State Attorney’s Office opens investigation

Jun 29, 2023 By MEGHAN BRADBURY 8 min read

At the request of the Cape Coral City Council, the State Attorney’s Office has opened an investigation into a citizen complaint questioning the residency of a Council member accused of not living in her district when she ran for office.

The elected board on Monday rejected a bid to charge Councilmember Patty Cummings with violating the city’s charter residency requirements when she qualified to run for her District 4 seat then voted 7-1 to have the State Attorney’s Office look into the allegation as it has subpoena authority, something the city’s independent investigator lacked.

The State Attorney’s Office confirmed Wednesday that it has accepted the request, which asks the office to “assume responsibility for the investigation moving forward” with the city to provide the report it commissioned and any related documents already collected.

“We have opened an investigation based on the referral from City Council,” Samantha Syoen, State Attorney’s Office spokesperson, said via email. “I am not able to discuss the matter further at this time.”

The office, like most investigative agencies, does not comment on investigative matters while they are open.

The motion to turn over the complaint over to the office headed by State Attorney Amira Fox was made by Mayor John Gunter who said the office could better follow up on the investigative report commissioned by the city and provide a report to Council once its look is complete.

“When I look at this investigation, at best, it is incomplete. She (the investigator hired by the city) wasn’t provided, or the individuals elected not to participate in the investigation. In order for us to find a complete investigation the powers of subpoena would have to be utilized. We know there is a lease, we need to get a copy of that particular lease,” Gunter said at Monday night’s special meeting,

When the vote was called, Cummings, the lone dissenting vote, hesitated before she voted no.

“All the information is there. (I am) put in this situation to where you have all the data that was sent from my attorney. I have to say no,” said Cummings, who has steadfastly denied the allegation that she misrepresented the district in which she lived.

Before the vote was taken, Councilmember Jessica Cosden said the city already has had someone in office for seven months of a four year-term. She said that same person could be in office for many more months as the investigation continues.

“This investigation is complete. It’s very obvious. We all know where she lived. I don’t want to kick the can down the road in hopes someone handles it because we can right now,” Cosden said.

Councilmember Dan Sheppard told the Council that if they were basing their decision on what is said in the report in reference to his name, it is all false information, not even close to the truth.

“It was madeup information. Don’t let that sway you in any way. That was false information,” Sheppard said. “Make sure you are basing your information on facts and not made up fiction. A lot of things in the report are made up fiction.”

The report was prepared by attorney Vicki L. Sproat of Boy Agnew Potanovic Miller, who was retained by the city on March 24 to conduct an independent inquiry as to whether Cummings was a resident in District 4 at the time she filed paperwork to run.

Using what she called a “preponderance of evidence standard,” Sproat found that “Cummings was not a full-time or part-time resident” of the home she listed on Palm Tree Boulevard during the relevant period and that “Cummings did not reside in District 4 until March 22, 2023.”

Sproat also found that “Cummings failed to cooperate in the investigation,” citing what she called “the greater weight of the evidence.”

Council called for the fact-finding investigation after a Cape Coral resident, who requested whistleblower anonymity, sent a complaint to various officials alleging that Cummings “fraudulently represented herself as living in District 4” in violation of a city charter provision that requires candidates to reside in the district they seek to represent and has been interpreted as it requires they live within their district while they serve.

According to the report, “Cummings had an intent to ‘claim’ Palm Tree Boulevard as her residence” but documents provided “do not prove Cummings ever intended to live there, or that she ever actually lived at Palm Tree Boulevard during the relevant period.”

In addition, the report states that “the greater weight of the evidence supports a finding that Cummings leased a house on SW 50th Terrace in District 2 when she filed for election and that she intended to continue to live there until the lease expired in November 2022. There is ample evidence to show Cummings and her family occupied the house on SW 50th Terrace as their home at the time she filed to run and continuously thereafter until they evacuated the house after Hurricane Ian.”

Gunter, at the beginning of the special meeting, said on March 15 agreed to have an investigation conducted concerning the allegation. Monday’s meeting was to determine what the next steps, if any, were going to be.

“I think at this time, as a collective body, we have to make a decision of what our next steps are. We are not here today to have a hearing. There are regulations and notifications that we must abide by,” Gunter said. “On June 23, our deputy city attorney had put out a memorandum to all of our council with some options.”

He said he reached out to the executive director of the Florida Commission on Ethics, who said since it is a resident issue it does not fall within her purview. Gunter said she made a couple of recommendations, which included moving the complaint forward with the state Election Commission, the Florida Department of Law Enforcement, as they have an election unit, or pass it onto the state attorney in the local jurisdiction.

“I reached out to Amira Fox, the state attorney. They would be willing to take a look at the investigation. They have powers to subpoena,” he said. “The investigation is incomplete mainly because a lot of records were not provided (that) would be relevant in this particular case.”

Gunter said the only reason he believes the investigator they hired was not able to retain documents is because some of the parties failed to cooperate.

“The state attorney is willing to review the matter and then make determination if nothing should be done because of no crime, or regulations through the election commission violated, or if she feels there is merit to the accusations,” he said.

Cosden asked how long it would take the state attorney’s office to do the investigation.

Gunter said although he could not say how long, he was told they would start the investigation immediately.

“I don’t feel like I need to pass anything on to another agency. I feel I can make a good decision here as a council member,” Cosden said.

Gunter said personally for him, when taking all the individuals out of the equation, it’s about the public trust that our community has in the local election.

“For me, I want to make sure our community has the public trust in our local election. Whatever it takes in order to make sure our community feels confident,” he said.

The first motion to conduct forfeiture of office, which was made by Councilmember Robert Welsh, failed.

Welsh said the investigation and other evidence confirms that Cummings did not reside at the Palm Tree address and failed to reside there four months after being elected. He said they need to protect the city’s charter.

“You need to live in the district that you run for and stay in that district, hurricane or not,” Welsh said. “I think we only have one course of action here.”

Councilmember Bill Steinke said it is really simple for him, right and wrong, which requires facts and evidence. He asked for a hearing, because information can be subpoenaed.

“Where did the council member reside on May 10 through Sept. 28? Certainly displacement happened because of the hurricane, that is an extreme circumstance,” Steinke said. “Where were the clothes, the food, the car overnight in the driveway? Where did the candidate reside?”

Cummings did not respond to texts and voicemail requesting comment. A voicemail message left for her attorney, Jay P. Lechner of Lechner Law, was not returned as of press time.

To reach MEGHAN BRADBURY, please email news@breezenewspapers.com