A Government Attorney Ethics Advice Case Study from Florida
Here is a concrete example of the problem of allowing local
government attorneys to provide ethics advice that protects local officials, a problem that
Florida state senator Jeff Clemens and the Florida League of Cities
want to harden into state law in SB 606 (see <a href="http://www.cityethics.org/content/florida-league-cities-ethics-reform-p…; target="”_blank”">my
recent blog post</a> for a discussion of the problem).<br>
<br>
According to <a href="http://www.sun-sentinel.com/news/broward/fl-sheriff-israel-ethics-viola…; target="”_blank”">an
article in yesterday's <i>Sun-Sentinel</i></a>, the state ethics
commission found probable cause that a county sheriff had failed to
report gifts from a contractor and campaign supporter, but
recommended that no action be taken because the sheriff had relied
on advise of counsel. That counsel was general counsel for the
property appraiser's office, who happens to be the son of a county
commissioner and whom the sheriff happened to have since made his office's general counsel. This government attorney told the sheriff to value the gift of a
Bahamas cruise on the contractor's yacht (10 passengers, including
the sheriff's and contractor's families) by how much it would cost
to take a commercial cruise to the Bahamas. The actual cost was
nearly four times the cost of a commercial cruise, and the experience was very different. On this basis,
the sheriff paid the contractor a quarter of the actual cost, making
the rest a gift.<br>
<br>
In addition, the general counsel told the sheriff not to bother
reporting a three-hour cruise party on the yacht, which was a
thank-you to campaign supporters (the sheriff invited 15 of the
people at the party), because it was worth less than $100, even
though it was an additional gift and the actual cost was $200 per
person.<br>
<br>
One of two things must be true. Either the general counsel was
biased toward the sheriff and gave him information that would allow
him to save money and say he acted on advice of counsel. Or the general counsel did
not understand the valuing of gifts or did not ask the right
questions or advise the sheriff to give him more information — in
other words, the general counsel lacked government ethics expertise
or was simply incompetent, and was not sufficiently aware of his
limitations to suggest that the sheriff seek ethics advice
elsewhere.<br>
<br>
As long as officials can get their ethics advice from anyone they
feel will be most sympathetic to them, and know the advice will protect them, there
will be a lot of ethical misconduct. As it is now, the state EC takes
advice of counsel into account only in determining the penalty for
misconduct. SB 606 would allow advice of counsel to protect
officials even from a finding of probable cause.<br>
<br>
Most important is how the whole thing looks to the public. The
comments to the article consistently see the story as an elected
official getting away with a crime. People don't accept the advise
of counsel defense. First, it is a government lawyer, paid for by
the public to give advice partial to the official. Second, the
lawyer is the son of another elected official and is now the sheriff's attorney, in other words a
"crony." It looks not like vindication, but like complicity. And
nothing either of them says can change this reasonable view of what
occurred. The biggest problem is that the EC appears to be complicit, as
well.<br>
<br>
It doesn't help that the sheriff has trumpeted his
vindication: "I said from the beginning that I followed the
law and acted correctly at all times, and this official outcome
vindicates my prior statements." What the public sees is that
probable cause was found, and then the EC dropped the case for what
appears to be a specious reason.<br>
<br>
Officials should be able to depend on advice of counsel. But when it
comes to government ethics matters, this advice should come solely
from a neutral, professional ethics adviser, not from any attorney
the official chooses. Not only would the sheriff have received more
professional advice. It also would have looked better to the public and
the EC could have defended the advice, rather than dismissing it and then accepting it as a defense.<br>
<br>
<b>Changing the Gift Rule</b><br>
This situation also points to a better solution to the gift disclosure rule than SB 606 provides (SB 606 would do away with gift disclosure, but place no ban on gifts). It appears that the contractor does not do business in Broward County, including with the sheriff's office. He might very well be a rich guy who really wanted to see his friend win the election. In this case, not only should the gift be legal, but it should not have to be disclosed, paid for, or anything else. The only question under a better gift rule, which banned gifts from interested parties, is whether the contractor intends to seek business with the sheriff's office and whether the gifts are within the campaign finance limits. A family cruise is certainly not a campaign contribution, but a post-election thank-you party might very well be. Changing the gift law to one that applies only to restricted sources might have saved the sheriff, and the public, some trouble.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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