A Grand Jury Report in Florida Recommends Numerous Ethics Reforms
In February, Florida governor Charlie Crist asked for a grand jury to
report on government corruption in Florida. <a href="http://myfloridalegal.com/webfiles.nsf/WF/JFAO-8CLT9A/$file/19thSWGJInt…; target="”_blank”">The
first
interim report</a> was filed yesterday. Its recommendations involve local government as well as state ethics laws.<br>
<br>
The report begins (p. 3) by characterizing fraud, waste, and abuse of
government resources as "Florida's Corruption Tax," a nice way to spin
the issue.<br>
<br>
Only ten years ago, a blue-ribbon Public Corruption Study Commission,
consisting primarily of state officials, including ethics commission
staff, filed <a href="http://www.fdle.state.fl.us/Content/getdoc/1c2a84c9-d03c-4909-b6d9-6c11…; target="”_blank”">a
much
shorter report</a>, which provided ethics and corruption law
reform language. The new report lists all the commission's
recommendations that were not accepted by the state legislature. Most
involved criminal issues, but two important ethics proposals were
ignored: required ethics training (reiterated by the state grand
jury on p. 106) and allowing the state ethics commission to investigate
without a complaint (reiterated by the state grand jury on p. 82).
These two ethics provisions are essential to an ethics program.<br>
<br>
The report also refers to the a 2009
Palm
Beach County grand jury report (attached; see below), which made one especially
interesting recommendation, which the state grand jury reiterates (at
p. 37): to create a sentencing enhancement for crimes committed
“under the color of law.”<br>
<br>
Here's a list of some other excellent recommendations in the report.
The recommendations include specific instances where the current law
prevented enforcement. I will include some of these in future blog
posts.<ul>
An expansion of the definition of "public servant" to include
individuals who work for any entity "authorized by law or contract to
perform a governmental function or provide a governmental service." (p.
17, and see p. 83) This change recognizes the growing privatization of
government.<br>
<br>
A new provision to address failure to use the competitive bidding
process when required to do so, and to expressly prohibit the splitting
of bids in order to avoid the competitive bidding process (p. 27).<br>
<br>
Placing all state inspector general offices under one state inspector
general's office, to make all the offices more independent (p. 54).<br>
<br>
Prohibiting officials with a conflict of interest, as well as their
staff members, from attempting to influence the outcome of any vote,
decision, recommendation, finding, or report relating to the official’s office (p. 67).<br>
<br>
Requiring electronic filing of all financial and gift disclosure forms
(p. 71).<br>
<br>
The consolidation of all definitions in one definitions section (p. 85).<br>
<br>
Requiring all metropolitan counties to establish their own ethics codes
and commissions similar to <a href="http://www.miamidadeethics.com/" target="”_blank”">that
of
Miami-Dade County</a> (p. 88). But if the state ethics commission is
made more independent and given more resources, and the state ethics
code is improved, this may not be necessary.<br>
<br>
The creation of a single debarment list that encompasses all
contractors who have been barred by the state or any county or city,
along with stronger debarment provisions (p. 102).<br>
<br>
Appointment of state and local agency ethics officers to handle ethics
training (p. 106).</ul>
One area of recommendations that I don't like is to criminalize (as
felonies) most of the essential ethics provisions when the conduct is
intentional or willful (p. 39ff). This appears to be a stronger way of
dealing with corruption, but it is actually a weaker way of dealing
with unethical conduct, because it brings in prosecutors, who usually
have more important matters to deal with and who are themselves
politically active. Thus, criminalization makes it less likely that
enforcement will occur and more likely that the enforcement that does occur
will appear partisan, thereby undermining the public's trust in the
ethics process itself.<br>
<br>
Better to increase the top civil penalty, as the grand jury recommends,
from $10,000 to $100,000 (p. 66). But even here, care is required. The
higher the penalty, the more due process becomes an issue. The ethics
process is an administrative rather than a judicial process. Penalties
that are too high may not be appropriate to an administrative process. Better, I think, to focus on restitution, debarment, and other such penalties.<br>
<br>
Something recommended in this report, but which I haven't written about
at all, is blind trusts for certain state and local officials (p. 69).
This is worthy of its own blog post.<br>
<br>
According to <a href="http://www.tampabay.com/news/politics/grand-jury-calls-for-reform-citin…; target="”_blank”">an
article in the Tampa Bay <i>Times-Herald</i> today</a>, former state senator
Dan Gelber, "who several times pushed for stronger ethics rules, is
skeptical that the grand jury report will make a difference even though
it's full of good ideas."<ul>
"The problem has not been the ideas. It's been the unwillingness of the
Legislature to really reform itself and public offices around the
state," he said. "The Legislature refuses to seriously address public
corruption. I commend the grand jury for cataloging a lot of the ideas.
At the end of the day, unless there's the political will to implement
them, it will be meaningless."<br>
<br>
The grand jury acknowledged that very point. "We cannot ignore the
reality that it is often hard to impose more severe restrictions on
one's own interests," the jury wrote.</ul>
That's a very clear, simple description of the conflict of interest at the core of dealing with conflicts
of interest.<br>
<br>
I will end this blog post with a quote from Thomas Jefferson that
appears on page 16 of the report: “Where a man assumes a public
trust, he should consider himself a public property.”<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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