Florida Ethics Commission advances my complaint against Polk School Board Member Lori Cunningham

The commission unanimously found "probable cause" that Cunningham's school uniform business relationship with the Lake Wales Charter School system creates an unethical conflict for her.

I traveled to Tallahassee Friday to attend the Florida Ethics Commission’s probable cause hearing concerning the ethics complaint I filed in early 2023 against long-time Polk County School Board Member Lori Cunningham. The hearing was held at the cathedral-like First District Court of Appeal.

Here’s a picture of the hearing room, from between sessions.

For the Ethics Commission, a probable cause hearing functions a bit like a grand jury hearing. A finding of probable cause is akin to an indictment. It does not mean Lori Cunningham is guilty of an ethics violation. It does mean that the Ethics Commission investigators and the commission see probable cause to suspect that she did commit an ethical violation. Here’s what happens next, as explained by the Ethics Commission:

If the Commission finds there is probable cause to believe there has been a violation of the ethics laws, it must decide whether the law actually was violated and, if so, whether a penalty should be recommended. Either the Respondent can request or the Commission may order a public hearing (trial) at which evidence will be presented. These hearings usually are held in or near the geographical location where the alleged violation occurred and usually are conducted by a Division of Administrative Hearings (DOAH) administrative law judge. In lieu of a hearing, the Respondent may resolve a complaint proceeding through a stipulated settlement or consent order entered into with the Commission Advocate and approved by the Commission.

Probable cause hearings are closed to the public; but as the complainant, I was entitled to attend. All of the proceedings, including the preliminary investigation and the audio recording of the hearing, will become available to the public this week when the Commission formally issues its probable cause finding. I would encourage you to read and/or listen to them.

Until then, the Ethics Commission is forbidden from discussing the case or commenting on its progress. But the parties themselves are not bound by that confidentiality requirement.

Nonetheless, I am going to wait until I can review the record closely to parse the details of what turned into a complex and fascinating debate. There are significant case facts I was not aware of when I filed my complaint — as well as issues around the nature of the supervisory relationship of elected School Board members and charter schools.

An unheeded warning

At the end of this article, I have posted publicly, for the first time, the complaint I filed against Lori Cunningham in early January 2023. It concerns Lori’s school uniform sales to both Dundee Elementary Academy (a Polk-district run magnet school) and the Lake Wales Charter district. The Commission did not find probable cause that her relationship with Dundee Elementary Academy violated ethics laws.

My complaint covered similar territory to an article I wrote and published in 2021 about what I (and many other people) considered to be Lori Cunningham’s school uniform business conflict. In short, I publicly warned Lori and everybody else that they should address this issue — long before I resorted to filing a formal complaint.

Here is that article, written more than a year before I filed my complaint that could expose her to formal punishment. I quoted Lori Cunningham herself waving away these concerns and declaring that Polk School Board Attorney Wes Bridges told her she does not have a conflict. Read for yourself:

A personally complex and revelatory hearing

For me, this hearing became all the more remarkable because a beloved family member was on the other side of it.

Lake Wales Deputy Mayor Robin Gibson, a prominent Florida lawyer for 50 years, and one of the most distinguished citizens in the history of Lake Wales and/or Polk County, represented Lori Cunningham in the hearing. In addition to all that, Robin Gibson is the founder and long-time legal counsel to the Lake Wales Charter School District.

Robin Gibson is my cousin.

His mother and my grandmother were sisters — both daughters of prominent Florida lawyer Judge Vertrees (J.V.) Walton, who helped defeat the Florida Ku Klux Klan in the 1920s. If you’re a regular reader, you know I’ve written a book called Age of Barbarity, which chronicles that war against the Klan and the J.V. Walton’s role in fighting and winning it.

A third Walton sister, Kate Walton, collaborated with J.V. Walton to sue Marjorie Kinnan Rawlings for invasion of privacy in 1942. If you’re a regular reader, you’ll know I’m writing a book about that almost famous case — and that Kate Walton recently starred in articles I wrote about privacy and forced birth. Like my Dad, who was also a lawyer, Robin Gibson, early in his career, worked with Kate Walton in the family firm.

I lived in Robin Gibson’s house for a few months when I first moved to Polk County in 1999; and he was at my daughter’s wedding.

And every time the Polk County County School Board had a discussion — or vote — pertaining to the Lake Wales Charter District (and we had many such high profile discussions and votes ), I made sure to publicly disclose my close family relationship to Robin so the public could judge my behavior and decisions within that context.

If Lori Cunningham had enough respect for the public to disclose her own conflicts and complexities publicly, she would not, today, be facing an ethics trial or penalty.

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Here is the text of the complaint I filed and an inventory of exhibits (which I’m not posting here for the sake simplicity). The complaint is pretty brief:

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Lori Cunningham is a long-time Polk County School Board member, with oversight and/or contract-approval responsibilities for Polk County district schools and the charter schools operating within Polk County.  

Cunningham is also the owner of Applied Images, a printing and media business that sells mandated uniform apparel to:

• Bok Middle Academy and Lake Wales High School (at least) in the Lake Wales Charter School network.

• Dundee Elementary Academy magnet school, which is run by the Polk County School District.

In both cases, Board Member Cunningham violates the prohibition on “doing business with one’s agency,” as outlined on page 5 of the Ethics Complaint guidebook, quoted here:

Doing Business With One’s Agency 

(a) A public employee acting as a purchasing agent, or public officer acting in an official capacityis prohibited from purchasing, renting, or leasing any realty, goods, or services for his or her agency from a business entity in which the officer or employee or his or her spouse or child owns more than a 5% interest. [Sec. 112.313(3), Fla. Stat.] 

(b) A public officer or employee, acting in a private capacity, also is prohibited from renting, leasing, or selling any realty, goods, or services to his or her own agency if the officer or employeeis a state officer or employee, or, if he or she is an officer or employee of a political subdivision, to that subdivision or any of its agencies. [Sec. 112.313(3), Fla. Stat.] 

Depending on the specific legal definition of “contractual relationship,” Cunningham may also violate the prohibition on “Conflicting Employment or Contractual Relationship,” also outlined on page 5, as quoted below: 

Conflicting Employment or Contractual Relationship 

(a) A public officer or employee is prohibited from holding any employment or contract with any business entity or agency regulated by or doing business with his or her public agency. [Sec. 112.313(7), Fla. Stat.] 

(b) A public officer or employee also is prohibited from holding any employment or having a contractual relationship which will pose a frequently recurring conflict between the official’s private interests and public duties or which will impede the full and faithful discharge of the official’s public duties. [Sec. 112.313(7), Fla. Stat.]  

I have written publicly about this issue before, on July 8, 2021. At that time, Cunningham responded publicly: “To answer your question, I do not have a contractual relationship with any of the Lake Wales Charter Schools, that would create a continuing or frequently recurring conflict.” 

That’s very debatable. But it does not address the first issue of “doing business with one’s agency.” And at that time, I was not aware of the Cunningham doing business with Dundee Elementary Academy magnet school, which is run directly by the Polk County School District, not Lake Wales Charter.

Here is a brief itemization of the exhibits I’ve attached:

Exhibit 1: A screenshot from the Applied Images website describing Lori Cunningham as its owner, along with her husband.

Exhibit 2: A screenshot from Lake Wales charter’s Bok Academy Facebook feed on June 29, 2021 saying mandatory polo shirts can be purchased at Applied Images (with no other vendor mentioned.)

Exhibit 3: A screenshot from Lake Wales charter’s Bok Academy website from Dec. 15, 2022, identifying Applied Images and a second vendor as vendors.

Exhibit 4: A screenshot from Lake Wales (Charter) High School from 2017 identifying Applied Images as the “official uniform shop for Lake Wales (Charter) High School. 

Exhibit 5: A screenshot from Dundee Elementary Academy magnet school’s website showing Applied Images as one of three uniform vendors for mandatory uniforms.

Exhibits 6, 7, and 8: Screenshots from Applied Images’ website showing uniform apparel for sale for the schools in question.