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Thursday, 18 February 2016 09:34

FBI Asked to Investigate Commissioner Kiker Featured

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Commissioner Larry Kiker Commissioner Larry Kiker

 

 

Commissioner Larry Kiker, already under fire for failing to keep accurate logs of meetings as required by law, is now facing a potentially far more damaging inquiry – investigation by the FBI for alleged misfeasance or malfeasance in his handling of the proposed development on Fort Myers Beach, where Kiker served as Mayor before moving to his current position on the Lee County Commission.

And, perhaps not so coincidentally, some of the very people Kiker did not log as meeting with are also key players in the development including the chief Developer, Tom Torgerson and public relations counselor, Tina Matte, who is also registered as a lobbyist.

Kiker, in a Fort Myers News-Press article titled, "Lee Commissioner Kiker not playing by lobby log rules," admitted his actions were "not good" and that the legally required log items "should have been on there.”
He also told reporter Patricia Borns that "Now he is working on doing it correctly."

These omissions have led to demands for Kiker to undergo further scrutiny including a request for the same by the Lee County League of Women Voters.

When asked for explanations for the log omissions, Kiker offered the following reasons to the NewsPress: "administrative confusion, lack of training and different interpretations of the law." He also claimed that "the confusion was a mix-up with my social and business calendars.”

Matte, the lobbyist, when questioned about what her and Kiker's discussions entailed said "she didn't recall what those were about."

Just two weeks ago the Sun Bay Paper reported that Torgerson and his investors are buying up millions of dollars in real estate on Fort Myers Beach to facilitate his development. Most of what they seek will require approval from county, state and local officials, making the lack of logs “a serious matter” for an elected official, according to Joseph Centorino who heads the Miami-Dade Commission on Ethics and Public Trust.

While the outcome of this ongoing investigation over the nonexistent logs is still up in the air, a greater issue has now surfaced concerning the taking of commissions on a real estate sale for property to be used in the very development Kiker oversees in his capacity as a Lee County Commissioner.

In August of 2015 Lahaina Realty, a real estate brokerage firm owned by Kiker and his wife, Paula Kiker, sold the property known as Salty Crab on Fort Myers Beach to Torgerson. While the sale was handled, according to broker Paula Kiker, "by one of her agents – Bev Larson" – it was nevertheless brokered by a firm controlled by the Kikers.

This parcel of land, along with a similarly small piece also purchased by Torgerson's group that was formerly the paid parking lot for the Top of the Mast, is considered unusable for Torgerson’s development unless Crescent Beach Park -, a large connecting parcel - is also obtained by Torgerson so he can merge the two separated properties into a sufficiently large enough holding to make it usable for his plan.

There has been a firestorm of controversy and opposition by Beach residents centering on the proposed development. While density, seawalls and building height variances are all under scrutiny by taxpayers, the possibility that the park property – owned by the citizens of Lee County and currently used as a family beach recreational area and park – would be given to Torgerson as part of a “deal” is perhaps the most odious to residents bent on maintaining a low-key island ambiance for any development.

The fact that some of what Torgerson and his backers propose needs the approval of the Lee County Commissioners including Kiker who has also been a vocal supporter of the development from inception, underscores the perception that Kiker should recuse himself from any involvement in the project.

In a phone interview conducted on Wednesday of this week at approximately 11 AM, Kiker responded to the allegations of impropriety or conflict of interest.

"I have no knowledge of any investigation by law enforcement agencies into this issue. Generally if there were an investigation it would go to Tallahassee where there is a Ethics Committee as part of the State Legislature and if that happened I'd know about it and I haven't heard from them," he said.

When asked if a "legislative body' investigating a person who presides over public policy is akin to an internal affairs investigation by police, Kiker replied that the Lee County Sheriff "doesn't investigate ethics violations."
When asked if he was aware that the FBI has jurisdiction over elected official's actions, he replied, "I don't know."

As to the underlying allegations of conflict of interest or malfeasance, Kiker made a subsequent call to our reporting staff and said since we initially called he had checked with "legal counsel who told him he had to vote on any issues before him unless there is a conflict and that the test of that was whether his vote would insure a special private gain or detriment in which case he'd have to recuse himself."

It may be too late to simply take himself out of the decision making process. By failing to already recuse himself and publically make known his “interest” in the matter, including the real estate sales commissions that have inured to his benefit; the commissioner may already been seen as receiving the "special private gain," he was counseled to avoid.

Whatever the outcome, if the complaint received by this paper is credible, the FBI is currently taking a look at these issues and has been doing so for the past four weeks.
Below is a copy of the documents obtained by the Sun Bay Paper that was submitted to the FBI.

WHAT THE FBI HAS RECEIVED CONCERNING COMMISSIONER KIKER

Issue: Does Lee County Commissioner Larry Kiker's participation and action in facilitating the proposed Torgerson Properties downtown redevelopment plan (aka Grand Resorts) on Fort Myers Beach constitute malfeasance of office?

Points of Interest:

1) Larry Kiker is a Lee County Commissioner

2) Paula and Larry Kiker have owned Lahaina Realty located at 6035 Estero Blvd., Fort Myers Beach Florida 33931, since 2003.

3) Torgerson Properties is proposing a downtown redevelopment project on Fort Myers Beach called Grand Resorts. The beachfront plan includes four hotels lined with an esplanade of retail shops and restaurants, a half-mile seawall and boardwalk and parking garage.
Torgerson Properties purchased a stand-alone parking lot from Top O Mast north of Crescent Beach Park and the Salty Crab property south of Crescent Beach Park. Lee County is proposing to relinquish Crescent Beach Park for incorporation in the Grand Resorts development and there is speculation that a deal may have already been in the works between Commissioner Kiker and Torgerson to facilitate transfer of publicly owned Crescent Beach Park to Torgerson. Otherwise, why would Torgerson purchase a stand-alone parking lot if Torgerson did not have certainty that he would be able to secure Crescent Beach Park to connect with the Salty Crab property for incorporation in the downtown redevelopment plan?

4)Lahaina Realty was the selling agent in the real estate transaction for the Salty Crab property. The property sold for $3.2 million with commission to Lahaina Realty inuring to the economic benefit of Commissioner Kiker. (Exhibit 2)
5)Form 6 2012 Financial Disclosure for Lee County Commissioner Larry Kiker showing assets predominantly of real estate holdings including Palara, LLC. Form 6 documents Commissioner Kiker owning 50% interest in Palara LLC.

6 Florida Department of State Division of Corporations records identify Palara LLC as having the same principal address as Lahaina Realty, 6035 Estero Blvd Fort Myers Beach, FL 33931. Commissioner Kiker and wife Paula are listed as registered agents with title of MGRM of Palara LLC. Commissioner Kiker's involvement in the real estate transaction of the Salty Crab property and his action as Lee County Commissioner concerning Torgerson Properties redevelopment plans on Fort Myers Beach may constitute a breach of fiduciary obligation as an elected public official.

7)Media coverage documents Commissioner Kiker as championing the Grand Resorts development project.

Relevant Articles:

1) Fort Myers News Press, April 3, 2015
Fort Myers Beach Hotel Developer Pays 7.2 million
Minnesota-based Torgerson Properties spent $7.2 million Thursday to pick up another 3.3 acres for its hotel project just south of the Matanzas Pass Bridge on Fort Myers Beach.

2) Fort Myers News Press, December 5, 2015 Beach Sea Wall Gets Ambivalent Reaction:

During a meeting at Florida Southwestern State College Lee County Commissioner Larry Kiker explains how a sea wall benefits the development or redevelopment of coastal properties by allowing them to be at grade.
Kiker will also be leading the charge to help the development secure another change from the town: the sea wall itself.

“Sea walls are prohibited by our comprehensive plan in Policy 5-D-1,” confirmed Joanne Shamp, who’s served the town’s Local Planning Agency for many years.

3) Fort Myers News Press, December 12, 2015 Is Grand Resorts FMB Moving Too Fast:
Article highlighting residents concern with Grand Resorts being fast tracked.
Lee County Commissioner Frank Mann was quoted that, the project is becoming “airborne” faster than any development he’s ever seen.

“It’s a slap in the face to the people who are going to be affected by it,” Mann said of the proposed consultant. “Talk about telegraphing your punches. It says we don’t care about what the people say.”

Longtime Beach resident and former NewsPress Editor, Joe Workman is among the “scads” concerned about an official predisposition to approve the development without hearing from the public.

Resident Tracy Gore is another who thinks “more open government needs to happen. People are getting nervous as to what will be expected from our island. Many of us on the island wish to be part of the conversations,” she said in an October e-mail to county commissioners.

4) Fort Myers News Press, December 15, 2015 Grand Resorts Launches Public Education Campaign:
During a town hall meeting at the Chapel by the Sea on Fort Myers Beach, Torgerson Properties CEO Tom Torgerson announced agreements made with the project’s beachfront neighbors for the sea wall to extend beyond the Grand Resorts properties, across theirs, all the way past Lynn Hall Memorial Park.

All that’s needed now to start the sea wall application for state and federal permits are approvals from the town and county to begin the process.
The county will consider its approval at Tuesday’s Board of County Commissioner’s meeting.

Torgerson also announced two key property purchases that will allow the project to expand. One is John Richard’s Ocean Jewels property; the other, the Top O'Mast parking lot. The purchases bring the total development area of county, town and private properties to roughly 10 acres.

5) Fort Myers News Press, December 16, 2015
County Slows Down Fort Myers Beach Project for 'Angry' Public:
A walk-on item on Tuesday's Lee County Commission agenda so incensed Fort Myers Beach residents that the commissioner who placed it there motioned to suspend the action item until the development process for the Beach downtown has been clarified.

Kiker said it was his intention to defer the action item he had added to the agenda -- to greenlight county staff to explore the developer's request for county support in a land exchange rerouting Estero Boulevard, and a seawall application to federal and state agencies -- "until such time as staff and legal have a chance to talk to the town."
The late addition of the agenda item infuriated an already angry public. Beach attorney Bill Shenko called it "an eleventh-hour move on a project that has not had a single word from the public." Shenko said the talk on the street is that "the development is going too fast. It's a done deal."

The exact words were being murmured in the audience seats behind him, where residents waited their turn to speak.
In an email to Commissioner Frank Mann, Beach resident and business owner Tracey Gore protested, "This 'walk-on' item could have budgetary implications to the public and should be advertised per code and statute."

"It should not be a walk-on item," Ray Judah, a former Lee commissioner of 24 years who was unseated by Kiker, concurred in a phone call to The News-Press. "It should be an administrative item where the public has an opportunity to comment."

Some have suggested Kiker should step back from the project approval process because of the
August 2014 sale of the Salty Crab property to Grand Resorts, in which his wife's firm, Lahaina Realty, was a listing broker. Lahaina represented the seller in the $3.2 million deal, while Beach Realtor Joe Orlandini represented Grand Resorts.

"I checked with our attorney and there’s absolutely nothing wrong with it," Kiker said. But appearances, coupled with a lack of public inclusion, has escalated residents' fears.

Former Beach mayor Dennis Boback suggested a co-application with the developer for a sea wall that's prohibited in the county's comprehensive plan also gives the appearance of impropriety, at the least, and potentially puts the county at risk.

"The risk of co-application is it says you agree with it. If the application fails, the developer can potentially sue the county and town," Boback said.

Kiker countered the comprehensive plan and any variances to it "are the town's issue. County isn't participating in that." But the fact remains the sea wall is also at odds with the county's comprehensive plan, and Kiker has previously said the county would be co-applying for a variance to the town.

6) The Sun Bay Paper, December 17, 2015 Standing Room Only!
Torgerson Properties host open house meeting at Chapel by the Sea on Fort Myers Beach Presentation of concept drawings of Grand Resorts redevelopment plans.
Commissioner Larry Kiker attended and spoke at the meeting
The following Tuesday, the Board of County Commissioners had an item on their agenda that would have allowed County Staff to gather information regarding the Developers requests for the County to participate in a land exchange, as well as permit the County Manager to allow them to apply for a permit for a sea wall and boardwalk as well as FEMA modifications.

The item was ultimately deferred at the request of Commissioner Kiker, who had initially put it on the agenda. He explained it would be best to communicate with the Town Government of Fort Myers Beach more before they make any moves on the project.

7) The Sun Bay Paper, December 24, 2015
Editorial - Stop Overdeveloping: Political and Media Manipulations Underlies Process Excerpt from Carl Conley's editorial:
“When a large project like Torgerson development comes up for review by our elected officials behind the scenes deals are made and they are not altruistic. It is so hard to see the paper trail because one of the things our political class concentrates well is how to hide the money or launder it in such a way as to skirt the margins of the law.

Real estate offices get commissions for property sales that are made as part of the project and no one connects the dots".

8) Fort Myers News Press, January 4, 2016
Beach Walks Back Grand Resorts Sea Wall Resolution
Fort Myers Beach leaders took a step back Monday from giving their nod to Grand Resorts FMB to apply for sea wall permits with state and federal agencies.
“The town has to issue a letter to DEP that says the coastal project meets or does not meet the local LDC and comp plan,” Ralph Brookes, a Cape Coral land use attorney, explained the DEP permit application process by e-mail. “The town is supposed to be following up its comprehensive plan and land development code.”

At the end of the day, the council voted not against the resolution, but to table it indefinitely.

9) The Sun Bay Paper, January 7, 2016 The Sum of Its Parts:
The Properties and Prices behind the Grand Resorts Site
A compilation of Fort Myers Beach properties purchased by Torgerson Properties for the proposed Grand Resorts.

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