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Legislative Involvement in Administration: Problems in Broward County, FL
Wednesday, October 3rd, 2012
Robert Wechsler
One of the most important ways of preventing ethical misconduct
usually does not appear in an ethics code, because it does not involve a
traditional conflict of interest. I am referring to non-legislative
roles played by local legislators, especially roles that enable them
to create a pay-to-play environment. These roles are played in the two
principal areas where ethical misconduct occurs: procurement
and land use decisions.
In past blog posts, I have focused on land use involvement, especially the usually informal authority given to local legislators over land use decisions in their districts, what is known as "district courtesy" or, in Chicago, "aldermanic privilege." This "courtesy" has also been a major ethics problem in such places as Dallas, Prince George's County, MD, and Gwinnett County, GA.
Legislative involvement in the bidding process, whether formal or informal, can lead to equally serious ethics problems.
This is why, when Broward County, FL instituted major ethics reforms (they became effective at the beginning of 2012), one provision prohibited county commissioners from sitting on bid committees:
The county's inspector general responded immediately to the mayor's proposal with a letter to the county commission that clearly states the reasons for the inclusion of this provision and its preservation (Broward County created an inspector general instead of an ethics commission; what the IG did could equally well be done by the executive director of an ethics commission):
The last sentence seems, to me, to be the crux of the matter. The rest just muddies the waters. Sitting on bid committees whose bids the commission will, in any event, approve does not make commissioners more accountable. It makes them more engaged in a process they have no business being engaged in. Should they also sit on grant committees, land use approval committees, hiring committees? In other words, is a legislator's job to legislate or administer?
If the mayor wants more accountability, and does not care about mixing up legislative and other activities, perhaps he should support having the IG sit on the county commission, where he can become more engaged in the process and have the information and power he needs to keep county politicians accountable.
In other words, the mayor's arguments, excepting the part about power, beg the question. The question is how much involvement local legislators should have in administration. Perhaps it would be best that county commissioners do not even have the authority to approve or reject bids, any more than they have the authority to approve or reject IG reports or decisions of the state ethics commission.
As it turns out, last night the county commission decided not to amend the ethics code, at least not yet.
Land Use Activities
Although the Broward County ethics code does deal with elected officials on bid committees, it does not deal with elected officials on land use committees. This has led to a problem in a municipality in the county, whose Community Redevelopment Agency (CRA) consists solely of the city's five commissioners, according to a Miami Herald editorial last week. Legislators' involvement in the CRA's purchase of land from a former congressman's charter school company led to a messy transaction:
An auditor has investigated the matter, and the IG is still investigating this and other land deals in the county. The county commissioners need to make the prohibition against local legislative interference in administration more broad rather than nonexistent.
Robert Wechsler
Director of Research-Retired, City Ethics
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In past blog posts, I have focused on land use involvement, especially the usually informal authority given to local legislators over land use decisions in their districts, what is known as "district courtesy" or, in Chicago, "aldermanic privilege." This "courtesy" has also been a major ethics problem in such places as Dallas, Prince George's County, MD, and Gwinnett County, GA.
Legislative involvement in the bidding process, whether formal or informal, can lead to equally serious ethics problems.
This is why, when Broward County, FL instituted major ethics reforms (they became effective at the beginning of 2012), one provision prohibited county commissioners from sitting on bid committees:
It shall be a conflict of interest for a member of the Board of County Commissioners to serve as a voting member of a County procurement Selection/Evaluation Committee. County Commissioners shall not be included as members on any Selection/Evaluation Committee and shall not participate or interfere in any manner at Committee meetings or in the selection of Committee members, which members shall be appointed by the County Administrator. Upon the completion of the selection process by the Committee, County Commissioners may inquire into any and all aspects of the selection process and express any concerns they may have to the Purchasing Director.According to an article in Monday's Sun-Sentinel, less than a year later the county mayor called for this provision to be removed from the ethics code.
The county's inspector general responded immediately to the mayor's proposal with a letter to the county commission that clearly states the reasons for the inclusion of this provision and its preservation (Broward County created an inspector general instead of an ethics commission; what the IG did could equally well be done by the executive director of an ethics commission):
[P]rocurement selection committees are vulnerable to the appearance of impropriety and potential abuse because they are empowered to designate a particular contractor or vendor as the favorite, and recommend specific contracts or vendors to the governing body. Thus, selection committees are the focus of significant attention from interested businesses, competing bidders, [and] elected officials ... The Ethics Commission [that drafted the ethics code] observed that few staff members are in a position to openly disagree with a commissioner serving on a selection committee, and concluded that a commissioner's mere presence on the selection committee presented an obstacle to a transparent and unbiased procurement.Two county commissioners are quoted in a Sun-Sentinel article today as saying that they don't mind being prohibited from sitting on bid committees after what they witnessed:
Lobbyists made phone calls or approached commissioners and said, "Would you get on that committee?" We did that, and people on this dais did that. And that's what muddied it up.The mayor has an argument for doing away with the provision. He argues that having county commissioners on bid committees makes them "more accountable for their decisions.'' It allows them to make more educated votes with respect to approving bids accepted by committees. It makes them "more engaged in the process. ... I think they reined in the power of the board beyond what they should have done.''
There were times when you could tell people made decisions based on friendships rather than value. I saw how the system could be manipulated and was. There isn't one of us that didn't notice it.
The last sentence seems, to me, to be the crux of the matter. The rest just muddies the waters. Sitting on bid committees whose bids the commission will, in any event, approve does not make commissioners more accountable. It makes them more engaged in a process they have no business being engaged in. Should they also sit on grant committees, land use approval committees, hiring committees? In other words, is a legislator's job to legislate or administer?
If the mayor wants more accountability, and does not care about mixing up legislative and other activities, perhaps he should support having the IG sit on the county commission, where he can become more engaged in the process and have the information and power he needs to keep county politicians accountable.
In other words, the mayor's arguments, excepting the part about power, beg the question. The question is how much involvement local legislators should have in administration. Perhaps it would be best that county commissioners do not even have the authority to approve or reject bids, any more than they have the authority to approve or reject IG reports or decisions of the state ethics commission.
As it turns out, last night the county commission decided not to amend the ethics code, at least not yet.
Land Use Activities
Although the Broward County ethics code does deal with elected officials on bid committees, it does not deal with elected officials on land use committees. This has led to a problem in a municipality in the county, whose Community Redevelopment Agency (CRA) consists solely of the city's five commissioners, according to a Miami Herald editorial last week. Legislators' involvement in the CRA's purchase of land from a former congressman's charter school company led to a messy transaction:
[I]nstead of CRA money, city administrators used the city’s own general revenue to pay for the land. The auditor faults these officials for acting without approval of the City Commission to use city money and title the property in the city’s, not the CRA’s, name.It's hard to do things right when city commissioners are wearing two hats in the same transaction. Why have an agency that consists of the legislative body? If a legislative body wants to keep transactions separate, it should create a real separate agency, not a clone of itself.
An auditor has investigated the matter, and the IG is still investigating this and other land deals in the county. The county commissioners need to make the prohibition against local legislative interference in administration more broad rather than nonexistent.
Robert Wechsler
Director of Research-Retired, City Ethics
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