An Audit Report on the Palm Beach County EC

Anonymous

Wed, 11/06/2013 - 03:29

County Related

In <a href="http://www.cityethics.org/content/appearance-problems-surrounding-reque…; target="”_blank”">an

April 2013 blog post</a>, I wrote about the problems surrounding a
Florida state senator's request for a state audit of Palm Beach
County's EC. That report, drafted by the state legislature's Office
of Program Policy Analysis and Government Accountability, has recently been published, and it includes
the EC's response to the report (attached; see below). 
 
In this post, I will critique the audit report. I will not go further into the controversies
surrounding the request for the audit. For more on these, see
articles <a href="http://articles.sun-sentinel.com/2013-11-04/news/fl-ethics-commission-l…; target="”_blank”">in

Monday's Sun-Sentinel</a> and <a href="http://www.bizpacreview.com/2013/11/05/pbc-ethics-commission-under-fire…; target="”_blank”">in

yesterday's BizPac Review</a>. In a future post, I will look at how others are portraying the report and what they are saying about the Palm Beach County EC.

Separation of EC Roles 
The report's first area of concern involves the varied roles of
EC members and staff. This is a problem shared by all but the
largest jurisdictions (something the report does not recognize). The
report makes some good points about the value of separating
investigative, prosecutorial, and hearing functions, but it errs in
two ways. One, it keeps comparing the county program to the state's.
This is unfair. The state program has many more resources and,
because its members are selected by those under its jurisdiction, it
has to go out of its way to show the public that decisions are being
made in as unbiased a manner as possible. Because the Palm Beach
County ethics program is independent from those under its
jurisdiction, it does not need to do as much to gain the public's
trust. 
 
Two, due process in an ethics context is not the same as in a
criminal context. This is true (1) because criminal justice
proceedings involve ordinary citizens faced with prosecution by the
government, while government ethics proceedings involve government
officials faced with prosecution by a citizen oversight body; and
(2) officials who are found to have violated an ethics provision do
not go to prison or pay large fines. This is why ethics proceedings
are administrative in nature and have, for example, relaxed
evidentiary rules. One cannot apply constitutional due process
rights to ethics proceedings. 
 
When it comes to the roles that EC members and staff play,
government ethics programs, limited by small or nonexistent staffs
and budgets, have to do the best they can. It is great to have a
separate investigator on staff or to use an inspector general to
investigate, if the funds or IG office are available (and the IG is
willing and able to do the investigations on a timely basis). It is
also great to have a separate, experienced advocate available, if
there is sufficient funding. 
 
The EC's response points to a recent First Circuit federal appeals
decision on the separation of roles. <a href="http://opinions.1dca.org/written/opinions2013/09-13-2013/12-2819.pdf&qu…; target="”_blank”">McAlpin

v. Criminal Justice Standards and Training Commission</a> (Case #
1D12-2819, September 13, 2013) states that, as long as the roles of
advocate and legal advisor are not held by the same individual in a given case, "there is
nothing inherently inappropriate with consolidating investigative,
prosecutorial, and adjudicative authority in a single entity or agency." 
 
The report is also wrong to suggest that the body which
finds probable cause cannot then make a determination of whether or
not a violation occurred. A finding of probable cause uses a
different standard than a finding of a violation, and probable cause
requires only a preliminary investigation. It is nothing more than a finding that there is reason to
proceed with a matter. The investigation may
continue, and a final determination is based on additional
documents, witnesses, and arguments. A finding of probable cause
does not in any way bias an ethics commission toward finding a
violation. 
 
<a href="http://www.cityethics.org/content/home-field-advantage-theory-governmen…; target="”_blank”">As

we have witnessed in Louisiana</a>, taking enforcement out of the
hands of an independent EC and giving it to retired judges can
greatly reduce the effectiveness of enforcement, and is seen
correctly as an attempt by those under an EC's jurisdiction to
weaken its authority. 
 
The Palm Beach County EC takes an unusual approach to separation of
roles by using pro bono lawyers to advocate, or prosecute, matters.
The report rightly points out that such pro bono advocates would
lack the expertise necessary to properly represent the public in
these proceedings. It also notes that they would be overly dependent
on the EC staff. This is not an optimal approach, even if it does
serve the secondary goals of saving the public money and giving local lawyers
pro bono credits. The public should be willing to pay for
experienced and independent counsel, whether counsel is part of the
EC staff or on contract. 
 
EC Member Withdrawal 
The report is correct in pointing out issues regarding ethics
commission member withdrawal. According to the report, the EC asked
the Florida Commission on Ethics and the Florida Attorney General’s
Office for advice on this issue. The AG told the EC that state law
requires officials to recuse themselves when they or a member of
their family would gain financially by voting on a matter before
them. 
 
According to the report, "[ethics] commissioners have determined
that if issues do not meet the threshold of a financial interest,
they cannot recuse themselves from voting even if they know the
parties involved." But they find themselves criticized for
participating where they appear to have a relationship with someone
involved. 
 
The problem here is the law, not the EC. As the EC's response points out, state and local law require
ethics commissioners to vote on business before the Commission
unless they meet the specific grounds for recusal (Fla. Stat.
§286.012, Palm Beach County Code of Ethics §2-443). 
 
The law is wrong. As quasi-judicial officials, EC members have a
higher obligation to disclose their possible conflicts, and deal
with them responsibly by withdrawing from matters where there is any
appearance of bias. This is one of the many reasons why EC members
should not be current or former officials or politically involved,
and should not be selected by officials under their jurisdiction. 
 
The report also recommends that there be explicit definitions of the
terms "bias, interest, and prejudice" in the EC's procedures. This
is not easy to do. It is better to have a standard based on
relationships, that is, an EC member's (or an immediate family
member's) relationship with a respondent. 
 
Finally, the report recommends what I have been recommending for all
government bodies: that each meeting 
commence (I suggest each matter commence) with the chair
asking if members have any disclosures concerning the matters before
the commission. 
 
The Disqualification Process 
There is a local rule that allows respondents and advocates to file a motion
to disqualify a commissioner for bias, interest, or prejudice,
accompanied by an affidavit stating the particular grounds for the
motion. Such a motion should be allowed, but EC
members should also be required to disclose and withdraw without
such a motion. 
 
The worst part of the rule is that it is the EC member with a
possible conflict who rules on a motion for disqualification, "based
on the legal sufficiency of the motion and affidavit." Such motions
should be ruled on either by the executive director or by the other
members of the EC. 
 
The EC argues that this rule is in line with the general law of
judicial recusal. But EC members are not judges, they are members of a quasi-judicial body. There is no
reason for them to make such a determination themselves. 
 
Preserving the Independence of EC Member Selection 
The report wisely points out that two of the selectors of EC members
consist of associations whose members have been brought under EC
jurisdiction since the original passage of the county ethics
code: the Palm Beach County League of Cities and the municipal
chiefs of police association. These selectors should be replaced. 
 
Additional Ethics Training 
The report is correct in recommending that lobbyists and vendors,
who are subject to EC jurisdiction, should be required to take
ethics training (it is now provided, but not mandatory). This would be a valuable thing to do, as long as
money is made available to do it (in fact, the lobbyists and vendors
could be asked to pay for the training). 
 
The report is also correct in recommending that EC members be given
additional training. Insufficient ethics training of EC members is a
serious problem across the country. The report does not, however, suggest
another way to ensure that EC members are sufficiently
prepared: alternate members who can learn on the job, before
they take on the job's responsibilities. 
 
In its response, the EC reports that its staff has just completed "a
comprehensive commissioner training video. This, approximately
8-hour, program includes a comprehensive review of all Ordinances,
Rules, Procedures, investigative overview, advisory opinions,
quasi-judicial functions, best practices during hearings and the
Sunshine law." This is a great thing. I hope they make the video
available to other local government ECs for guidance in creating
their own EC member training presentations. 
 
Plans and Systems 
The report recommends that the EC establish a "performance
accountability system and a strategic plan that includes clearly
stated goals and objectives that
provide expectations for its activities and measures for
assessing its progress in meeting
these expectations." This sounds great. However, the nature of an
ethics program makes this difficult. The connection between
processes and goals is far less clear than in other government
offices. The result would be of little value, and the time spent
formulating and reporting on such a plan and system would take resources away from more
important work. 
 
Conclusion 
The state audit report makes some valuable observations and some misguided observations. It says nothing that points to mismanagement or misconduct by the Palm Beach County EC. It points to the need for some changes to EC rules, to the county ethics code, and to the state ethics code. This report should lead the EC and the county commission to discuss the value of the the report's useful recommendations and the funding necessary to institute them. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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