Florida League of Cities' Ethics Reform Proposals I - Preventing the Filing of Complaints

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Mon, 01/27/2014 - 06:40

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<a href="http://static.lobbytools.com/bills/2014/pdf/0606.pdf" target="”_blank”">Florida
Senate Bill 606</a> (attached; see below) is one of the worst ethics reform bills I have
ever read. But it is far worse than the words it consists of. What
makes it worse is that, with respect to laws that affect local officials, it is largely the work of the Florida League of Cities
(this was confirmed to me by representatives of both the League and
state senator Jeff Clemens, the bill's sponsor). It is work like
this that leads me to question whether local government associations
should be permitted to lobby on matters involving government ethics.
This issue will be dealt with in <a href="http://www.cityethics.org/content/florida-league-cities-ethics-reform-p…; target="”_blank”">the last of the blog posts related
to the bill</a>. 
 
Penalties on the Complainant 
It's hard to know where to start. So I'll start with the most insidious proposal — an additional penalty on complainants — because here
the League of Cities has shown a level of cleverness that I have not
seen elsewhere. Unfortunately, the League's cleverness has been employed to get
around a 1988 decision striking down the very same penalty on complainants, based on First Amendment free speech rights.

No member of the public thinks that the biggest ethics problem in
Florida, a state generally considered the most corrupt state in the
union (824 convicted officials from 1998-2007, and a lot more since and pending), is ethics complaints
with false statements in them or ethics complainants publicizing the
fact that they have filed their complaints. But every government
official who wants to undermine ethics enforcement knows that the
best way to do this — besides not allowing ethics commissions to
initiate investigations without a formal complaint — is to add the
threat of onerous costs on any complainant who may have negligently made a false
statement in her complaint. After all, every single one of us knows
this is something we ourselves might do, since we have limited
information, make mistakes, don't really understand an issue, depend
on what others tell us, etc. If I knew that I might have to pay
costs, attorney fees, and a fine, I would not file an ethics
complaint myself. 
 
But the League of Cities presents the matter differently. In its
press release supporting SB 606, the League wrote that the bill
"protects public officials from those who have an ax to grind and
file a false ethics complaint." Actually, the ethics code already
makes such a complainant liable for costs and reasonable attorney
fees, including costs and attorney fees spent in proving that the
complainant must pay costs and fees. This means that, as the law is
today, a complainant may already have to pay many thousands of
dollars. Here's the language already in the state ethics code:<blockquote>

112.317 Penalties.— 
If the commission determines that a person has filed a complaint
against a public officer or employee with a malicious intent to
injure the reputation of such officer or employee, which intent may
be shown by the filing of the complaint with knowledge that the
complaint contains one or more false allegations or with reckless
disregard for whether the complaint contains false allegations of
fact material to a violation of this part:, 
 
(a) The complainant is liable for costs and reasonable attorney fees
incurred in the defense of the person complained against, including
the costs and reasonable attorney fees incurred in proving
entitlement to and the amount of costs and fees.</blockquote>

An Additional Penalty 
What the League does not say in its press release is that it
believes this huge potential penalty is not enough to protect its
members from ax-wielding complainants (not to mention the merely pen-wielding ones). The League wants yet another
penalty on the books. The League's proposed language clarifies that
malicious intent can be determined merely by "reckless disregard"
for whether the complaint contains false allegations, and then adds a second penalty:<blockquote>

(b) If the commission further finds the complainant willfully
disclosed, or permitted to be disclosed, the existence or contents
of the complaint, or any document, action, or proceeding in
connection with a preliminary investigation of the commission,
before such complaint, document, action, or proceeding became a
public record as provided in this part, the commission shall impose
on the complainant a civil penalty of not less than $1,000 but not
more than $5,000.</blockquote>

Now, one might argue that if a complainant has made false
allegations and, on top of that, has actually disclosed these
allegations to the public, he's acting purely for political purposes
and deserves what he gets. But there are two problems with this. One
is that it doesn't matter what the complainant's purposes are. Many
valuable ethics complaints are filed for political purposes, even by
people with an ax to grind. After all, besides journalists, who
other than government officials and employees, and political
operatives and junkies, closely follow officials' actions? Isn't
competition between political parties supposed to be in the public
interest, especially when it means the disclosure of ethical
misconduct? Isn't it a good thing that they prevent ethical
misconduct by making their opponents worry about having an ethics
complaint filed against them? In short, this sort of ax grinding is
a boon to ethical conduct in government and, therefore, in the
public interest. 
 
The Constitutionality of Penalizing Disclosure of Ethics Allegations 
The second problem with the League of Cities' position is that it is
unconstitutional to prevent individuals from disclosing their ethics
allegations. <a href="http://www.leagle.com/decision/19881413723FSupp690_11322" target="”_blank”">Doe

v. Gonzales</a>, 723 F. Supp. 690 (S.D.Fla. 1988) found the
following state provision unconstitutional:<blockquote>

Any person who willfully discloses, or permits to be disclosed, his
intention to file a complaint, the existence or contents of a
complaint which has been filed with the Commission, or any document,
action or proceeding in connection with a confidential preliminary
investigation of the Commission, before such complaint, document,
action, or proceeding becomes a public record as provided herein is
guilty of a misdemeanor of the first degree, punishable as provided
in s. 775.082 or s. 775.083.</blockquote>

This language is very similar to the newly proposed subparagraph
(b). Therefore, when first considering it, I assumed that it too
would be unconstitutional. But when I spoke to the League's
legislative director (popularly known as its lobbyist),
he acknowledged that the prior language had been declared
unconstitutional, but said that the League had "nuanced the language
differently." 
 
At first I didn't see the "nuance." The main difference seemed to be
that instead of a misdemeanor, there is a civil penalty. This
couldn't make a difference with respect to the First Amendment,
could it? 
 
And then it came to me. The language is essentially the same. It's
the context that is different. Especially the word "and" between (a)
and (b). The civil penalty can be imposed only if the complainant
both discloses the complaint and the complainant made false
allegations with malicious intent. In other words, the extra penalty
is not for disclosing a complaint, it's for disclosing a maliciously
false complaint, which is defamation. And defamation is not
protected by the First Amendment. That is a clever way to get around
Doe v. Gonzales. I applaud the League's legal counsel for thinking
this up. 
 
Penalties on Complainants Are Intended to Reduce the Number of
Complaints 
But this still leaves the question, Why is it so important to the
League of Cities to add a large penalty to one that is already
pretty large? Is their problem that the current law hasn't
sufficiently put a stop to the filing of ethics complaints,
especially with respect to local officials? In 2013, 210 complaints
were filed with the state EC, and nearly two-thirds of them were
filed against local government officials. No one knows how many
would have been filed without the current penalties on complainants. 
 
What is important about the new penalty is that it is not on the
filing of complaints, but rather on their disclosure. If the League
can't put a stop to complaints from being filed against its members,
it can at least do its best to prevent the public from knowing about
the complaints that are filed. What better way than to legally place
in the ethics code an otherwise unconstitutional penalty for
disclosing a complaint? Yes, if you read the amended provision
carefully, you will realize that it is only false complaints that
can't be disclosed, but (1) many people won't read it this closely,
(2) this ban on disclosure will make them more likely to read and
worry about the penalty for "reckless disregard" for the truth, and recognize that mere negligence, not what the rest of us think of as "malice," is sufficient to severely penalize a complainant, and
(3) even those who understand the whole thing are more likely to
decide it's just not worth filing a complaint, that the system has
been designed to protect officials, not the public. That is the last
impression an ethics code should make, but that is how it would be
if the League of Cities has its way. 
 
Nastiness Need Not Be Met with More Nastiness 
I understand how annoying it is to have an ethics complaint filed
against you by a political opponent, and then have the opponent hold
a press conference before you've even received a copy of the
complaint. That's a nasty thing to do. And it's even nastier if the
allegations aren't true. 
 
But is it any less nasty to, in the name of protecting officials
from ax-wielding complainants, propose an ethics code amendment that
will have a chilling effect both on the transparency of ethics
proceedings (transparency being one of the principal values of
government ethics) and on the filing of ethics complaints? And is it
any less nasty to threaten to heap costs, attorney fees, and civil
penalties on a complainant who makes a mistake, lacks all the
information, or depends on what he has been told, and is found to
have acted negligently with respect to the truth (something, thank
goodness, government officials are never, ever guilty of)? 
 
The Best Practice with Respect to False Allegations 
To put this whole thing into perspective, we need to recognize what a complaint is. A
complaint is just a way to get an ethics proceeding rolling. No
investigation is required of a complainant. That is done by the
ethics commission. In fact, once a complaint has been filed, its
allegations are wholly in the hands of the ethics commission, which
can dismiss them (singly or wholly) at any time and thereby make the
official look good and the complainant look bad. This is the most
common penalty for filing false allegations in American local
government ethics programs. 
 
Not only is it common, but it is a best practice, and the League of
Cities should explain why Florida should go further from a best
practice than it already is. Is it Florida's exceptional record of
corrupt officials that make them more worthy of protection than they
are in other states? Is this proposal, then, simply another example
of local official corruption in Florida, putting their personal
interests before the public interest? 
 
Why Involve an Ethics Commission with Intent, Defamation, and
External Statements? 
One of the things that distinguishes ethics proceedings is that they
do not deal with intent and motive. It doesn't matter why an
official accepts an illegal gift. It doesn't matter whether an
official would help or hinder his sister's company, or whether he
was given a job with a contractor because he helped it or not. An
official is supposed to withdraw from matters involving his sister's
company and may not take a job with a contractor with which he was
involved as an official. Period. No motivation questions asked. 
 
This is another reason why a malicious intent provision does not
belong in an ethics code. This is not the kind of determination ECs
are supposed to make about officials. Why should they make such
determinations about citizens? 
 
In addition, ECs are only supposed to make determinations involving
conflicts of interest issues. Defamation is not a conflict of
interest issue. If officials want to sue for defamation, they may do
so, and the legal language is the same. The only difference is that
suing for defamation in an ethics proceeding puts the burden on the
EC, rather than on the plaintiff, and allows the determination to be
made via an administrative rather than judicial process. That is, it
is less expensive for the official and provides less due process to
the complainant. There is a judicial process, which is considered sufficient for other purposes.
Why does the League of Cities feel another process is needed so badly for
matters that affect only its members? 
 
Why is it so
important that the ethics commission should be a referee of
allegations in any way other than dismissing them, finding probable
cause, or finding an ethics violation did or did not occur? Any statement the complainant makes publicly about ethics allegations has nothing to
do with the ethics proceeding and should be ignored by those involved, just as in a criminal proceeding. 
 
The fact is that the League of Cities knows that how rarely an ethics commission will be called on to make decisions regarding defamation or to referee complainants' public statements. That isn't really what this is about. According to <a href="http://www.dmlp.org/legal-guide/proving-fault-actual-malice-and-neglige…; target="”_blank”">the

Digital Media Law Project</a>, "in only a handful of cases over
the last decades have plaintiffs been successful in establishing the
requisite actual malice to prove defamation" against a public
figure. One of the things that distinguishes America from most
countries is that citizens here are free to say what they want about
public figures, including government officials, without the fear of
defamation suits. This has its downsides, but movie stars, athletes,
and business executives are not calling for more protection. And
they do not have a fiduciary duty to the public, as government
officials do. Why is it that Florida local officials, who do have
this fiduciary duty, are the ones saying they are not sufficiently
protected by the law, and need to have recourse to the ethics
commission? 
 
The answer is, Because they want to scare people off from filing
ethics complaints. The only other answer is that they support the
American legal system less than movie stars do. 
 
A Couple of Scenarios 
Here is a scenario of what might happen if the League of Cities were
to get its way. A complainant learns about serious ethical misconduct
among a group of officials and brings it to the attention of the EC. However,
in writing her complaint, she has reckless disregard for the
truth of one allegation (that is, she entertained doubts about the
validity of a stated fact, but included it anyway, believing the
likelihood of its truth was sufficient to enable the EC to
investigate and determine its truth). When the EC sits on the
complaint for a long time, the complainant permits someone who
helped to draft the complaint put the complaint online. Four of the
six allegations in the complaint lead to findings of ethics
violations after a hard-fought proceeding. The League of Cities
would want the EC to have to go through a second long proceeding,
which would end with this heroic whistleblower paying costs, the five
respondents' attorney fees for defense against the allegations and
for their vengeful motion to have the complainant found guilty of a
false statement, and another penalty on top of that for allowing an
ally to let the public know about the complaint. 
 
Let's contrast this example to that of an official who has helped
get his brother a big government contract. This official, who has a
fiduciary duty to the public that a complainant lacks and who is,
unlike the complainant, the subject of the ethics code, pays only
his own attorney fees. I don't know how it works with Florida's
local governments, but across the country many local governments
pick up an official's attorney fees, so the official may be off the hook
even for these. In addition, the official
can make factual misrepresentations right and left, including false
allegations, and say anything he wants to the public, and the EC can do nothing about it. 
 
Of course, the League of Cities' proposal is not really about
hurting whistleblowers. It's about limiting the number of
whistleblowers, the number of allegations they make, and their
freedom to speak publicly about their allegations, especially when
they feel that the EC is not doing a good enough job with them. 
 
Publicly Dismissing False Allegations Is in Everyone's Best Interest 
It is not in the public interest to prevent uncertain allegations
from being made. It is in the public interest for uncertain
allegations to be made and investigated and, if they prove not to be
true, publicly dismissed, so the official is shown not to have done
anything wrong, and the complainant is humiliated. 
 
One of the reasons it is important to have an ethics program, for
everyone's sake, is to quickly dismiss false allegations. Without an
ethics program, false allegations can be made anonymously anywhere
and everywhere. With an ethics program, the response to such
allegations is, "Okay, then file an ethics complaint." If one isn't
filed, it's an admission that the allegations aren't true. But if you have
serious penalties for filing a complaint, one who makes false
allegations can honestly say that she is afraid that one of her
statements may be found to have been false, and that she could be on
the hook for huge costs and fees and penalties. 
 
If everything is kept confidential, how can a complainant say to the
blogosphere arguing about an official's guilt, "Hey, wait, I filed
an ethics complaint. Let's let the EC decide on my allegations."
That's the responsible thing to do, but the League of Cities doesn't
want it to happen. It sees everything as politics because, guess
what, its members are politicians. But it's not all politics, and
even when it is, it's useful. Isn't that pretty much a description
of our democratic system. Secrecy and penalties to prevent
whistleblowing is supposed to be the Russian form of government, not
ours. 
 
How to Reform This Provision 
The best ethics reform would be to strike the entire provision. This
is effectively what I recommend in my book Local Government Ethics
Programs (for false complaints, <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Dea…; target="”_blank”">click

here</a> and go to the seventh subsection; for a long discussion
of the confidentiality of ethics proceedings, <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Con…; target="”_blank”">click

here</a>). 
 
Another effective ethics reform would be to allow citizens to make
tips to the EC, and allow the EC to determine, after a preliminary
investigation, whether it is appropriate to begin an ethics
proceeding without a formal complaint. This allows uncertain
complainants to provide information without fear of huge damages if
they're wrong. 
 
The League of Cities' Irresponsible Conduct 
I'm sure that the local government ethics experts at the League of
Cities were as much aware of these options as they were of the
unconstitutionality of the language they proposed adding back into the ethics
code. They say in their press release that their goal is to make the
Florida code "a model for the country." Instead, it would be a model
for what not to do, the government ethics equivalent of directions
on building a bomb. 
 
I use this extreme metaphor because the League of Cities' proposal
is deeply irresponsible. This is what it is saying to the public.
One, we
local officials want to turn a program intended to provide oversight
over us into a program to provide oversight over any of you who are
rash enough to want to provide information that will allow the EC to
fulfill its enforcement obligations. Two, we local officials want to
make the consequences of negligent falsity by a citizen complainant
as bad or worse than what could happen to us officials when we
commit ethics violations. Consider a roughly equivalent law that
penalizes a murder witness as much or more than
the murderer himself, because the witness is found to have had reckless disregard
of the truth of one of the facts he gives to the police (even though
he pointed the finger at the actual murderer). How fair is that? And three, we local
officials think that all this is worth the chilling effect it will
have on all the citizens who will be afraid to file an ethics
complaint in order to hold us accountable for our misconduct. In fact, this is all
about the chilling effect. 
 
What the League of Cities has proposed is not "tough ethics reform,"
which is what it says in its press release. It is worse than any
individual official's ethical misconduct. It is systemic ethical
misconduct, putting the personal interest of all local officials in not being
the subject of ethics complaints ahead of the public interest in the
EC providing effective prevention and enforcement of the state's ethics laws. 
 
The League of Cities should not only ask Sen. Clemens to withdraw
this proposal. It should apologize to the public for having
recommended it, and it should swear never to lobby on government
ethics topics again. I will discuss the lobbying issue further in the last blog
post on this bill. 
 
<a href="http://www.cityethics.org/content/florida-league-cities-ethics-reform-p…; target="”_blank”">Part II - Gifts, Ethics Advice, and Training</a> 
 
<a href="http://www.cityethics.org/content/florida-league-cities-ethics-reform-p…; target="”_blank”">Part III - Placing Shackles on Countywide Ethics Programs</a> 
 
<a href="http://www.cityethics.org/content/fl-league-cities-ethics-proposals-iv-…; target="”_blank”">Part IV - Local Govt. Associations Should Not Lobby re Conflicts of Interest</a> 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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