Saturday, October 10, 2020

Florida Mosquito Control Association Inflicts Unconstitutional Gag Order on Our Elected Officials

Florida Mosquito Control Association, Inc. President DONNIE POWERS sells malathion for FMC Corporation; DONNIE POWERS lives in the middle of Alabama.  

How did a multinational corporation with a record of government contracts fraud against the federal government (on the Bradley Fighting Vehicle) get to install its malathion marketer as President of the Florida Mosquito Control Association when he does not live in Florida and works for a vendor?

Feeling his oats, DONNIE POWERS & Co. have downgraded education, destroyed the DODD SHORT COURSES, and seek to keep secrets about finances,  Enough.

“A double-minded man is unstable in all his ways” (James 1:8). 

Once again, the pesticide industry satraps and cat's paws who have taken over the Florida Mosquito Control Association, Inc. are trying to conceal wrongdoing. 

Faced with dozens of members requesting removal of FMCA;s three top officers, explained here, FMCA is attempting to silence the dissenting government employee members, threatening them with an illegal, unconstitutional gag order, demanding to silence them if they make what FMCA considers to be "personal attacks" at what it hopes will be a closed meeting on October 13, 2020. 

FMCA's rules remind me of longtime U.S. Rep. John Dingell (D-Mich.) who said, "If I write the procedures and you right the substantive law, I'm going to win every time."

FMCA's unconstitutional rules contemplate no First Amendment rights.

FMCA's unconstitutional rules call for the accused to preside at meetings on their own bad acts.

Thomas Jefferson said, "I have sworn before the Altar of Almighty God, eternal hostility against very form of hostility over the mind ...."  I reject FMCA's gag order and call on all members to do likewise.

LOBBYIST MARTIN CHRISTOPHER LYON of LEWIS, LONGMAN & WALKER bills FMCA to help it conceal wrongdoing from its Florida government members.  Enough.

Unjust stewards of the public fisc have wasted tens of thousands of dollars on padded bills by LEWIS, LONGMAN & WALKER, whose $40,000/year lobbying bill is a stench in the nostrils of our State of Florida, and calls for criminal, civil and administrative investigations for self-dealing --- defending Board members and writing biased procedures to keep them in office.

We, the People of Florida  know better.  We in the reality-based community, who believe in the Rule of Law, have done our homework.  I am a candidate for Anastasia Mosquito Control District of St. Johns County (AMCD). 

We know that:

1. It would be unethical and a conflict of interest for LLW to defend FMCA officers.  Their duty is to the organization, not to the mendacious marathon marketer illegally selected as President in an illegal election.

2. The President, Vice President and President Elect of FMCA cannot preside at the FMCA meeting on their ouster. 
  1. Conflicts of interests are to be scrupulously guarded against. See, e.g., United States v. Mississippi Valley Generating Co., 364 U.S. 520, 548 (1961)("the 'Dixon-Yates' case," involving TVA rivals' conflicts of interest in a proposed Memphis coal-fired powerplant), citing Matthew 6:24 -- "no [person] can serve two masters," holding that laws and rules preventing conflicts of interest are aimed "not only at dishonor but at conduct that tempts dishonor."   All conflict of interest laws are based upon Matthew 6:24 ("A man cannot serve two masters"), which the unanimous Supreme Court decision by Chief Justice Earl Warren deemed to be both a "moral "moral principle" and a "maxim which is especially pertinent if one of the masters happens to be economic self-interest."  
  2. FMCA members have a First Amendment right to be heard and needed in FMCA, which represents government employees and officials. Our First Amendment deserves "breathing space."  NAACP v. Button, 371 U.S. 415, 433 (1963) New York Times. v. Sullivan, 3766 U.S. 254 (1974); Gasparinetti v. Kerr, 568 F.2d 311, 314-17 (3d Cir. 1977)(illegal restrictions on policemen’s First Amendment rights); Philadelphia Newspapers, Inc. v. Hepps, 479 767, 772, 777 (1986)(O’Connor, J.)(newspaper entitled to breathing space in defamation case); Hustler Magazine v. Falwell, 485 U.S. 46, 52, 56 (1988) (Rehnquist, J.) (magazine parody of TV preacher entitled to breathing space); Keefe v. Ganeakos, 418 F.2d 359, 362 (1st Cir. 1969)(Aldrich, C.J.)(chilling effect on First Amendment illegal suspension of teacher over Atlantic Monthly article on Vietnam War); Parducci v. Rutland, 316 F.Supp. 352, 355, 357 (M.D. Ala 1970)(Johnson, C.J.)(chilling effect in illegal firing of English teacher over Kurt Vonnegut’s 
  3. As Justice Robert Houghwot Jackson wrote for the Supreme Court, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein." West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
  4. James Madison wrote in The Federalist No. 10: "No [person] is allowed to be a judge in [his/her] own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time . . . .".
  5. The Supreme Court held in In re Murchison, 349 U.S. 133, 136 (1955) (Black, J.), "[O]ur system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome." See also TWA v. Civil Aeronautics Board, 102 U.S. App. D.C. 391, 392, 254 F.2d 90, 91 (1958). Spencer v. Lapsley, 20 How. 264, 266 (1858); Publius Syrus, Moral Sayings 51 (D. Lyman transl. 1856) ("No one should be judge in his own cause."); Blaise Pascal, Thoughts, Letters and Opuscules 182 (Wight transl. 1859) ("It is not permitted to the most equitable of men to be a judge in his own cause.").
  6. As William Blackstone wrote, "[I]t is unreasonable that any man should determine his own quarrel," 1 W. Blackstone, Commentaries on the Laws of England 91 citing Dr. Bonham's Case, 8 Rep. 114a (C.P. 1610); see also City of London v. Wood, 12 Mod. 669, 687 (1701)(Lord Holt)(invalidating fine for refusal to serve as sheriff recovered by the city in its own court of Mayor and Aldermen). See also Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)(overruling case where Chief Justice of Alabama Supreme Court sat in judgment of case that would set precedent for his own pending case); Ward v. Village of Monroeville, 409 U.S. 57 (1972); Gibson v. Berryhill, 411 U.S. 564 (1973); Withrow v. Larkin, 421 U.S. 35 (1975); Cinderella Career and Finishing Schools, Inc. v. FTC, 425 F.2d 583 (D.C. Cir. 1970); American Cyanamid Co. v. FTC, 363 F.2d 757 (6th Cir. 1966); SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir.1977). 
  7. FMCA officers' blatant conflict of interest is the sort that Anglo-American courts have been protecting us against for some 409 years. since at least 1610. Dr. Bonham's case, supra; Tumey v. Ohio, 273 U.S. 510, 522-24 (1927) (Taft, C.J.).  See also Laird v. Tatum, 409 U.S. 824, 828 (1972) (Rehnquist, J.), holding that it is well-settled that a government official is disqualified from ruling on a case "if [s]he either signs a pleading or brief" or "if he actively participated in any case. Lewis, Longman and Walker suffers from an appearance of impropriety and conflict of interest in the event it is advising FMCA wrongdoers on how to defeat the recall petition against them. It is plain wrong.

I strongly support the efforts of the Anastasia Mosquito Control District of St. Johns County to hold FMCA accountable, and to withhold sustaining member dues pending reforms. 

The number 01380547-1 appears on every page of the smarmy sniveling sibilant gag order.  That's a matter and document number from the computer system of the snaky corporate law firm of LEWIS, LONGMAN & WALKER, about which this blog has written recently.

Here's their illegal gag order, cooked up by the conflicted corporate law firm of LEWIS, LONGMAN & WALKER, which is running interference for accused wrongdoers who are in control of the association, including President DONNIE POWERS, a mid-Alabama resident heading the Florida Mosquito Control Association, whilst he also markets malathion for FMC Corp.:
Order of Special Meeting Agenda

Pursuant to Section 617.0721(3), Florida Statutes, only active FMCA voting members may participate in the special meeting. The Board will be verifying that all participants in the special meeting are active FMCA voting members and will remove from the meeting any non-members.

A quorum necessary to conduct business of the association is provided by Article VI of the Bylaws, which states “A quorum of any meeting of the Association shall consist of not less than twenty-five (25) voting members, at least two of whom shall be officers of the Association.” The Board will confirm the existence of the necessary quorum for an official meeting of the Association.

Each of the three requests to remove certain officers of the FMCA will be considered separately and in the following order:

Chris Lesser, Vice-President James Clausen, President-Elect Donnie Powers, President

Pursuant to Article III, Section B of the FMCA Bylaws, the President shall preside at “all business meetings of the Association, and at all meetings of the Board of Directors and shall be a voting member.” The President has the authority to run all meetings of the Association, including special meetings. The President will preside over the meeting, except that portion of the meeting relating to the request for his removal from office. For that portion of the meeting, he will turn the gavel over to the Vice-President.

No member may address the Board without first being recognized by the President, who has the ultimate authority to maintain order and decorum at the meeting. Each participant in the meeting will be given the opportunity to address the Board on each of the three removal requests. Each participant’s comments will be limited to 3 minutes per request and no participant shall be allowed to speak for more than three minutes per request. Please refrain from personal attacks on members, officers or directors. Any participant who makes personal attacks will be deemed out of order and their line will be muted.

Removal of an Officer for Cause under Robert’s Rules of Order

Under Article XII of the FMCA Bylaws, in all cases where the Articles of Incorporation or Bylaws of the Association are not specific with regard to a procedure, the business of the Association shall be conducted in accordance with Robert's Rules of Order. The FMCA Bylaws and Articles of Incorporation are silent with respect to the removal of an officer or director, therefore the procedures under Robert’s rules of Order will be followed to the extent they are not in conflict with Florida law.

Robert’s Rules of Order provides due process to the accused and requires impartial investigation and the opportunity for the accused to defend himself against allegations of misconduct. Section 63 of Robert’s Rules of Order addresses the removal of an officer for cause and states:

A society has the right to investigate the character of its members and officers. But neither the society nor any member has the right to make public any information obtained through such investigation; if it becomes common knowledge within the society, it should not be revealed to any persons outside the society. Consequently, a trial must

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always be held in executive session, as must the introduction and consideration of all resolutions leading up to the trial. §63, 655:1-11

For the protection of members and officers, the basic steps that make up the elements of a fair disciplinary process should be understood. The following steps should be followed in the absence of contrary provisions:

  1. (1)  ConfidentialInvestigation by acommittee

  2. (2)  Report of the Committee and preferral of charges

  3. (3)  Formalnotificationoftheaccused

  4. (4)  Trial

  5. (5)  The assembly’s review of a trial committee’s findings

§63, 656:19-32.

Formation of Confidential Investigation Committee

If the rules do not otherwise provide for a method of charge and trial of an officer, a member may, when nonmembers are not present, offer a resolution to appoint an investigating committee. Since the FMCA Bylaws do not provide for any other method of removal for cause, the proper procedure to remove an officer is to first adopt a resolution to form an investigative committee.

The resolution should be in a form similar to the following:

Resolved, that a committee be elected by ballot to investigate allegations of neglect of duty in office by our treasurer, J.M., which, if true, cast doubt on her fitness to continue in office, and that the committee be instructed, if it concludes that the allegations are well-funded, to report resolutions covering its recommendations.

For the protection of the parties who may be innocent, the first resolution should avoid details as much as possible. §63, P. 657.

An individual member may not prefer charges against another member or an officer, even if that member believes he or she has proof of an officer’s or member’s wrongdoing. If a member introduces a resolution preferring charges which are not supported by an investigating committee’s recommendations, the chair must rule the resolution out of order, informing the member that it would instead by in order to move the appointment of an investigating committee.

A resolution is improper if it implies the truth of specific rumors or contains insinuations unfavorable to an officer or member, even one who is to be accused. §63, 657:30 658:5. A member making such a motion is out of order. §63, 658:9.

A motion to form an investigative committee would be governed by Article VII of the FMCA Bylaws which provides:

All motions and resolutions presented at a meeting of the Association involving matters of policy, administration or business shall be referred to the Board of Directors, which shall consider the same and report its recommendation back to the Association; provided,


however, that should any matter require immediate action by the Association, such matters may be considered immediately by consent of three-fourths (3/4) of the active members, present and voting.

If a motion has been made and seconded, and upon conclusion of discussion by the Board on the pending motion, the Board will either take immediate action on the motion to form an investigative committee or permit a vote of the members present. If 3⁄4 of such members vote for immediate action, the resolution should be voted on by the Board immediately. Board members are considered voting members and shall be permitted to vote on immediate consideration of the resolution.

If the Board votes to approve the formation of an investigative committee, members of the committee should be elected by ballot. The manner of such vote is not expressly provided by the FMCA Bylaws or by Robert’s Rules. The Board should implement a fair process for electing committee members. For example, the Board may entertain nominations for the committee from the membership. The only requirement being that the member should be impartial.

Any Member who has been outspoken on any issue that is the subject of an investigation is ineligible to participate in that investigation and may not be elected to the investigative committee. Once a sufficient number of members have been nominated, the names should be put to a ballot of the membership. Each member may vote for one name. The 5 members receiving the most votes should be appointed to the committee.

The Board may decide whether there is a sufficient number of members present at the meeting to impanel an impartial investigative committee. If so, the vote can be taken at the meeting. If there is not a sufficient number of members present, the Board can adjourn and conduct the Committee nomination and election process electronically with the entire membership.

Investigation and Trial

The Committee will conduct its investigation as quickly and thoroughly as possible. If the Committee finds the allegations are not supported by the facts, the matter is concluded. No officer or member may be removed for cause without supporting recommendations from an investigative committee.

If the Committee finds substance in the allegations, the Committee will outline its findings in a report. It will also recommend a resolution preferring charges, arranging for trial, and suspending rights of the officer or director. 30 days is a reasonable time to allow the accused to prepare for trial. A trial before the assembly should be held at a meeting devoted exclusively to the matter.

The resolution would include one or more charges, such as “neglect of duty in office,” and under each charge, one or more specifications (specific allegations) related to the charge. The resolution would also appoint members to serve as “managers” at the trial. Managers are not intended to act as prosecutors, but rather to impartially present the evidence in a manner that will get the truth out. At trial, the accused is permitted to present evidence, including witnesses and may be represented by counsel.

After trial of the accused and pursuant to Section 617.0808(1), F.S. and Article IV of the FMCA Bylaws, the membership will vote whether to remove the accused from office. Each active, voting member of FMCA will be sent an electronic ballot. If a majority of ballots returned by FMCA members vote to



remove the accused from office, the accused officer is deemed removed and a vacancy occurs in the office. FMCA Bylaws provide the method for filling vacancies in office.

The fact that an officer was removed from office is not confidential. However, all other allegations, facts and evidence remain confidential. Any member who publishes any such information or communicates such information to individuals outside of the organization at any time, is subject to disciplinary action, including removal from the organization.


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