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

This is the second of four blog posts on Florida Senate Bill 606 (attached; see below), one of the worst ethics reform bills I have ever read (click here to read the first post, which focused on a provision that provides an additional penalty on complainants in order to reduce the number of ethics complaints).

Gift Reporting vs. Gift Banning
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.

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.

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.

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.

Government Attorney Ethics Opinions
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 my latest blog post on the topic 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.

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.

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.

The Supreme Court of California, in The People v. Chacon, 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.

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.

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):

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. ...

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.

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.

Ethics Training and Other Positive Proposals
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.

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.

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.

Part I - Preventing the Filing of Complaints

Part III - Placing Shackles on Countywide Ethics Programs

Part IV - Local Govt. Associations Should Not Lobby re Conflicts of Interest

Robert Wechsler
Director of Research-Retired, City Ethics

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