
Crab property, he directly contacted the owner of the property, Patrick Ciniello. He advised
that although the property had previously been listed for sale, it was no longer listed at the
time that he contacted Mr. Ciniello. Mr. Torgerson said that although he and Mr. Ciniello
agreed on the details of the purchase, Mr. Ciniello advised that Bev Larson, a real estate agent
with whom Mr. Ciniello had a long-standing business relationship, would represent his
interests as the seller of the property. Mr. Torgerson said he did not become aware that Ms.
Larson was associated with Lahaina Realty until he signed the purchasing documents to

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acquire the property. He recalled that while signing the purchasing agreement for the
property, he noticed that Ms. Larson was identified as an agent of Lahaina Realty.

(27) Mr. Torgerson recalled that he and the Respondent discussed his purchase of
Nemo's/Salty Crab property before he contacted Mr. Ciniello. He explained that the
acquisition of the property was a "logical" and necessary purchase, given its location relative
to the other parcels involved in the project. However, he advised that the Respondent never
solicited or accepted anything of value from him related to the project. Additionally, he said
that the Respondent did not receive any compensation from him regarding the project. Mr.
Torgerson related that he provided funds only to the seller of the Nemo's/Salty Crab property
for the purchase, and that he did not provide any payments directly to Ms. Larson or Lahaina
Realty.

(28) Mr. Torgerson further advised that he had no contractual or employment relationships
with the Respondent. He also said that the Respondent had no involvement in any of the
other property purchases for the project and that Lahaina Realty had no involvement in any of
his other transactions. Mr. Torgerson is not aware of any personal benefit the Respondent
received from his purchase of the property. He advised that he did not even contribute to the
Respondent's campaign for reelection in November 2016.

(29) Florida Department of State, Division of Corporations records identify the Respondent
and Paula Kiker as Managing Members of FMB Sun, LLC. Ms. Kiker related that FMB Sun
does business as Lahaina Realty. However, she advised that she operates the real estate
agency and that the Respondent does not participate in any way in the operation of the
business, and that he does not hold any real estate licenses. She related that the Respondent is
identified as a LLC managing member for tax reporting purposes only, as she and the
Respondent file a joint federal tax return.

(30) Ms. Kiker advised that her company maintains between 75 and 100 properties listed
for sale and that the Respondent was not aware that Lahaina Realty served as the listing
broker for Mr. Torgerson's purchase of the Nemo's/Salty Crab property. She explained that
although the property had previously been listed for sale, it was not actively for sale and that
it was not listed in the Multiple Listings Service (MLS) until the day before Mr. Torgerson
purchased the property. She explained that Ms. Larson is a realtor associated with Lahaina
Realty and that due to her (Ms. Larson's) previous professional relationship with the seller,
Lahaina Realty was included in the transaction. Ms. Kiker confirmed that Lahaina Realty
received a portion of the commission for the sale of the property. However, she requested
that, for business purposes, the amount of the commission not be disclosed in this report of
investigation.

(31) The Respondent denied that he had any involvement in Mr. Torgenson's purchase of
the Nemo's/Salty Crab property and indicated that he did not know Lahaina Realty served as
the real estate broker for the sale. Additionally, he denied that a "quid quo pro" agreement
existed between him and Mr. Torgerson or that he solicited anything from Mr. Torgerson
relative to the property purchase.

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(32) Mr. Torgerson further advised that although the property was purchased with the
intention of redeveloping the area, he ultimately decided not to move forward with the
redevelopment plan. Therefore, he said, he never applied for a permit, a land use or zoning
change, or in any other way sought County approval of his redevelopment plan.

(33) Mr. Douglas Meurer, Lee County Assistant Manager, recalled that in April 2015, he
began meeting with Mr. Torgerson regarding his proposed redevelopment plan. Mr. Meurer
does not specifically recall whether the Respondent introduced Mr. Torgerson to him or if he
directly communicated with the Respondent about Mr. Torgerson's development proposal.
However, he said that at the time he met with Mr. Torgerson, he was aware that the
Respondent wanted a member of the County's staff to meet with Mr. Torgerson to answer his
questions about the project and to provide guidance regarding the County's development
approval process.

(34) Mr. Meurer acknowledged that between April 2015 and November 2015, he met with
Mr. Torgerson on numerous occasions to discuss his proposed Grand Resorts project. Mr.
Meurer advised that he meets with developers on a daily basis regarding proposed projects in
Lee County and that it was not unusual for the Respondent to recommend that he discuss
regulatory matters affecting this particular project with Mr. Torgerson. Mr. Meurer advised
that he is not aware of any actions by the Respondent which provided a special benefit to Mr.
Torgerson. Mr. Meurer confirmed that no land use applications were received by the County
relative to Mr. Torgerson's Grand Resorts project.

(35) Mr. Meurer advised that the Respondent had the support of the County Commission to
serve as a liaison between the Commission and Mr. Torgerson. In particular, he recalled that
during a June 16, 2015, meeting, the Respondent advised that he had communicated with Mr.
Torgerson about his newly purchased Ft. Myers Beach property and asked the Commission to
allow him to continue working with Mr. Torgerson. Mr. Meurer recalled that although the
Board did not vote on the matter, the other members of the Commission consented to the
Respondent's request. Also, he recalled that during a joint meeting of the Ft. Myers City
Council and the County Commission on November 30, 2015, the Commission Chair made
opening comments in which he immediately recognized the Respondent as the Commission's
representative regarding the proposed development and asked him to make additional
remarks.

Allegations Regarding Walk-On Agenda Item

(36) The complaint alleges that the Respondent misused his position to include a measure
involving Mr. Torgerson's development proposal as a "walk-on" agenda item before the
County Commission in order to "fast-track" the County's approval of the development.

(37) County Attorney Wesch explained that a walk-on agenda item is added to a meeting
agenda after the regular agenda is finalized, which he said is typically two weeks prior to a
scheduled meeting.

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(38) County records reflect that on November 30, 2015, a joint meeting of the Lee County
Commission and the Fort Myers City Council was held in which presentations were made
regarding Mr. Torgerson's Grand Resorts development project. The Commission did not vote
on any measures during the joint meeting.

(39) On December 1, 2015, during a regular meeting of the County Commission, County
Attorney Wesch sought clarification from the Commission regarding their direction to the
County's staff concerning the Grand Resorts proposed development. Specifically, the minutes
to the meeting reflect that Mr. Wesch stated:

At the request of the Board, County Attorney Richard Wm. Wesch stated that
in yesterday's meeting, discussion was to have an agenda item for the Board's
consideration at the next Regular scheduled meeting on December 15, 2015
which would point out goals to be achieved on some of the commentaries by
the developer.

(40) Mr. Wesch explained that Mr. Torgerson's proposed development potentially involved
County participation in a land exchange, as well as issues related to the rerouting of Estero
Boulevard, and County support of an application for the construction of a seawall on Fort
Myers Beach. Therefore, he said, during the November 30, 2015, joint meeting, County
Commissioners had many questions concerning how the approval process might proceed. He
related that addressing the Commissioners' concerns was difficult because Mr. Torgerson had
not submitted an application to the County requesting approval of any aspect of the proposed
development. Therefore, he recalled making the above comments during the December 1,
2015, meeting to clarify that during the next regular meeting on December 15, 2015, the
Commission would be presented with a measure which would direct County staff to conduct
an analysis of the Grand Resorts development proposal in advance of receiving a development
related application from Mr. Torgerson.

(41) On December 15, 2015, as alleged in the complaint, a walk-on item was added to the
agenda for the meeting. The meeting minutes (included on page B5, Exhibit B) reflect that
the walk-on item was a measure directing staff to gather information and details regarding the
proposed Grand Resorts project.

(42) The minutes further reflect that the item was added to the agenda by the County
Manager's office, and Mr. Wesch confirmed that the item was not placed pursuant to a request
by the Respondent. Mr. Wesch explained that the walk-on agenda item was intended to
authorize the County staff to engage in an analysis of the project in advance of the County
receiving a formal application for the project and that the measure was in no way related to an
attempt by the Respondent to expedite the approval of the project. He maintains that the
walk-on item was added in response to the expressed desire of members of the Commission to
receive information from County staff regarding the project.

(43) The Respondent recalled that on December 14, 2015, (the day prior to the County
Commission meeting in which the walk-on item was added) Mr. Torgerson staged an open

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house meeting in which information was presented to the public regarding the Grand Resorts
development. The Respondent advised that he attended the open house and that it was clear
to him that many people in the community were very unhappy about the proposed
development and the changes that it would bring to Fort Myers Beach. He advised that it
appeared to him that the County's willingness to conduct an analysis of the Grand Resorts
project prior to Mr. Torgerson submitting an application created the perception that the
project had already been informally approved, which was not the case. Therefore, he said, he
proposed during the December 15, 2015, meeting that the measure directing County staff to
conduct an analysis of the project be deferred until a later date.

(44) The minutes of the December 15, 2015, meeting reflect:

Commissioner Kiker provided a brief update on a December 14th Open House

held by the developers of Grand Resorts-Fort Myers Beach, noting a
significant number of citizens in attendance and relating his concerns about
issues of which he became aware at the event and moved to defer the item,
requesting direction to Staff and County Attorney for the commencement of
due diligence, by exploring and defining in Gantt Chart format, the project's
overall process, including meetings with the Fort Myers Beach Town Council
to bring back to the Board, providing two-weeks' notice in advance of placing
the item back on the agenda.

(45) Mr. Wesch advised that since the meeting on December 15, 2015, Mr. Torgerson has
not pursued the construction of Grand Resorts Fort Myers Beach. Therefore, he said, the
deferred measure authorizing the County staff to collect information regarding the project,
which was deferred again during the meeting, has not again been considered by the County
Commission.

END OF REPORT OF PRELIMINARY INVESTIGATION