An Appreciative Look at the Draft Broward County Ethics Code for County Commissioners

Anonymous

Thu, 05/06/2010 - 05:07

County Related

Update: May 12, 2010 (see below) 
 
According to <a href="http://www.sun-sentinel.com/fl-ethics-reform-broward-20100504,0,4517356…; target="”_blank”">an
article in Tuesday's Sun-Sentinel</a>, Broward County (FL) Commissioner Ilene
Lieberman feels that the <a href="http://www.broward.org/EthicsCommission/Documents/CodeofEthics2010%20-%…; target="”_blank”">ethics
code written by a special commission on ethics </a>(most of whose
members were selected by the commissioners individually) was "drafted
without proper research so as to avoid absurd and unintended
consequences.'' As the incoming president of the Florida Association of
Counties, this accusation carries some weight. Other commissioners seem
to have the same concern, although their examples show no absurdities in
the draft code. Here's an example of an example: 
<ul>

What if a commissioner, whose husband died last year, meets someone new
on an online dating site, starts a relationship, but decides not to
marry him. The new ethics code that regulates lobbying activities of
spouses and domestic partners wouldn't apply to her new beau, correct?
[By the way, the county attorney answered that hypothetical, No. See my
<a href="http://www.cityethics.org/content/personal-ethics-vs-government-ethics&…; target="”_blank”">blog
post from yesterday</a> on that very issue.] 
</ul>
Another commissioner asked about who can file a complaint against a
commissioner, "It can be a homeless person? It can be a person who is
not well?'' The county attorney answered that question, Yes. Perhaps he
should have answered that people who are not well can vote and be
elected to office, and yet no one seems concerned. 
 
On Tuesday, the commissioners spent three hours raising concerns about the draft code (see <a href="http://weblogs.sun-sentinel.com/news/politics/broward/blog/2010/05/live…; target="”_blank”">live
coverage of the meeting</a> from the Sun-Sentinel site). So how bad is
the code, which applies only to county commissioners? Actually, not
bad at all, considering its limited goals (since the Florida ethics code
applies to local officials, local governments don't have to have an
all-purpose ethics code). 
 
Problems with the Draft Code 
The biggest problem with the code is that it is too bald a response to
specific problems that have recently occurred in Broward County with
respect to contracts and to relationships with lobbyists. For example,
there have been problems with charitable solicitation (see <a href="http://www.cityethics.org/node/701" target="”_blank”">my blog post</a> from last
year), resulting in an unusual provision on charitable solicitation. 
 
It's good to learn from past mistakes and to use them to draft creative
solutions, but it is not a best practice to too closely tailor ethics
codes to problems in a particular jurisdiction. Broward County
residents need only look at their local newspaper to find mistakes in
neighboring jurisdictions they can learn from just as well. In short, the problem with the code is not what's in it, but what's been left out. 
 
Description of Code Provisions 
The draft code is pretty simple and succinct, and yet it includes
ethics provisions, disclosure provisions, administration provisions,
and a training provision. 
 
It starts with a Standards of Conduct section, which includes
provisions on gifts, outside employment, lobbying, honest services,
charitable and campaign solicitation, procurement selection
committees, and financial disclosure. The standards of conduct are
supplemented by state ethics law, as well as the county's own lobbyist
registration act and procurement code. 
 
The draft code also has an Enforcement section, which includes the
creation of an Inspector General's office, a hearing officer, and a
selection-oversight committee completely independent of the board of
commissioners. And there is a short Training section, with some pretty strenuous requirements, assuming there are some good continuing education courses around (the county isn't offering any, it appears). 
 
Commissioners cannot accept gifts from lobbyists, vendors, or
contractors of the county, and must report other gifts. They cannot
lobby any local government entities in the county (I like the language
at the end of this provision: "This form of employment and activity is
deemed to be in substantial conflict with the proper discharge of a
commissioner's duties in the public interest."). All other employment
must be reported quarterly. Family members and staff cannot lobby
before the board or other local governments in the county. 
 
Both lobbyists and commissioners must quickly disclose their
communications and meetings, to be placed in a searchable online
database (along with commissioner's annual disclosure forms, required
by the state). 
 
Commissioners cannot be on or even participate or interfere with county
procurement committees, at least until after a selection process has
been completed (that is, they can complain after the fact, but no more). 
 
State financial disclosure forms must be filed with the county and put online.
This is something every local government should do. In addition, when
commissioners solicit for other candidates, they must make disclosure,
an unusual, but good requirement. 
 
Problematic Provisions 
The only problematic ethics provisions are (i) the honest services
provision, which simply refers to the <a href="http://www.cityethics.org/content/telling-local-government-officials-ab…; target="”_blank”">federal
and state law of honest services</a>, but does not give any indication
whether the Inspector General will be investigating the deprivaton of
honest services or turning such cases over to the authorities (which it
could do anyway); and (ii) the charitable solicitation provision, which
has the only truly vague language (a general accusation made by some
commissioners): solicitation is permissible "so long as there is
no quid pro quo or other special consideration, including any direct or
indirect benefit between the parties to the solicitation." In addition,
all charitable solicitations must be disclosed, and staff and resources
cannot be employed in such solicitation, unless for county-sponsored
charities or events. 
 
It is true that the Inspector General can investigate whenever he or
she feels that good cause exists, and this clearly worries the
commissioners. But what is the alternative? The commissioners appear to
want sworn complaints, but that would make it highly unlikely that
those in the know — county employees — would give the IG valuable tips.
Haven't the commissioners heard of ethics hotlines? This code would
allow such a hotline to be set up, but does not require it, as many
codes do. An IG, like any investigatory authority, depends on anonymous
tips. That is one reason its investigations are kept confidential. 
 
The most interesting aspect of the commissioners' reaction to the draft
code is that, as much as they find it problematic, they want it to be
applied not only to county employees, but also to other elected
officials in the county, including both those in cities and towns, and
state legislators. 
 
More or Less Public Trust? 
The most serious criticism is that the new setup will not increase
public trust in government. "This has such a gotcha approach that in
fact the opposite is going to happen. [It will be difficult] for you
not to mess up, no matter how hard you try to do it right." 
 
There are two different arguments here. Yes, the commissioners will
mess up. But since there is a de minimis provision, the usual small
mess-ups will not lead to any penalties. 
 
The more important issue is whether the creation of an IG will lead to
more or fewer scandals than Broward County has already had? There will
likely be more investigations, but if the commissioners know
enforcement is more likely, there should be many fewer instances of
serious misconduct. The public doesn't care too much about the small
mess-ups. 
 
If the commissioners truly care about doing things right and gaining
the public's trust under the new setup, they will keep the county
attorney's office (or, better, an independent ethics officer appointed
by the IG) very busy with questions about what to do and what not to
do. Just as they did at Tuesday's meeting. If you want to stay out of
trouble, it's not as hard as you think. You just have to accept that,
as in one question that was asked on Tuesday, you can't go on a cruise with a
lobbyist, even if she's really an old friend. 
 
The Keep-Your-Hand-Off Clause 
One thing in the code the commissioners clearly despise is a clause that
prevents them from amending the code in order to weaken it or remove
any of its provisions. This can only be done by citizen initiative.
This is an excellent way to ensure that commissioners do not vote for
something strong and then later find ways to weaken it. Already, some
commissioners are talking about weaknesses of the code and their desire
to strengthen it in ways that may, actually, weaken it, such as
requiring sworn complaints. It will be interesting to see how this
clause holds up to the cleverness and self-interest of elected
officials. 
 
Update: May 12, 2010 
County Commissioner Ilene Lieberman called me in response
to this blog post. She defended her statement that the ethics code for
county commissioners was "drafted
without proper research so as to avoid absurd and unintended
consequences.'' 
 
One thing she said is that the ethics commission went beyond the
authority given it by <a href="http://www.broward.org/Charter/Documents/Charter.pdf">Charter</a>
§11.08 by having provisions in the code that applied not only to
county commissioners, but also to their spouses and domestic partners.
Here is the relevant part of the charter provision: 
<ul>
There shall be a Broward County Ethics Commission whose sole purpose
shall be to establish a Code of Ethics for the Broward County
Commission. 
</ul>
I do not agree that this clearly states that the ethics code may apply
only to the commissioners, and not to their immediate families. The purpose of the code is to have commissioners deal responsibly with their conflicts, and it is common knowledge that officials have conflicts with respect to matters involving their spouses and domestic partners. 
 
Lieberman also said, as I understood it, that the code is softer on violators of campaign finance
provisions because it provides only for civil penalties, while state
law provides for criminal penalties and, she said, local ordinances
must be at least as strict as state statutes. She referred me to
Chapter 106 of the Florida Statutes, but this appears to have lower
civil fines (compare <a href="http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&…
Statutes 106.265</a> and <a href="http://www.broward.org/EthicsCommission/Documents/CodeofEthics2010%20-%…
code §1-19(d)(2)(a)(1)</a> (p.24)), and the ordinance allows for
incarceration up to 60 days (<a href="http://www.broward.org/EthicsCommission/Documents/CodeofEthics2010%20-%…;)
(note that one problem with the code is its numbering). 
 
In addition, I could find no state law that says that local campaign finance ordinances have to be as strict or stricter, in content or penalty, as state laws (<a href="http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&… is such a provision, however, for ethics codes</a>, but it does not apply to penalties). An expert in the field, in Florida, wrote that the rule is that local campaign finance ordinances "cannot authorize that which the state prohibits – or prohibit that which the state specifically authorizes." 
 
Lieberman also feels that there are first amendment free speech problems with
the Broward County ethics code, but she did not elaborate. I found no free speech
issues in this code. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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An Appreciative Look at the Draft Broward County Ethics Code for County Commissioners

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