You are here
An Appreciative Look at the Draft Broward County Ethics Code for County Commissioners
Thursday, May 6th, 2010
Robert Wechsler
Update: May 12, 2010 (see below)
According to an article in Tuesday's Sun-Sentinel, Broward County (FL) Commissioner Ilene Lieberman feels that the ethics code written by a special commission on ethics (most of whose members were selected by the commissioners individually) was "drafted without proper research so as to avoid absurd and unintended consequences.'' As the incoming president of the Florida Association of Counties, this accusation carries some weight. Other commissioners seem to have the same concern, although their examples show no absurdities in the draft code. Here's an example of an example:
On Tuesday, the commissioners spent three hours raising concerns about the draft code (see live coverage of the meeting from the Sun-Sentinel site). So how bad is the code, which applies only to county commissioners? Actually, not bad at all, considering its limited goals (since the Florida ethics code applies to local officials, local governments don't have to have an all-purpose ethics code).
Problems with the Draft Code
The biggest problem with the code is that it is too bald a response to specific problems that have recently occurred in Broward County with respect to contracts and to relationships with lobbyists. For example, there have been problems with charitable solicitation (see my blog post from last year), resulting in an unusual provision on charitable solicitation.
It's good to learn from past mistakes and to use them to draft creative solutions, but it is not a best practice to too closely tailor ethics codes to problems in a particular jurisdiction. Broward County residents need only look at their local newspaper to find mistakes in neighboring jurisdictions they can learn from just as well. In short, the problem with the code is not what's in it, but what's been left out.
Description of Code Provisions
The draft code is pretty simple and succinct, and yet it includes ethics provisions, disclosure provisions, administration provisions, and a training provision.
It starts with a Standards of Conduct section, which includes provisions on gifts, outside employment, lobbying, honest services, charitable and campaign solicitation, procurement selection committees, and financial disclosure. The standards of conduct are supplemented by state ethics law, as well as the county's own lobbyist registration act and procurement code.
The draft code also has an Enforcement section, which includes the creation of an Inspector General's office, a hearing officer, and a selection-oversight committee completely independent of the board of commissioners. And there is a short Training section, with some pretty strenuous requirements, assuming there are some good continuing education courses around (the county isn't offering any, it appears).
Commissioners cannot accept gifts from lobbyists, vendors, or contractors of the county, and must report other gifts. They cannot lobby any local government entities in the county (I like the language at the end of this provision: "This form of employment and activity is deemed to be in substantial conflict with the proper discharge of a commissioner's duties in the public interest."). All other employment must be reported quarterly. Family members and staff cannot lobby before the board or other local governments in the county.
Both lobbyists and commissioners must quickly disclose their communications and meetings, to be placed in a searchable online database (along with commissioner's annual disclosure forms, required by the state).
Commissioners cannot be on or even participate or interfere with county procurement committees, at least until after a selection process has been completed (that is, they can complain after the fact, but no more).
State financial disclosure forms must be filed with the county and put online. This is something every local government should do. In addition, when commissioners solicit for other candidates, they must make disclosure, an unusual, but good requirement.
Problematic Provisions
The only problematic ethics provisions are (i) the honest services provision, which simply refers to the federal and state law of honest services, but does not give any indication whether the Inspector General will be investigating the deprivaton of honest services or turning such cases over to the authorities (which it could do anyway); and (ii) the charitable solicitation provision, which has the only truly vague language (a general accusation made by some commissioners): solicitation is permissible "so long as there is no quid pro quo or other special consideration, including any direct or indirect benefit between the parties to the solicitation." In addition, all charitable solicitations must be disclosed, and staff and resources cannot be employed in such solicitation, unless for county-sponsored charities or events.
It is true that the Inspector General can investigate whenever he or she feels that good cause exists, and this clearly worries the commissioners. But what is the alternative? The commissioners appear to want sworn complaints, but that would make it highly unlikely that those in the know — county employees — would give the IG valuable tips. Haven't the commissioners heard of ethics hotlines? This code would allow such a hotline to be set up, but does not require it, as many codes do. An IG, like any investigatory authority, depends on anonymous tips. That is one reason its investigations are kept confidential.
The most interesting aspect of the commissioners' reaction to the draft code is that, as much as they find it problematic, they want it to be applied not only to county employees, but also to other elected officials in the county, including both those in cities and towns, and state legislators.
More or Less Public Trust?
The most serious criticism is that the new setup will not increase public trust in government. "This has such a gotcha approach that in fact the opposite is going to happen. [It will be difficult] for you not to mess up, no matter how hard you try to do it right."
There are two different arguments here. Yes, the commissioners will mess up. But since there is a de minimis provision, the usual small mess-ups will not lead to any penalties.
The more important issue is whether the creation of an IG will lead to more or fewer scandals than Broward County has already had? There will likely be more investigations, but if the commissioners know enforcement is more likely, there should be many fewer instances of serious misconduct. The public doesn't care too much about the small mess-ups.
If the commissioners truly care about doing things right and gaining the public's trust under the new setup, they will keep the county attorney's office (or, better, an independent ethics officer appointed by the IG) very busy with questions about what to do and what not to do. Just as they did at Tuesday's meeting. If you want to stay out of trouble, it's not as hard as you think. You just have to accept that, as in one question that was asked on Tuesday, you can't go on a cruise with a lobbyist, even if she's really an old friend.
The Keep-Your-Hand-Off Clause
One thing in the code the commissioners clearly despise is a clause that prevents them from amending the code in order to weaken it or remove any of its provisions. This can only be done by citizen initiative. This is an excellent way to ensure that commissioners do not vote for something strong and then later find ways to weaken it. Already, some commissioners are talking about weaknesses of the code and their desire to strengthen it in ways that may, actually, weaken it, such as requiring sworn complaints. It will be interesting to see how this clause holds up to the cleverness and self-interest of elected officials.
Update: May 12, 2010
County Commissioner Ilene Lieberman called me in response to this blog post. She defended her statement that the ethics code for county commissioners was "drafted without proper research so as to avoid absurd and unintended consequences.''
One thing she said is that the ethics commission went beyond the authority given it by Charter §11.08 by having provisions in the code that applied not only to county commissioners, but also to their spouses and domestic partners. Here is the relevant part of the charter provision:
Lieberman also said, as I understood it, that the code is softer on violators of campaign finance provisions because it provides only for civil penalties, while state law provides for criminal penalties and, she said, local ordinances must be at least as strict as state statutes. She referred me to Chapter 106 of the Florida Statutes, but this appears to have lower civil fines (compare FL Statutes 106.265 and ethics code §1-19(d)(2)(a)(1) (p.24)), and the ordinance allows for incarceration up to 60 days (1-19(d)(2)(c)(1)) (note that one problem with the code is its numbering).
In addition, I could find no state law that says that local campaign finance ordinances have to be as strict or stricter, in content or penalty, as state laws (there is such a provision, however, for ethics codes, but it does not apply to penalties). An expert in the field, in Florida, wrote that the rule is that local campaign finance ordinances "cannot authorize that which the state prohibits – or prohibit that which the state specifically authorizes."
Lieberman also feels that there are first amendment free speech problems with the Broward County ethics code, but she did not elaborate. I found no free speech issues in this code.
Robert Wechsler
Director of Research-Retired, City Ethics
---
According to an article in Tuesday's Sun-Sentinel, Broward County (FL) Commissioner Ilene Lieberman feels that the ethics code written by a special commission on ethics (most of whose members were selected by the commissioners individually) was "drafted without proper research so as to avoid absurd and unintended consequences.'' As the incoming president of the Florida Association of Counties, this accusation carries some weight. Other commissioners seem to have the same concern, although their examples show no absurdities in the draft code. Here's an example of an example:
-
What if a commissioner, whose husband died last year, meets someone new
on an online dating site, starts a relationship, but decides not to
marry him. The new ethics code that regulates lobbying activities of
spouses and domestic partners wouldn't apply to her new beau, correct?
[By the way, the county attorney answered that hypothetical, No. See my
blog
post from yesterday on that very issue.]
On Tuesday, the commissioners spent three hours raising concerns about the draft code (see live coverage of the meeting from the Sun-Sentinel site). So how bad is the code, which applies only to county commissioners? Actually, not bad at all, considering its limited goals (since the Florida ethics code applies to local officials, local governments don't have to have an all-purpose ethics code).
Problems with the Draft Code
The biggest problem with the code is that it is too bald a response to specific problems that have recently occurred in Broward County with respect to contracts and to relationships with lobbyists. For example, there have been problems with charitable solicitation (see my blog post from last year), resulting in an unusual provision on charitable solicitation.
It's good to learn from past mistakes and to use them to draft creative solutions, but it is not a best practice to too closely tailor ethics codes to problems in a particular jurisdiction. Broward County residents need only look at their local newspaper to find mistakes in neighboring jurisdictions they can learn from just as well. In short, the problem with the code is not what's in it, but what's been left out.
Description of Code Provisions
The draft code is pretty simple and succinct, and yet it includes ethics provisions, disclosure provisions, administration provisions, and a training provision.
It starts with a Standards of Conduct section, which includes provisions on gifts, outside employment, lobbying, honest services, charitable and campaign solicitation, procurement selection committees, and financial disclosure. The standards of conduct are supplemented by state ethics law, as well as the county's own lobbyist registration act and procurement code.
The draft code also has an Enforcement section, which includes the creation of an Inspector General's office, a hearing officer, and a selection-oversight committee completely independent of the board of commissioners. And there is a short Training section, with some pretty strenuous requirements, assuming there are some good continuing education courses around (the county isn't offering any, it appears).
Commissioners cannot accept gifts from lobbyists, vendors, or contractors of the county, and must report other gifts. They cannot lobby any local government entities in the county (I like the language at the end of this provision: "This form of employment and activity is deemed to be in substantial conflict with the proper discharge of a commissioner's duties in the public interest."). All other employment must be reported quarterly. Family members and staff cannot lobby before the board or other local governments in the county.
Both lobbyists and commissioners must quickly disclose their communications and meetings, to be placed in a searchable online database (along with commissioner's annual disclosure forms, required by the state).
Commissioners cannot be on or even participate or interfere with county procurement committees, at least until after a selection process has been completed (that is, they can complain after the fact, but no more).
State financial disclosure forms must be filed with the county and put online. This is something every local government should do. In addition, when commissioners solicit for other candidates, they must make disclosure, an unusual, but good requirement.
Problematic Provisions
The only problematic ethics provisions are (i) the honest services provision, which simply refers to the federal and state law of honest services, but does not give any indication whether the Inspector General will be investigating the deprivaton of honest services or turning such cases over to the authorities (which it could do anyway); and (ii) the charitable solicitation provision, which has the only truly vague language (a general accusation made by some commissioners): solicitation is permissible "so long as there is no quid pro quo or other special consideration, including any direct or indirect benefit between the parties to the solicitation." In addition, all charitable solicitations must be disclosed, and staff and resources cannot be employed in such solicitation, unless for county-sponsored charities or events.
It is true that the Inspector General can investigate whenever he or she feels that good cause exists, and this clearly worries the commissioners. But what is the alternative? The commissioners appear to want sworn complaints, but that would make it highly unlikely that those in the know — county employees — would give the IG valuable tips. Haven't the commissioners heard of ethics hotlines? This code would allow such a hotline to be set up, but does not require it, as many codes do. An IG, like any investigatory authority, depends on anonymous tips. That is one reason its investigations are kept confidential.
The most interesting aspect of the commissioners' reaction to the draft code is that, as much as they find it problematic, they want it to be applied not only to county employees, but also to other elected officials in the county, including both those in cities and towns, and state legislators.
More or Less Public Trust?
The most serious criticism is that the new setup will not increase public trust in government. "This has such a gotcha approach that in fact the opposite is going to happen. [It will be difficult] for you not to mess up, no matter how hard you try to do it right."
There are two different arguments here. Yes, the commissioners will mess up. But since there is a de minimis provision, the usual small mess-ups will not lead to any penalties.
The more important issue is whether the creation of an IG will lead to more or fewer scandals than Broward County has already had? There will likely be more investigations, but if the commissioners know enforcement is more likely, there should be many fewer instances of serious misconduct. The public doesn't care too much about the small mess-ups.
If the commissioners truly care about doing things right and gaining the public's trust under the new setup, they will keep the county attorney's office (or, better, an independent ethics officer appointed by the IG) very busy with questions about what to do and what not to do. Just as they did at Tuesday's meeting. If you want to stay out of trouble, it's not as hard as you think. You just have to accept that, as in one question that was asked on Tuesday, you can't go on a cruise with a lobbyist, even if she's really an old friend.
The Keep-Your-Hand-Off Clause
One thing in the code the commissioners clearly despise is a clause that prevents them from amending the code in order to weaken it or remove any of its provisions. This can only be done by citizen initiative. This is an excellent way to ensure that commissioners do not vote for something strong and then later find ways to weaken it. Already, some commissioners are talking about weaknesses of the code and their desire to strengthen it in ways that may, actually, weaken it, such as requiring sworn complaints. It will be interesting to see how this clause holds up to the cleverness and self-interest of elected officials.
Update: May 12, 2010
County Commissioner Ilene Lieberman called me in response to this blog post. She defended her statement that the ethics code for county commissioners was "drafted without proper research so as to avoid absurd and unintended consequences.''
One thing she said is that the ethics commission went beyond the authority given it by Charter §11.08 by having provisions in the code that applied not only to county commissioners, but also to their spouses and domestic partners. Here is the relevant part of the charter provision:
-
There shall be a Broward County Ethics Commission whose sole purpose
shall be to establish a Code of Ethics for the Broward County
Commission.
Lieberman also said, as I understood it, that the code is softer on violators of campaign finance provisions because it provides only for civil penalties, while state law provides for criminal penalties and, she said, local ordinances must be at least as strict as state statutes. She referred me to Chapter 106 of the Florida Statutes, but this appears to have lower civil fines (compare FL Statutes 106.265 and ethics code §1-19(d)(2)(a)(1) (p.24)), and the ordinance allows for incarceration up to 60 days (1-19(d)(2)(c)(1)) (note that one problem with the code is its numbering).
In addition, I could find no state law that says that local campaign finance ordinances have to be as strict or stricter, in content or penalty, as state laws (there is such a provision, however, for ethics codes, but it does not apply to penalties). An expert in the field, in Florida, wrote that the rule is that local campaign finance ordinances "cannot authorize that which the state prohibits – or prohibit that which the state specifically authorizes."
Lieberman also feels that there are first amendment free speech problems with the Broward County ethics code, but she did not elaborate. I found no free speech issues in this code.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Story Topics:
- Robert Wechsler's blog
- Log in or register to post comments