You are here
A Florida Legislative Committee Calls for the Suspension of the Palm Beach County EC
Thursday, November 7th, 2013
Robert Wechsler
Toward the end of a
video of the November 4 meeting of the Florida
Joint Legislative Auditing Committee, the committee vice-chair
says that the testimony he heard was very "troubling." I felt the
same way about the meeting as a whole, but for completely different reasons. What occurred at this meeting is as troubling as anything I have seen in
seven years of following local government ethics matters nationwide.
From about 20 minutes into the video, the meeting is supposed to be focused on the audit report on the Palm Beach County EC, which I wrote about yesterday. A member of the office drafting the report summarized the report, and then the executive director of the EC effectively summarized the EC's response to the report. The responsible thing for the committee to do was to discuss the report's conclusions and the EC's acceptance and questioning of the report's recommendations. No such discussion occurred.
Two more people spoke, both of them lawyers representing clients who had been respondents in proceedings before the Palm Beach County EC. No one was asked to respond to what they said, and very few questions were directed to the speakers.
An Allegation of Constitutional Bias
The first lawyer, Roma Theus, alleged that the EC had erased a sentence in the audio transcript of an EC hearing that showed what he considered serious, unconstitutional bias toward his client on the part of one of the EC members sitting in judgment. That sentence was something like "I'm sick and tired of millionaires and billionaires fighting with each other and bringing their fights to the Commission." According to Mr. Theus, this showed discrimination against rich people. And presumably to hide this discrimination from the public, the EC erased the sentence from the transcript. He took the audio transcript to an expert, who said the sentence had been erased, and accused the EC of a felony.
I have three problems with this. One, is there a constitutional right based on discrimination against rich people? Potential jurors are certainly rejected by lawyers because the lawyers think they might not be sympathetic to their rich clients. But has a judge or quasi-judicial official ever been forced to withdraw from a matter due to bias against rich people in general?
Second, the quote shows absolutely no bias against the lawyer's client. The EC member said that he's tired of rich people fighting with each other before the EC. He was referring to both the complainant and the respondent. He was not taking sides.
What the Fight Was About
What the lawyer did not tell the Auditing Committee (unless I missed it) was what the particular fight was all about. I found the best description of the fight in an article in the Dressage News. The article begins, "The organizer of Palm Beach horse shows is seeking to reopen a government ethics investigation of the mayor of Wellington and a financial backer." Who is this financial backer, besides Mr. Theus's client? She is "a Wellington resident who opposes elements of the Palm Beach International Equestrian Center." Some people want to renovate the center as an equestrian center, and others want to build "a condominium hotel and a boutique retail plaza" there.
In other words, this is a fight between rich people, just as the EC member said. And I would guess that if you lived in Palm Beach, you too might very well be sick of rich people using government resources to fight over equestrian centers and upmarket developments. In short, the EC member was unprofessionally stating what most people in the room were probably thinking. It is primarily lawyers, who live off rich people's fights, who object to such sentiments. This is not, by any stretch of the imagination, a constitutional issue.
The Auditing Committee's Unquestioning Approach
The third problem is equally troubling. Later in the lawyer's presentation, which was far longer than the auditor's and the executive director's, he said that this wasn't the only show of bias against rich people. In fact, there were others that remained on the audio transcript. In other words, by erasing the one sentence and committing a felony, the EC had in no way hidden the biases of its members against rich people. Then what could have been its motive in doing something so heinous?
The page on which the auditing committee's own video transcript appears points to a more likely reason for the lost sentence. The page has a notice below the video box, "Due to audio difficulties in the room, we are not able to archive the first 6 minutes of this meeting." Is anyone accusing the auditing committee of hiding unconstitutional behavior?
I think the lawyer's argument is ridiculous and full of holes. But it is worth noting that not one member of the Legislative Auditing Committee even asked a question about it. They didn't ask what the ethics proceeding was about, whether bias against rich people is a constitutional issue, why a respondent objected to someone equally biased against both sides of a matter, or why the EC would have erased one sign of bias, but not others.
And not one of them objected to the proposal to report the supposed erasure to the Attorney General's office for a criminal investigation. And not one of them objected to the proposal to draft a letter telling the Palm Beach County Commission to suspend the EC based, in large part, on this heinous constitutional infringement of a respondent's rights and the erasure of a sentence in an audio transcript.
Separation of Roles
As I said in yesterday's post about the audit report, it is best if there is a separation of EC roles. But this separation is not common, primarily for financial reasons, nor is it constitutionally required.
And yet both lawyers castigated the Palm Beach County EC for its failure to fully separate its roles in ethics proceedings. The second lawyer, Mark Herron, representing the mayor of the city that Sen. Abruzzo represents, focused on this issue. He said that, most of all, there should be a "neutral finder of facts." What he means is that a body that finds probable cause cannot be expected to be unbiased in finding a violation. I disagree. See the first section of yesterday's blog post for my arguments.
The second lawyer represents respondents in ethics proceedings throughout Florida. In other words, he is not a neutral expert. And yet his statements were accepted without question by the auditing committee.
This second lawyer noted that this problem is not limited to the Palm Beach County EC. Therefore, it needs to be addressed not only by Palm Beach County, but also by state law. His goal is to have all ethics cases heard and decided by a "neutral factfinder," most likely an administrative law judge or retired judge. In yesterday's blog post, I wrote, "As we have witnessed in Louisiana, taking enforcement out of the hands of an independent EC and giving it to retired judges can greatly reduce the effectiveness of enforcement, and is seen correctly as an attempt by those under an EC's jurisdiction to weaken its authority."
It is inexcusable that the views of a former administrative law judge — the executive director of the Palm Beach County EC — on this topic were completely ignored by the auditing committee in favor of the views of a lawyer who was anything but a neutral fact provider.
Why What Occurred Is So Troubling
It is troubling that a state legislative committee would hear testimony about allegations that had not yet even been presented to the Palm Beach County Commission or to criminal authorities. It is troubling that they took it on themselves to take action on these allegations, rather than suggesting to the lawyers that they file formal complaints with the appropriate authorities.
It is troubling that a state legislative committee has asked for the suspension of a county EC and for a criminal investigation based on allegations of misconduct from a biased source which have not been proven and against which the EC has not had the opportunity to defend itself. It is troubling that a state legislative committee has called for suspension of a county EC based on insufficient separation of roles when its separation of roles and its independence are greater than the great majority of ECs in the United States, and when this aspect of the ethics program is neither illegal nor unconstitutional, nor has it been shown to have been prejudicial in even one proceeding.
It is troubling that the testimony as well as the comments of the state legislative committee's members was focused entirely on those subject to EC jurisdiction — officials, lobbyists, contributors — rather than on the public, whose interests are supposed to be protected by local ethics programs. The second lawyer, a lobbyist, talked about the problems lobbyists have dealing with different laws in different jurisdictions. Sen. Abruzzo talked about elected officials "not being subjected to things they shouldn't be subjected to." What about what the public is subjected to, with respect to officials who allow their personal interests and relationships with people before them to get in the way of doing what is in the public interest?
A good example of what the public is subjected to occurred in the meeting itself. It is troubling that a state legislative committee would permit the participation, not to mention leadership, of this meeting by a man who is publicly suspected to be out to get the Palm Beach County EC, partly due to its rejection of his aide as its executive director, and who admits to being an extremely close friend of the client of one of the witnesses he called to testify at the hearing (the other client is the mayor of a city he represents in the state legislature). Yes, the committee members could have done nothing but state their opinions, but this is only because the state legislature has determined that they cannot require a colleague to withdraw from participation.
Government ethics is all about relationships, and it is clear that Sen. Abruzzo has close relationships with people antagonistic to the Palm Beach County EC. It is true that he disclosed his relationship with the first lawyer's client, but he did not deal with this relationship responsibly, which would have meant not calling for this session, stepping down from the podium rather than participating in the session, and not having anything to do with any action to be taken on this issue, at least with respect to the Palm Beach County EC.
The fact that no member of the auditing committee questioned his participation in the matter shows that these legislators lack a deep understanding of government ethics. It is hard to imagine that these same people will reform local ethics programs in ways that are in the public interest.
Sen. Abruzzo said at the meeting that the EC was "being used as a political football" and "to hurt people." It appears to me that he and his colleagues are seeking to pull up the goalposts.
Whereas the EC member who spoke out against rich people showed no bias to either side of the immediate proceeding, Sen. Abruzzo shows a strong bias. The result is an appearance that he is acting for people under the EC's jurisdiction who are friends and political colleagues of his. It is one thing to be biased with respect to a policy matter. That is expected. But with respect to calling for the suspension and criminal investigation of an EC, bias that appears to be based on personal relationships is unacceptable. And I find it deeply disturbing that Sen. Abruzzo's colleagues did not see this or, if they saw it, chose to say nothing.
Florida has some of the best local ethics programs in the United States. As Mr. Herron said in his testimony, they are "popping up" around the state. Are elected officials misusing their offices to undermine these ethics programs that threaten those with whom they have important political and personal relationships, all in the name of improving the programs?
What Needs to Be Done
The first thing that needs to be done is for Sen. Abruzzo to announce that he will have nothing further to do with this entire matter, and that he should have withdrawn from participation in it months ago. Note that I do not suggest that a complaint be filed against him. It would be an important educational moment for officials across the state if he were to admit that he did not deal responsibly with his conflict situation.
State legislators need to recognize how what happened at the Auditing Committee appears to the public. The auditing committee should withdraw its letter to the County Commission and its complaint to the Attorney General, and let the audit report speak for itself. Legislators should make public any input they have had from local officials regarding local ethics programs, and discuss what the appropriate role is for state involvement in local ethics program. In doing this, they should start out by openly recognizing that it is the weakness of the state ethics commission (caused solely by the state government) that has led to the formation and improvement of local ethics programs across the state.
Robert Wechsler
Director of Research-Retired, City Ethics
---
From about 20 minutes into the video, the meeting is supposed to be focused on the audit report on the Palm Beach County EC, which I wrote about yesterday. A member of the office drafting the report summarized the report, and then the executive director of the EC effectively summarized the EC's response to the report. The responsible thing for the committee to do was to discuss the report's conclusions and the EC's acceptance and questioning of the report's recommendations. No such discussion occurred.
Two more people spoke, both of them lawyers representing clients who had been respondents in proceedings before the Palm Beach County EC. No one was asked to respond to what they said, and very few questions were directed to the speakers.
An Allegation of Constitutional Bias
The first lawyer, Roma Theus, alleged that the EC had erased a sentence in the audio transcript of an EC hearing that showed what he considered serious, unconstitutional bias toward his client on the part of one of the EC members sitting in judgment. That sentence was something like "I'm sick and tired of millionaires and billionaires fighting with each other and bringing their fights to the Commission." According to Mr. Theus, this showed discrimination against rich people. And presumably to hide this discrimination from the public, the EC erased the sentence from the transcript. He took the audio transcript to an expert, who said the sentence had been erased, and accused the EC of a felony.
I have three problems with this. One, is there a constitutional right based on discrimination against rich people? Potential jurors are certainly rejected by lawyers because the lawyers think they might not be sympathetic to their rich clients. But has a judge or quasi-judicial official ever been forced to withdraw from a matter due to bias against rich people in general?
Second, the quote shows absolutely no bias against the lawyer's client. The EC member said that he's tired of rich people fighting with each other before the EC. He was referring to both the complainant and the respondent. He was not taking sides.
What the Fight Was About
What the lawyer did not tell the Auditing Committee (unless I missed it) was what the particular fight was all about. I found the best description of the fight in an article in the Dressage News. The article begins, "The organizer of Palm Beach horse shows is seeking to reopen a government ethics investigation of the mayor of Wellington and a financial backer." Who is this financial backer, besides Mr. Theus's client? She is "a Wellington resident who opposes elements of the Palm Beach International Equestrian Center." Some people want to renovate the center as an equestrian center, and others want to build "a condominium hotel and a boutique retail plaza" there.
In other words, this is a fight between rich people, just as the EC member said. And I would guess that if you lived in Palm Beach, you too might very well be sick of rich people using government resources to fight over equestrian centers and upmarket developments. In short, the EC member was unprofessionally stating what most people in the room were probably thinking. It is primarily lawyers, who live off rich people's fights, who object to such sentiments. This is not, by any stretch of the imagination, a constitutional issue.
The Auditing Committee's Unquestioning Approach
The third problem is equally troubling. Later in the lawyer's presentation, which was far longer than the auditor's and the executive director's, he said that this wasn't the only show of bias against rich people. In fact, there were others that remained on the audio transcript. In other words, by erasing the one sentence and committing a felony, the EC had in no way hidden the biases of its members against rich people. Then what could have been its motive in doing something so heinous?
The page on which the auditing committee's own video transcript appears points to a more likely reason for the lost sentence. The page has a notice below the video box, "Due to audio difficulties in the room, we are not able to archive the first 6 minutes of this meeting." Is anyone accusing the auditing committee of hiding unconstitutional behavior?
I think the lawyer's argument is ridiculous and full of holes. But it is worth noting that not one member of the Legislative Auditing Committee even asked a question about it. They didn't ask what the ethics proceeding was about, whether bias against rich people is a constitutional issue, why a respondent objected to someone equally biased against both sides of a matter, or why the EC would have erased one sign of bias, but not others.
And not one of them objected to the proposal to report the supposed erasure to the Attorney General's office for a criminal investigation. And not one of them objected to the proposal to draft a letter telling the Palm Beach County Commission to suspend the EC based, in large part, on this heinous constitutional infringement of a respondent's rights and the erasure of a sentence in an audio transcript.
Separation of Roles
As I said in yesterday's post about the audit report, it is best if there is a separation of EC roles. But this separation is not common, primarily for financial reasons, nor is it constitutionally required.
And yet both lawyers castigated the Palm Beach County EC for its failure to fully separate its roles in ethics proceedings. The second lawyer, Mark Herron, representing the mayor of the city that Sen. Abruzzo represents, focused on this issue. He said that, most of all, there should be a "neutral finder of facts." What he means is that a body that finds probable cause cannot be expected to be unbiased in finding a violation. I disagree. See the first section of yesterday's blog post for my arguments.
The second lawyer represents respondents in ethics proceedings throughout Florida. In other words, he is not a neutral expert. And yet his statements were accepted without question by the auditing committee.
This second lawyer noted that this problem is not limited to the Palm Beach County EC. Therefore, it needs to be addressed not only by Palm Beach County, but also by state law. His goal is to have all ethics cases heard and decided by a "neutral factfinder," most likely an administrative law judge or retired judge. In yesterday's blog post, I wrote, "As we have witnessed in Louisiana, taking enforcement out of the hands of an independent EC and giving it to retired judges can greatly reduce the effectiveness of enforcement, and is seen correctly as an attempt by those under an EC's jurisdiction to weaken its authority."
It is inexcusable that the views of a former administrative law judge — the executive director of the Palm Beach County EC — on this topic were completely ignored by the auditing committee in favor of the views of a lawyer who was anything but a neutral fact provider.
Why What Occurred Is So Troubling
It is troubling that a state legislative committee would hear testimony about allegations that had not yet even been presented to the Palm Beach County Commission or to criminal authorities. It is troubling that they took it on themselves to take action on these allegations, rather than suggesting to the lawyers that they file formal complaints with the appropriate authorities.
It is troubling that a state legislative committee has asked for the suspension of a county EC and for a criminal investigation based on allegations of misconduct from a biased source which have not been proven and against which the EC has not had the opportunity to defend itself. It is troubling that a state legislative committee has called for suspension of a county EC based on insufficient separation of roles when its separation of roles and its independence are greater than the great majority of ECs in the United States, and when this aspect of the ethics program is neither illegal nor unconstitutional, nor has it been shown to have been prejudicial in even one proceeding.
It is troubling that the testimony as well as the comments of the state legislative committee's members was focused entirely on those subject to EC jurisdiction — officials, lobbyists, contributors — rather than on the public, whose interests are supposed to be protected by local ethics programs. The second lawyer, a lobbyist, talked about the problems lobbyists have dealing with different laws in different jurisdictions. Sen. Abruzzo talked about elected officials "not being subjected to things they shouldn't be subjected to." What about what the public is subjected to, with respect to officials who allow their personal interests and relationships with people before them to get in the way of doing what is in the public interest?
A good example of what the public is subjected to occurred in the meeting itself. It is troubling that a state legislative committee would permit the participation, not to mention leadership, of this meeting by a man who is publicly suspected to be out to get the Palm Beach County EC, partly due to its rejection of his aide as its executive director, and who admits to being an extremely close friend of the client of one of the witnesses he called to testify at the hearing (the other client is the mayor of a city he represents in the state legislature). Yes, the committee members could have done nothing but state their opinions, but this is only because the state legislature has determined that they cannot require a colleague to withdraw from participation.
Government ethics is all about relationships, and it is clear that Sen. Abruzzo has close relationships with people antagonistic to the Palm Beach County EC. It is true that he disclosed his relationship with the first lawyer's client, but he did not deal with this relationship responsibly, which would have meant not calling for this session, stepping down from the podium rather than participating in the session, and not having anything to do with any action to be taken on this issue, at least with respect to the Palm Beach County EC.
The fact that no member of the auditing committee questioned his participation in the matter shows that these legislators lack a deep understanding of government ethics. It is hard to imagine that these same people will reform local ethics programs in ways that are in the public interest.
Sen. Abruzzo said at the meeting that the EC was "being used as a political football" and "to hurt people." It appears to me that he and his colleagues are seeking to pull up the goalposts.
Whereas the EC member who spoke out against rich people showed no bias to either side of the immediate proceeding, Sen. Abruzzo shows a strong bias. The result is an appearance that he is acting for people under the EC's jurisdiction who are friends and political colleagues of his. It is one thing to be biased with respect to a policy matter. That is expected. But with respect to calling for the suspension and criminal investigation of an EC, bias that appears to be based on personal relationships is unacceptable. And I find it deeply disturbing that Sen. Abruzzo's colleagues did not see this or, if they saw it, chose to say nothing.
Florida has some of the best local ethics programs in the United States. As Mr. Herron said in his testimony, they are "popping up" around the state. Are elected officials misusing their offices to undermine these ethics programs that threaten those with whom they have important political and personal relationships, all in the name of improving the programs?
What Needs to Be Done
The first thing that needs to be done is for Sen. Abruzzo to announce that he will have nothing further to do with this entire matter, and that he should have withdrawn from participation in it months ago. Note that I do not suggest that a complaint be filed against him. It would be an important educational moment for officials across the state if he were to admit that he did not deal responsibly with his conflict situation.
State legislators need to recognize how what happened at the Auditing Committee appears to the public. The auditing committee should withdraw its letter to the County Commission and its complaint to the Attorney General, and let the audit report speak for itself. Legislators should make public any input they have had from local officials regarding local ethics programs, and discuss what the appropriate role is for state involvement in local ethics program. In doing this, they should start out by openly recognizing that it is the weakness of the state ethics commission (caused solely by the state government) that has led to the formation and improvement of local ethics programs across the state.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Story Topics:
- Robert Wechsler's blog
- Log in or register to post comments
