A Government Attorney Ethics Advice Case Study from Florida

Here is a concrete example of the problem of allowing local government attorneys to provide ethics advice that protects local officials, a problem that Florida state senator Jeff Clemens and the Florida League of Cities want to harden into state law in SB 606 (see my recent blog post for a discussion of the problem).

According to an article in yesterday's Sun-Sentinel, the state ethics commission found probable cause that a county sheriff had failed to report gifts from a contractor and campaign supporter, but recommended that no action be taken because the sheriff had relied on advise of counsel. That counsel was general counsel for the property appraiser's office, who happens to be the son of a county commissioner and whom the sheriff happened to have since made his office's general counsel. This government attorney told the sheriff to value the gift of a Bahamas cruise on the contractor's yacht (10 passengers, including the sheriff's and contractor's families) by how much it would cost to take a commercial cruise to the Bahamas. The actual cost was nearly four times the cost of a commercial cruise, and the experience was very different. On this basis, the sheriff paid the contractor a quarter of the actual cost, making the rest a gift.

In addition, the general counsel told the sheriff not to bother reporting a three-hour cruise party on the yacht, which was a thank-you to campaign supporters (the sheriff invited 15 of the people at the party), because it was worth less than $100, even though it was an additional gift and the actual cost was $200 per person.

One of two things must be true. Either the general counsel was biased toward the sheriff and gave him information that would allow him to save money and say he acted on advice of counsel. Or the general counsel did not understand the valuing of gifts or did not ask the right questions or advise the sheriff to give him more information — in other words, the general counsel lacked government ethics expertise or was simply incompetent, and was not sufficiently aware of his limitations to suggest that the sheriff seek ethics advice elsewhere.

As long as officials can get their ethics advice from anyone they feel will be most sympathetic to them, and know the advice will protect them, there will be a lot of ethical misconduct. As it is now, the state EC takes advice of counsel into account only in determining the penalty for misconduct. SB 606 would allow advice of counsel to protect officials even from a finding of probable cause.

Most important is how the whole thing looks to the public. The comments to the article consistently see the story as an elected official getting away with a crime. People don't accept the advise of counsel defense. First, it is a government lawyer, paid for by the public to give advice partial to the official. Second, the lawyer is the son of another elected official and is now the sheriff's attorney, in other words a "crony." It looks not like vindication, but like complicity. And nothing either of them says can change this reasonable view of what occurred. The biggest problem is that the EC appears to be complicit, as well.

It doesn't help that the sheriff has trumpeted his vindication:  "I said from the beginning that I followed the law and acted correctly at all times, and this official outcome vindicates my prior statements." What the public sees is that probable cause was found, and then the EC dropped the case for what appears to be a specious reason.

Officials should be able to depend on advice of counsel. But when it comes to government ethics matters, this advice should come solely from a neutral, professional ethics adviser, not from any attorney the official chooses. Not only would the sheriff have received more professional advice. It also would have looked better to the public and the EC could have defended the advice, rather than dismissing it and then accepting it as a defense.

Changing the Gift Rule
This situation also points to a better solution to the gift disclosure rule than SB 606 provides (SB 606 would do away with gift disclosure, but place no ban on gifts). It appears that the contractor does not do business in Broward County, including with the sheriff's office. He might very well be a rich guy who really wanted to see his friend win the election. In this case, not only should the gift be legal, but it should not have to be disclosed, paid for, or anything else. The only question under a better gift rule, which banned gifts from interested parties, is whether the contractor intends to seek business with the sheriff's office and whether the gifts are within the campaign finance limits. A family cruise is certainly not a campaign contribution, but a post-election thank-you party might very well be. Changing the gift law to one that applies only to restricted sources might have saved the sheriff, and the public, some trouble.

Robert Wechsler
Director of Research-Retired, City Ethics

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