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Miami-Dade County's Cone of Silence, Prohibiting Oral Ex Parte Communications re Contracts
Monday, December 22nd, 2008
Robert Wechsler
While on the topic of ex parte communications, it's a good time to
mention a very special ex parte communications provision, Miami-Dade
County's renowned "code of silence" provision. It's also a good time
because, according to an article in the Miami Herald, the provision was
reconsidered earlier this month by the Budget and Finance Committee of
the county commission. Here's how the Miami-Dade County
Ethics Commission describes the cone of silence provision:
According to Robert Meyers, the EC's executive director, the purpose of the provision is to "insulate county officials and employees from pressure that bidders and their lobbyists try to exert on decision-makers to win lucrative county contracts. ... This assures the public that the county's purchasing and procurement decisions are not compromised by backroom dealings and secret negotiations. [all communication has to be in writing and, therefore, accessible to the news media, to all government officials, to all bidders, and to the public] ... it creates a level playing field -- all competitors have access to the same information."
Arguments against the provision include that it causes unnecessary delays, hinders decision-makers from learning key details of some contracts, and limits freedom of speech (but can't a government limit the speech (not to mention just the form of speech) of a government official acting as a government official, as opposed to criticizing government policies, etc.?). Another criticism is that the provision increases the possibility of undue influence from the county administrators who appoint contract selection committees and write bid proposals, which, I suppose, is the way for contractors to affect the process without illegal communications. There is no doubt that the people who write bid proposals can, especially via specifications, limit the number of contractors that can bid. But that can happen with or without a code of silence provision.
The county commission committee decided to keep the provision, as recently amended, and see how it works. The amendments are, according to the article, as follows:
According to the article, the provision originated with former County Mayor Alex Penelas, when he was under attack for surrounding himself with those who could benefit from county contracts.
For those not familiar with the old TV show Get Smart, the original "cone of silence" was a clear cone that dropped down over comical secret agent Maxwell Smart and Chief when they talked about important things. The characters knew the cone wasn't really soundproof, but the characters used it anyways. The irony is not lost on government ethics professionals, who know that no ethics provision is foolproof, but use them anyway. You have to be more of a fool than Maxwell Smart not to employ the best possible solutions to government ethics problems.
To read the unamended code of silence provision, click here and go to page 24 of 32 (it's page 19 in print).
Robert Wechsler
Director of Research-Retired, City Ethics
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The Cone of Silence prohibits oral
communication between vendors, bidders, lobbyists and the county or
municipality's professional staff including the manager and his or her
staff between the time that the bid, RFP or RFQ is being drafted by the
Department of Procurement Management or the issuing department and the
written recommendation of the city or county manager to the county or
city commission or council.
The Cone of Silence also prohibits oral communication regarding the bid, RFP or RFQ between the Mayor, County or City Commissioners and their respective staff and any member of the county or city's professional staff between advertisement of the bid, RFP and RFQ and the manager's written recommendation.
The Cone of Silence does not apply to communications with the county or city attorney and his or her staff, communications with the technical assistance unit of the Department of Business Development regarding CSBE or minority business programs, duly noticed site visits and emergency procurement of goods or services.
The Cone of Silence also does not apply to pre-bid conferences, selection committee presentations, contract negotiations or presentations before the Board of County Commissioners or a municipal commission or council.
The Cone of Silence does not prohibit communications between a vendor, service provider, bidder lobbyist or consultant and the Vendor Information Center staff, the procurement agent or the contracting officer as long as the communication is limited to matters of process or procedure.
The Cone of Silence does not prohibit the communications between the procurement officer or the contracting officer and a member of the selection committee as long as the communication is limited to matters of process or procedure.
The Cone of Silence also prohibits oral communication regarding the bid, RFP or RFQ between the Mayor, County or City Commissioners and their respective staff and any member of the county or city's professional staff between advertisement of the bid, RFP and RFQ and the manager's written recommendation.
The Cone of Silence does not apply to communications with the county or city attorney and his or her staff, communications with the technical assistance unit of the Department of Business Development regarding CSBE or minority business programs, duly noticed site visits and emergency procurement of goods or services.
The Cone of Silence also does not apply to pre-bid conferences, selection committee presentations, contract negotiations or presentations before the Board of County Commissioners or a municipal commission or council.
The Cone of Silence does not prohibit communications between a vendor, service provider, bidder lobbyist or consultant and the Vendor Information Center staff, the procurement agent or the contracting officer as long as the communication is limited to matters of process or procedure.
The Cone of Silence does not prohibit the communications between the procurement officer or the contracting officer and a member of the selection committee as long as the communication is limited to matters of process or procedure.
According to Robert Meyers, the EC's executive director, the purpose of the provision is to "insulate county officials and employees from pressure that bidders and their lobbyists try to exert on decision-makers to win lucrative county contracts. ... This assures the public that the county's purchasing and procurement decisions are not compromised by backroom dealings and secret negotiations. [all communication has to be in writing and, therefore, accessible to the news media, to all government officials, to all bidders, and to the public] ... it creates a level playing field -- all competitors have access to the same information."
Arguments against the provision include that it causes unnecessary delays, hinders decision-makers from learning key details of some contracts, and limits freedom of speech (but can't a government limit the speech (not to mention just the form of speech) of a government official acting as a government official, as opposed to criticizing government policies, etc.?). Another criticism is that the provision increases the possibility of undue influence from the county administrators who appoint contract selection committees and write bid proposals, which, I suppose, is the way for contractors to affect the process without illegal communications. There is no doubt that the people who write bid proposals can, especially via specifications, limit the number of contractors that can bid. But that can happen with or without a code of silence provision.
The county commission committee decided to keep the provision, as recently amended, and see how it works. The amendments are, according to the article, as follows:
Department heads and other staffers can speak with the county
manager after the selection process, but before the manager issues his
recommendation.
Staffers can talk with each other during the process and require the county manager to forward recommendations to the county commission within 90 days.
Staffers can talk with each other during the process and require the county manager to forward recommendations to the county commission within 90 days.
According to the article, the provision originated with former County Mayor Alex Penelas, when he was under attack for surrounding himself with those who could benefit from county contracts.
For those not familiar with the old TV show Get Smart, the original "cone of silence" was a clear cone that dropped down over comical secret agent Maxwell Smart and Chief when they talked about important things. The characters knew the cone wasn't really soundproof, but the characters used it anyways. The irony is not lost on government ethics professionals, who know that no ethics provision is foolproof, but use them anyway. You have to be more of a fool than Maxwell Smart not to employ the best possible solutions to government ethics problems.
To read the unamended code of silence provision, click here and go to page 24 of 32 (it's page 19 in print).
Robert Wechsler
Director of Research-Retired, City Ethics
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