Intimidation as an Ethics Violation

According to an article in the Orlando Sentinel 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.

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

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.

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.

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.

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.

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.

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.

Non-Financial Benefits
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.

Intimidation as an Element of Ethical Misconduct
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.

Intimidation as Ethical Misconduct
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.

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.

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.

Robert Wechsler
Director of Research-Retired, City Ethics

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