Florida League of Cities' Ethics Reform Proposals II - Gifts, Ethics Advice, and Training

This is the second of four blog posts on <a href="http://static.lobbytools.com/bills/2014/pdf/0606.pdf&quot; target="”_blank”">Florida
Senate Bill 606</a> (attached; see below), one of the worst ethics
reform bills I have ever read (<a href="http://www.cityethics.org/content/florida-league-cities-ethics-reform-p…; target="”_blank”">click here to read the first post</a>,
which focused on a provision that provides an additional penalty on
complainants in order to reduce the number of ethics complaints).<br>
<br>
<b>Gift Reporting vs. Gift Banning</b><br>
The central provision of the bill would end gift reporting for state
and local officials. I too am opposed to gift reporting. Government
officials should not be accepting gifts from restricted sources, at
least beyond a very low limit, such as $50 a year, to cover basic
refreshments. To have them report gifts sends the message that
they're okay, and that the only issue is how much one's constituents
will notice or care enough to vote gift receivers out of office.<br>
<br>
The problem with gift reporting in Florida is that no
distinction is made between gifts from restricted sources and gifts
from others (except for relatives). Every birthday present from a
friend has to be reported. This is ridiculous.<br>
<br>
The problem with simply getting rid of gift reporting is that, when
one does, gifts from restricted sources remain legal and, to make it even worse, there is no
transparency. <br>
<br>

The bill's sponsor Sen. Clemens, and the Florida League of Cities, which was deeply involved in drafting the bill, have identified a problem,
but provided the worst solution possible. They should propose
instead a ban on gifts from restricted sources to replace gift
reporting. And while
they're at it, the ban on gifts should not be limited to officials.
It should also cover officials' immediate family members. Think of
the huge wedding gift to the daughter of Virginia's past governor,
which caused such a stink because it was perfectly legal,
even though everyone knows it shouldn't have been. It shouldn't be
legal in Florida either.<br>
<br>
<b>Government Attorney Ethics Opinions</b><br>
One of the most important goals of my work in local government
ethics has been to take the local government attorney out of
government ethics programs (see <a href="http://www.cityethics.org/content/arguments-against-having-city-or-coun…; target="”_blank”">my
latest blog post on the topic</a> for the many reasons why). In
their  proposed bill, Sen. Clemens and the Florida League of
Cities do the opposite: they give government attorneys the ability to provide advice about gifts and honoraria, and they give more authority to their advice.<br>
<br>
In 2008, the Florida ethics commission, which has jurisdiction over
local officials, proposed that it be made clear via state statute
that local officials cannot depend on the ethics advice of a local
government attorney. It noted that in many situations it had
reviewed, “local public officials acted on erroneous advice from
their local government attorneys.” The commission also noted “the
attorney’s client is the governmental agency and not the individual
public official.” These are two excellent reasons for prohibiting
local government attorneys from giving ethics advice.<br>
<br>
Sen. Clemens and the League of Cities want to make it clear via
state statute that officials (at least those
who have to file annual disclosure statements, that is, the ones who are League members) can depend on their
local government attorney for advice, even if they have an ethics
officer, as a large number of Florida local governments do. The
League of Cities, in its press release, says that this "allows for
fair and just outcomes for officials who rely on the legal opinion
of their government’s attorney when it comes to conflict of interest
issues." It may be fair to the officials, but it isn't fair to the
public to have government attorneys without ethics expertise and
with personal, professional, and political relationships with
officials providing these officials with ethics advice that will
protect these officials from ethics enforcement, without the
government attorney being held accountable for advice that is erroneous and/or in the personal interest of the advice-seeking official.<br>
<br>
The Supreme Court of California, in <a href="http://scocal.stanford.edu/opinion/people-v-chacon-33704&quot; target="”_blank”"><i>The People</i> v. <i>Chacon</i></a>, S125236 (February 8, 2007), found that
Chacon, a former council member charged with a conflict of interest,
could not use the defense that she had acted upon the advice of the
city attorney. This decision was made in the public interest, not in
the interest of officials. When it is clear that officials cannot
depend on the advice of a government attorney, they will seek the
advice of an ethics officer and get advice that is professional,
neutral, and is far more likely to be trusted by the public.<br>
<br>
This is the best practice, but local officials, through their
association, prefer the worst practice, because it benefits them
personally and allows them to engage in ethical misconduct without
the fear of enforcement. In other words, this proposed ethics code
amendment would enable rather than prevent ethical misconduct. It
has no place in an ethics code.<br>
<br>
The current Florida practice falls somewhere in between the best and the worst. Phil
Claypool, a former executive director of the Florida EC, describes
the practice in a letter to Integrity Florida analyzing SB 606
(attached; see below):<blockquote>

The question of what effect a city attorney's opinion should have on
a case before the Ethics Commission has always been considered on a
case-by-case basis, depending on the particular facts, with the
Commission taking into account the fact that the official sought
advice in advance and should be able to claim good faith reliance on
the advice of counsel. ... <br>
<br>
Generally, the Ethics Commission has considered advice of counsel in
deciding whether to recommend that a penalty be imposed. By
requiring the Commission to dismiss the complaint because an
attorney had given an opinion, the bill would mean that the people
of Florida must defer to the opinion of that attorney, no matter how
accurate her or his opinion was. The State agency that has the
ultimate responsibility for interpreting and enforcing Florida's
ethics laws would no longer be the final arbiter of that law. A
citizen who gets bad tax advice still must pay his or her taxes.</blockquote>

As long as the EC does not provide timely advice to officials and
an official does not have a neutral ethics officer to turn to for advice, the current practice is
adequate, although not ideal. A worse practice is not called for.
Better would be (1) allowing the state EC to provide timely ethics
advice, and providing it with sufficient resources to do so, and
(2) making it clear, as in California and some other states, that
officials cannot depend on attorneys' ethics advice and that
government attorneys should not provide ethics advice, but tell
officials to get it from the EC.<br>
<br>
<b>Ethics Training and Other Positive Proposals</b><br>
There are three positive provisions in SB 606. One clarifies that a
state statute prohibiting abstention does not apply in circumstances
where a local official has a conflict and is required by local law
to withdraw. The second positive provision is the addition of a
severability clause, which is in almost every ethics code, and
should be in Florida's, as well.<br>
<br>
The third positive provision requires local officials to get four
hours of ethics training every calendar year. There are two problems
with this. One, as Phil Claypool points out, is that when officials
are elected in November, it is difficult for them to get ethics
training during that calendar year. The period should start with the
official's hiring or taking office, and be every twelve-month period
thereafter.<br>
<br>
The second problem involves a possible conflict of interest. There
are not many entities that provide ethics training to local officials who
do not work in jurisdictions with their own ethics program. One of the
principal entities is none other than the League of Cities. Therefore,
by pushing for this, the League is pushing for expansion of a
service it provides. As of now, it does not charge its members for an ethics
training session, but once ethics training is mandatory and,
therefore, the demand surges, will this policy remain? The League's legislative lobbyist promises that it will. But he won't tell me where the money will come from to pay the trainers if there is a substantial increase in demand. In any event, as a supplier of training services,
the League has the appearance of a conflict of interest, which should have led it to have withdrawn from participation in this matter.<br>
<br>
<a href="http://www.cityethics.org/content/florida-league-cities-ethics-reform-p…; target="”_blank”">Part I - Preventing the Filing of Complaints</a><br>
<br>
<a href="http://www.cityethics.org/content/florida-league-cities-ethics-reform-p…; target="”_blank”">Part III - Placing Shackles on Countywide Ethics Programs</a><br>
<br>
<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><br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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