A New Government Ethics Report from a New Florida Organization
In recent years, Florida's elected officials have shown a great deal
of leadership in the field of unethical and criminal misconduct. The
state has a weak state ethics commission, which has jurisdiction
over local officials, and until recently only one good local
government ethics program, in Miami/Dade County (Jacksonville and
Palm Beach County joined this list with ethics reform last year).
The major voices in government ethics in Florida have, sadly, been
grand juries.<br>
<br>
The need for a good government group focused on government ethics
has recently been filled by <a href="http://www.integrityfl.org/" target="”_blank”">Integrity
Florida</a>, a nonpartisan nonprofit headed by Dan Krassner, a former
public relations professional and campaign adviser, who has been
Chief Strategy and Communications Officer for the Florida Chamber of
Commerce and Vice President of Communications at Florida TaxWatch.<br>
<br>
Integrity Florida's research director, Ben Wilcox, is a former head
of Common Cause Florida. Another founder, Martin Rogol, was the head
of the Palm Beach County Ethics Initiative, which was so instrumental in that county's reform effort. And the board also
includes a former editorial page editor, a former mayor, and a Tea
Party leader.<br>
<br>
Integrity Florida recently published <a href="http://library.constantcontact.com/doc208/1109675691933/doc/atg1ugFwTWL…; target="”_blank”">an
undated report</a>, which makes useful recommendations for ethics
reform at the state level. Phil Claypool, former director of the
state ethics commission, contributed to the report. Here is another
report that, while everything in it is of value, fails to create a
vision of the goal: an independent, comprehensive government
ethics program. Its recommendations are piecemeal reforms focused on
ending corruption rather than on creating a healthy ethics
environment through training, advice, and ongoing discussion.<br>
<br>
<b>Featured Recommendations</b><br>
The report's featured recommendations are:<ul>
1. Allow the state ethics commission to self-initiate
investigations.<br>
2. Establish a hotline.<br>
3. Apply the ethics code to all who touch public money, including
vendors.<br>
4. Require top officials, including local elected officials, to
disclose their major stock, property, and business transactions.<br>
5. Require financial disclosure forms to be made available online in
a searchable, downloadable format.</ul>
These are all excellent recommendations. The first two (especially
with a requirement to report ethical misconduct, which should be
added) work together to create an ethics environment where no one
believes he can get away with misconduct due to government
employees' fear of retaliation. The fifth recommendation brings
financial disclosure into the information age.<br>
<br>
The third and fourth recommendations are unusual, but desirable.
Everyone who is involved with government, whether it be through
contracts, permits, grants, or consulting, should be trained in
government ethics, encouraged to seek advice about conflict situations,
required to disclose relationships, gifts, and the like, and subject to ethics enforcement. If everyone participates in an ethics
program, it is less likely that misconduct will occur.<br>
<br>
Similarly, disclosing significant financial transactions keeps top
officials involved in the ethics program on a regular basis, and
provides useful information to the ethics commission, the public,
and officials' colleagues, so that it is more likely that top
officials will handle their conflicts responsibly.<br>
<br>
<b>Additional Recommendations</b><br>
Integrity Florida made several other recommendations in its report:<ul>
1. Raise the standard for awarding attorney fees against
complainants.<br>
2. Change the standard of proof from "clear and convincing evidence"
to a "preponderance of the evidence."<br>
3. Require 20 hours of ethics training for elected officials, and
less training for lower-level officials, government vendors, and
lobbyists.<br>
4. Increase the top ethics penalty from $10,000 to $25,000.<br>
5. Improve the collections process for ethics fines.<br>
6. Post all core ethics commission documents into an online,
searchable database.<br>
7. Audit a random sample of financial disclosure forms.</ul>
These too are all excellent recommendations. Complainants should pay
a respondent's attorney fees only under exceptional circumstances.
Otherwise, few people will be willing to file a complaint unless
they are absolutely certain about all the facts, that is, only after
they have already done their own investigation.<br>
<br>
A "clear and convincing" standard of proof is very difficult for an
ethics commission, with its limited resources. As Integrity Florida
says, this is often treated as a criminal "beyond a reasonable
doubt" standard, even though the penalties are small and the
officials' obligations to the public are far higher than an ordinary criminal
defendant's.<br>
<br>
Ethics commissions should lead the way with respect to transparency, which is, after all, a principal area of government ethics. Ethics training should be required (although 20 hours seems a lot). Uncollected fines undermine the public's trust in officials and the ethics program. And officials should know there is a chance their disclosure form will be audited.<br>
<br>
<b>Why Not an Independent, Comprehensive Ethics Program?</b><br>
Although this is an excellent report as far as it goes, and it's
great to have Integrity Florida focusing on government ethics
issues, I hope it will consider taking a different approach to
government ethics. I hope it will not merely make recommendations,
but rather explain what an independent, comprehensive ethics program
looks like and what changes are needed to get there (in order of
priority, and with consideration of which provisions are interdependent, such as EC initiative and a hotline). Then it should try to get officials to explain why they
reject each aspect of an ethics program, for example, why they
refuse to allow the ethics commission to be independent from those
over whom they have jurisdiction, even though this means conflicts
of interest at the heart of a conflict of interest program.<br>
<br>
Integrity Florida suggests that, to prevent the ethics commission
from using the power to initiate complaints in order to engage in politicized "witch hunts," the EC could be required to have
a supermajority in favor of investigation, enabling one party to
block the investigation. In fact, the best way to prevent partisan "witch hunts" is
not to have a bipartisan EC appointed by politicians, but rather a
nonpartisan EC appointed by good government and other civic
organizations. No EC member should be seen by the public as
representing either major party, and certainly not any official.<br>
<br>
<b>Crime and Integrity Are Not Integral to Government Ethics</b><br>
Another thing I would like to see from Integrity Florida is less
emphasis on criminal misconduct when it is making recommendations
regarding ethical misconduct. The fact that Florida has had so many
of its state and local officials convicted of crimes certainly
captures attention, but it also makes people feel it's hopeless to
improve a government ethics program that has nothing to do with
criminal misconduct. How, people feel, will more training and
disclosure prevent criminal misconduct?<br>
<br>
If it wants to talk about crime, Integrity Florida should connect all the
dots, explaining (1) how important it is to reducing public crime to improve the state's ethics
environment and (2) that this cannot be done by the criminal justice
system, because it lacks both training and advice. Advice is the big
thing missing from this report, and yet it is the most important
part of a government ethics program. It is also hard to draw a clear line between ethics advice and crime.<br>
<br>
Like the emphasis on criminal corruption, the use of the word "Integrity" is
problematic. It implies that the principal issue is character. While character
is a serious problem, it is not part of the solution. It is not even
part of a government ethics program. Government ethics cannot deal
with character or motives. It can only deal with conduct. It can
provide guidance that will enable the greatest possible number of
officials to handle their conflicts responsibly, and to report the
irresponsible handling of conflicts by their colleagues. It can help
increase the discussion of conflict situations formally and
informally. It can enforce ethics laws and undermine the confidence
that many officials have that they can get away with ethics
violations. But it can do nothing to change the character of
officials. Nor is this necessary.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
203-859-1959