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An Audit Report on the Palm Beach County EC
Wednesday, November 6th, 2013
In an
April 2013 blog post, 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 in Monday's Sun-Sentinel and in yesterday's BizPac Review. 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. McAlpin v. Criminal Justice Standards and Training Commission (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.
As we have witnessed in Louisiana, 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
---
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 in Monday's Sun-Sentinel and in yesterday's BizPac Review. 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. McAlpin v. Criminal Justice Standards and Training Commission (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.
As we have witnessed in Louisiana, 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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| Attachment | Size |
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 Florida Audit Report of Palm Beach County EC 1013.pdf | 0 bytes |
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