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Intimidation as an Ethics Violation

According to <a href="http://articles.orlandosentinel.com/2012-09-12/news/os-malcom-thompson-…; target="”_blank”">an
article in the Orlando <i>Sentinel</i></a> last week, the Florida
Commission on Ethics found probable cause that the Osceola County
Clerk of the Court "[used] his position to intimidate [his office's]
employees in order to enhance his personal and political power."
This raises the issue of whether intimidation can be considered an
ethics violation.<br>
<br>

The provision under which probable cause was found is Florida
Statutes §112.313(6) on Misuse of Public Position:<blockquote>

No public officer, employee of an agency, or local government
attorney shall corruptly use or attempt to use his or her official
position or any property or resource which may be within his or her
trust, or perform his or her official duties, to secure a special
privilege, benefit, or exemption for himself, herself, or others.</blockquote>

This provision is a combination of a basic conflict provision
(misuse of position to help oneself and others with whom one has a
special relationship, personal or business) and a preferential
treatment provision (using one's position to give special privileges
or benefits to others). The word "corruptly," as defined in the
state ethics code, which applies to local officials, adds the
requirement that there be "wrongful intent." Since intent is not
normally an element of an ethics violation, I won't consider it in
this post.<br>
<br>
The incident involved alleged intimidation toward women employees,
one of whom had reported an incident to the authorities, an alleged assault by the
clerk against an employee (see the attached
investigation report; see below). In applying the facts to the
elements of the provision, I will assume that the intimidation did
occur.<br>
<br>
The intimidation clearly involved the use of the clerk's position.
If the women had not worked for the clerk, they would simply have
walked out on him. He would have had no power or authority over them
to allow him to intimidate them.<br>
<br>
However, it is not as clear that he used his official position in
this manner in order to secure a special benefit for himself. The
criminal investigation had begun, and the women most likely couldn't stop it.
The clerk was angry that one of the women had reported the assault
incident (in her role as human resources director), and that another of the women, the victim, had talked with a criminal investigator the day before. He
apparently wanted the investigation to end, but it's not clear that they could benefit the
clerk by affecting the investigation (perhaps the victim could change her story). Therefore, it is not clear to
me that any benefit to the clerk was involved. Instead, the issue
was retribution, making the situation a whistleblower situation
rather than a conflict situation.<br>
<br>
Let's assume that the situation was a bit different, that the clerk had heard that one or more of
his employees were talking about reporting the assault incident, and
that he confronted them before the report was made. Then there would
have been a clear benefit to be secured through intimidation: 
prevention of charges being brought against him. In this case, the
matter would clearly fit the Misuse of Public Position provision,
even though it is unlikely that this sort of misconduct was
contemplated in drafting the language.<br>
<br>
<b>Non-Financial Benefits</b><br>
This is a good example of the sort of non-financial benefit too many
ethics codes exclude from an ethics commission's jurisdiction. There
would be an indefinite financial benefit involved — the loss of
the clerk's position (and the clerk was, in fact, suspended by the
governor, and reinstated only when he was found not guilty by a
jury). But since most conflict provisions speak in terms of
"interests" rather than "benefits," it is likely that the typical ethics
commission would not consider the clerk's interest in not being
charged with assault a financial interest. Yet another reason why
"benefit" language is better than "interest" language.<br>
<br>
<b>Intimidation as an Element of Ethical Misconduct</b><br>
The fact is that intimidation is a major element of much ethical
misconduct. Along with loyalty, it is one of the great enablers of
ethical misconduct. Intimidation prevents many government employees
from reporting misconduct. Intimidation makes it so that only the
courageous or the retired report or even speak openly about ethical
misconduct (and even the courageous and retired may worry about retaliation against their family members and friends). Intimidation is also an important element of cover-ups.
Intimidation characterizes a poor ethics environment. Nepotism and
cronyism support intimidation by making others feel helpless and
outnumbered.<br>
<br>
<b>Intimidation as Ethical Misconduct</b><br>
In fact, intimidation is worse than any financial misconduct. An
official who gives her brother a contract is costing the taxpayers
money and undermining the public trust, but an official who
intimidates employees undermines the public trust, costs the
taxpayer money through poor morale and the loss of good employees,
and causes serious emotional harm to people, which is worse than
loss of money. Intimidation also creates an atmosphere of secrecy
that hampers work and means less transparency across the board, hampering public participation and making it easier to engage in all sorts of misconduct.<br>
<br>
Therefore, it is important that at least some intimidation be
considered ethical misconduct, so that it can be dealt with by an
ethics program. Harassment and intimidation for political rather
than personal purposes should be dealt with as conduct problems by a
legislative body or the administration. But intimidation that is
related to personal benefits, especially when it relates to other
ethical misconduct, whether the intimidation is of subordinates,
colleagues, or citizens, should be dealt with by an ethics program
both after the fact (e.g., whistleblower protection, protection from SLAPP
suits) and before the fact, as with attempts to prevent employees
from reporting or providing testimony about misconduct.<br>
<br>
Intimidation should not be shoe-horned into an ethics provision. It
should be taken into account when drafting an ethics code. Intimidation can be dealt with through the conflict provision, through an expansion of whistleblower protection to include intimidation before rather than only after a report or testimony about misconduct, or through a separate provision.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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