On February 26, 2025, the First District Court of Appeal issued a significant decision in Underhill v. State, Commission on Ethics. It is not an “ethics are important” sermon. It is a disciplined appellate opinion about statutory text, burdens of proof, and the limits of an agency’s authority to rewrite an ALJ’s work—especially in a penal regulatory scheme.

For public officials and government-adjacent businesses, the case is a reminder that Florida’s ethics laws have teeth. For lawyers, it is also a reminder that the Commission on Ethics does not get to stretch statutory language to fill evidentiary gaps, and it does not get to jack up penalties without doing the hard work the Administrative Procedure Act requires.

THE POSTURE: FIVE VIOLATIONS FOUND, TWO KEY VIOLATIONS DISPUTED, PENALTIES EXPLODED

Douglas Underhill, a county commissioner, faced three consolidated ethics complaints. After a full evidentiary hearing at DOAH, the administrative law judge (ALJ) found three violations—primarily involving accepting certain legal defense fund contributions, and disclosure failures—and recommended public censure/reprimand and a $5,000 civil penalty.

The Commission on Ethics accepted those three violations, but went further. It rejected the ALJ on two additional alleged violations and dramatically increased penalties to $35,000. It also recommended removal from office based on “cumulative severity.”

Underhill appealed only (1) the two added violations and (2) the increased penalties/removal recommendation.

The First DCA set aside the Commission’s final order and essentially told the Commission: you cannot treat statutory elements as optional, and you cannot treat penalty enhancements as an arithmetic exercise.

ISSUE ONE: “DISCLOSURE” IS NOT AUTOMATICALLY A “BENEFIT” UNDER SECTION 112.313(8)

The first contested provision was section 112.313(8), Florida Statutes, which prohibits a public officer from disclosing or using nonpublic information gained by virtue of office “for” personal gain or benefit, or “for” the personal gain or benefit of another person or business entity.

The facts were not good. Escambia County was in active litigation and held attorney-client “shade meetings” under section 286.011(8). The county attorney told the Board the transcripts were confidential until the conclusion of the litigation. Underhill was told not to release them. Within roughly thirty minutes of receiving them, he transmitted the transcripts to a private citizen (Evans) in response to a public records request. The transcripts later showed up on social media.

The ALJ nevertheless concluded the Commission failed to prove, by clear and convincing evidence, the required “benefit” element—i.e., a gain or benefit to Underhill or to someone else flowing from the disclosure. The Commission agreed there was no evidence Underhill personally benefited. But it tried to salvage a violation by reframing the element: Evans “received” the transcripts, so Evans necessarily got a “benefit.”

The First DCA rejected that move for what it was: an effort to equate “disclose” with “benefit.” The statute does not prohibit disclosure in the abstract. It prohibits disclosure for a prohibited purpose—i.e., for gain or benefit to the officer or to someone else. “For” does real work in the sentence. The Commission had to prove not just disclosure, but a benefit (and the purpose nexus). The court held there was no evidence that Evans received any “benefit” beyond mere receipt, and the Commission’s approach improperly collapsed the elements.

This is a big deal in practice. Many ethics statutes are written as element-driven prohibitions. Agencies sometimes try to treat “bad facts” as a substitute for the missing element. Underhill is a reminder that, on appeal, the statutory text wins.

ISSUE TWO: A GOFUNDME PAGE IS NOT AUTOMATICALLY “SOLICITING” A PROHIBITED SOURCE UNDER SECTION 112.3148(3)

The second contested provision was section 112.3148(3), Florida Statutes, which prohibits certain officials from “soliciting any gift from” specified prohibited sources (vendors doing business with the agency, lobbyists who lobby the agency, etc.) when the gift is for the personal benefit of the official or family.

Underhill created a GoFundMe page for legal expenses. A local real estate developer, Hemmer, contributed $250. Hemmer was both a vendor and a lobbyist of the County Commission.

The ALJ concluded the Commission failed to prove a violation of subsection (3) by clear and convincing evidence because there was no evidence Underhill directly contacted Hemmer or otherwise “solicited” him. The Commission rejected that interpretation and adopted an expanded view: there is no distinction between “passive” and “active” solicitation; simply creating a fundraising page can be solicitation.

Again, the First DCA did not accept the Commission’s broadened reading. The court emphasized statutory context and the fact that the Code of Ethics is penal in nature and must be strictly construed, with doubts resolved in favor of the employee (citing Loebig). The key point: subsection (3) is not a general ban on fundraising. It is a ban on soliciting a particular type of gift—one sourced from specifically listed prohibited categories (“from a vendor,” “from a lobbyist,” etc.). The Commission needed proof that the fundraising mechanism was set up to solicit that prohibited type of gift, not merely donations from the public at large.

The opinion also draws support from the broader statutory structure. Other subsections use “directly or indirectly” language when the Legislature wants to capture passive/indirect conduct, particularly in the context of accepting gifts. That phrase is absent from subsection (3)’s solicitation prohibition. The court treated that as meaningful: the Legislature knows how to draft broad language when it wants to, and it did not do so here.

This portion of Underhill matters beyond GoFundMe. It is a general administrative-law lesson: when a statute regulates conduct by reference to specific prohibited sources, the agency must prove the source-focused element—not just “something happened” that feels like fundraising.

ISSUE THREE: THE COMMISSION CANNOT INCREASE PENALTIES WITHOUT A REAL RECORD-BASED EXPLANATION

Even if you agree with the Commission’s policy instincts, Underhill is a straightforward warning about penalty procedure.

Section 120.57(1)(l), Florida Statutes, permits an agency to accept an ALJ’s recommended penalty, but it cannot increase or reduce it without (1) reviewing the complete record and (2) stating with particularity its reasons, citing to the record.

The First DCA found the Commission did not do that. The decision describes the penalty increase as essentially arbitrary: the Commission picked a total penalty number ($35,000) and then divided it across the violations, rather than performing the required individualized, record-cited analysis. The same problem infected the “removal” recommendation, which rested on a generalized “cumulative severity” rationale without sufficient particularity.

The appellate court treated this as an abuse of discretion and, in context, an abuse of authority.

PRACTICAL TAKEAWAYS FOR OFFICIALS, GOVERNMENT-ADJACENT BUSINESSES, AND LAWYERS

1. Ethics enforcement is element-driven, not vibes-driven.
   Bad facts do not eliminate statutory elements. If “benefit” or “purpose” is required, the Commission must prove it with evidence.
2. Statutory words like “for” and “from” matter.
   Underhill is a grammatical opinion in the best sense. Courts will enforce the limiting function of prepositions when the agency tries to read them out.
3. “Solicitation” is not infinitely elastic—especially in penal ethics statutes.
   If the prohibited solicitation is defined by source categories (vendors/lobbyists), the evidentiary focus must be on solicitation of those sources, not generalized fundraising.
4. Penalty enhancements require real work.
   If an agency wants to increase sanctions beyond an ALJ’s recommendation, it must do a complete record review and articulate specific, record-cited reasons. “We think it’s worse” is not enough.
5. For defense counsel: build the appeal around text, burden, and the record.
   Underhill is a model of how to win these cases: identify the missing element, show the agency substituted interpretation for proof, and then attack penalty process when the agency freelances.

WHY THIS DECISION IS IMPORTANT

Underhill does not excuse misconduct. It enforces the rule of law in the enforcement process. Florida’s ethics statutes carry reputational, financial, and career-ending consequences. That is precisely why courts insist on strict construction, clear-and-convincing proof, and disciplined adherence to administrative procedure.

For public officials, agencies, vendors, and lobbyists, the “ethics” landscape is real and risky. For lawyers, Underhill is a useful citation when an agency stretches statutory text to reach a desired result or when it treats penalty enhancement as a policy choice untethered to the record.

If you are dealing with an ethics investigation, a referral issue involving government contracts, or an administrative proceeding with reputational exposure, this is the kind of case that should shape the strategy early—before the record is locked and before penalties are decided in a closed meeting with imprecise reasoning.