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Broward County IG Report on Countywide Ethics Program
Monday, February 3rd, 2014
This week, the Broward County (FL) inspector general filed a
Review of the Existing Ethics Structure (attached; see below) of the countywide
ethics program that he oversees, and which came into being via
charter amendments overwhelmingly approved by the county's voters in late 2010.
The 21-page report focuses on a two-part reform recommendation: (1) an ethics
officer who would uniformly interpret the Code and provide
precedential advisory opinions, and (2) a panel to decide on appeals
and review the ethics program.
The IG calls for reform in two phases. First, improvement of the program's structure "to ensure consistent and impartial guidance, training, and enforcement." Second, "periodic, independent, and public consideration of the policies themselves and any necessary substantive corrections or revisions to the Code."
I think this is the right approach. Most ethics reform focuses on rules rather than structure and process. But rules are not the most important part of an ethics program. Advice and training are more important, as is the independence of the ethics program and its monopoly over interpretation of the ethics code, so that guidance is clear, consistent, and provided by individuals who are not themselves conflicted due to relationships with officials.
Early Responses from Officials
It is not surprising that the early responses to the report from officials in the county focus on the rules. According to an article in the Sun-Sentinel, a city commissioner starts out his statement by saying, "Broward County's ethics ordinance is poorly crafted and contains numerous vague and legally unenforceable provisions. It needs a total rewrite." A mayor's statement echoes this: "[I]t doesn't surprise me that this has happened because the law is so badly flawed."
The IG report anticipates this criticism and responds to it clearly and correctly: "Ultimately it is the public that is most harmed by a system which contains ambiguities, yet provides no mechanism for uniform resolution." All laws have ambiguities. What is needed is consistent and public interpretation of the rules to provide the necessary guidance.
When I looked back at my blog posts about the original draft of the county's ethics code (see, for example, this one), I found that local officials were saying the same thing. They complained about every aspect of the code, and called it "a gotcha approach." I wrote back in 2010, "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."
Instead of pushing for an ethics officer to give them good, consistent guidance, the county government's leaders did everything they could to undermine the code. The county attorney tried to have it declared unconstitutional. The county commissioners tried to pass a "glitch ordinance" that would have illegally weakened the code.
Here's how Fred Grimm began his Miami Herald column on the "glitch ordinance": "You've got to appreciate the brazen hand behind this latest attempt to eviscerate ethics reform in Broward County. Same way you watch, with perverse fascination, horror movie villains creeping back from oblivion to wreak more mayhem."
The response to the IG's report has to be viewed against this background. Although the report focuses on structure and process, it appears that local officials will use this occasion to "wreak more mayhem" on the substantive aspects of the program. It's worth noting that as recently as October 2012, the county mayor called for the removal of an ethics provision that prohibited county commissioners from sitting on bid committees. Also in 2012, officials in some cities in Broward County drafted referendum questions to strike the applicability of certain of the code's provisions to their cities' officials, and in 2011 the Broward League of Cities made some poor ethics recommendations. These attempts haven't gone too far yet, but it seems that the IG report may be used as leverage to open up these issues again. It will be interesting to see how the Broward League of Cities' ethics task force responds to the report (the League has promised such a response), especially considering the reaction to the horrible ethics "reforms" the state League of Cities lobbied to get in SB 606.
Ethics Advice
The central issue examined in the report is the current system of having dozens of city and county attorneys provide ethics advice. The IG report sought two expert opinions on this issue, mine and that of Joseph Centorino, who heads the Miami-Dade County ethics program (the opinion letters are attached to the report). The four biggest problems with allowing government attorneys to provide ethics advice are consistency, bias (and the appearance of bias), confidentiality, and competence. The IG focuses on consistency and bias. But with respect to competence, it needs to be recognized that few government attorneys have sufficient training and experience in government ethics to provide professional ethics advice. The IG did list problems with advice he was able to review, including (1) advice that sanctioned past conduct (ethics advice only deals with prospective conduct); (2) advice not grounded in facts as submitted by the requester; and (3) advice that did not appear to subordinate the official’s interest to the public’s interest. These are signs of incompetence.
My last blog post looked at botched ethics advice given to the Broward county sheriff by a county attorney. The problems there include apparent bias, competence, and consistency.
The IG adds a fifth major problem with government attorneys providing ethics advice, which I haven't emphasized. This approach leaves out many groups of individuals and entities that have a need for such advice, but are not considered clients of a government attorney, including potential candidates for office, lobbyists, contractors, and those seeking permits. "These individuals and organizations have no way to obtain advice on the conduct they may or may not engage in." I would add that they also have no way to obtain advice about the conduct of officials they are working with (this can be very useful when officials fail to seek advice), and that leaving these individuals and entities out of an ethics program makes it far more likely that officials will be tempted into ethical misconduct.
The Confidentiality of Ethics Advice
Confidentiality is especially a problem when government attorneys provide ethics advice, because they are so deeply attached to it. The level of confidentiality government attorneys desire can be seen in a footnote to the report: "The OIG wrote to all of Broward’s municipal attorneys in December of 2012, asking for feedback on a proposal for us to provide a clearinghouse for all the entities’ ethics opinions to (1) allow the OIG to understand the common ethics issues and the legal reasoning behind the opinions, and (2) allow the attorneys to benefit from previously undertaken research and analysis. Only one attorney responded that he would participate in such an effort." If someone doesn't even want to let the IG and fellow government attorneys know about the ethics advice he gives, he has a very deep-seated belief that the absolute confidentiality of an official's personal conflicts of interest overrides the good of the community.
Without the sharing of advice, government attorneys can neither provide consistency nor gain experience through others' consideration of ethics issues. Without public access to ethics advice (which is common in well-run ethics programs), the same questions have to be asked again and again. It's no wonder that there have been so many more ethics opinions provided in Broward County than elsewhere. The city commissioner says, "The reason is obvious. The ordinance is so horribly written." No, the reason is that each opinion is hidden from every other attorney and official in the county. There is no learning process.
Ethics Review Panel
There is one recommendation in the report that I don't agree with: the creation of an Ethics Review Panel "for several limited, but significant functions. The Panel would review the Ethics Officer’s advisory opinions on appeal, review the Ethics Officer’s hearing decisions on appeal, conduct a periodic review of ethics policies and the ethics structure, and make recommendations for revisions to the Code or public integrity structure."
My objections to this idea are primarily practical. Who is going to want to sit on a panel that only deals with ethics appeals and reviews ethics policies? It's hard enough to get people to sit on an ethics commission. This limited and more technical work is even less attractive. Also, it is unusual to give a body so much power, as the final arbiter of interpreting and criticizing the ethics code, without it taking any other role in the ethics program and without it, apparently, having a staff. I wonder how this group of volunteers would gain the knowledge and experience necessary to make such important interpretations and useful criticism.
It is common to allow an ethics officer's advice to be appealed to an ethics commission, but this is a working body that deals with ethics matters regularly and has access to professional staff. In any event, there are, or should be, limits on what can be appealed and what needs to be shown in order to make an appeal. Click here for my discussion of this in my book Local Government Ethics Programs.
It's important to recognize that, in most cases when an ethics officer advises that an official not engage in certain conduct, an appeal of this advice is actually the same thing as a request for a waiver. The difference between a request for a waiver and a request for ethics advice is that a request for a waiver recognizes that conduct is prohibited. Once an ethics officer has said than conduct is prohibited, that difference disappears.
So if a panel is formed to deal with appeals of ethics advice, it should also deal with requests for waivers. With all of these jobs under its belt, why not simply make it an ordinary ethics commission, with the job of making formal advisory opinions and hearing ethics complaints? What is the argument for dividing up these responsibilities, so that the panel fails to get sufficient experience and will likely have trouble getting qualified members?
While I think it's good for an ethics commission (with its professional staffing) to review and make recommendations regarding the ethics program on an annual basis, I don't think that, with all the pressures and antagonism to the program in Broward County, it would be best to let a citizens ethics panel take the next step of recommending substantive changes to the ethics code. It would be better if these recommendations were to come from the IG's office, based on its experience with the program, its research, and input from citizens and government ethics experts, as happened with this report.
Opting Out
From the beginning, officials have been doing what they can to opt out of this ethics program, and the ethics code provides them with multiple loopholes. The IG recommends closing two of these loopholes. One is to add constitutional officers to the ethics code (the county charter already includes them, so there is an inconsistency). These officers include the sheriff, the property appraiser, the supervisor of elections, and the clerk of the circuit court.
The other IG recommendation is to add to what the county charter says about which law prevails. As it is now, the ethics code expressly prevails over conflicting municipal ordinances, but the provision does not mention municipal charters. Therefore, several municipal charters have been amended to exempt municipal officials from specific provisions of the Code. The IG report says that, "conceivably, this mechanism could also be used to wholly opt out of the Code."
Robert Wechsler
Director of Research-Retired, City Ethics
---
The IG calls for reform in two phases. First, improvement of the program's structure "to ensure consistent and impartial guidance, training, and enforcement." Second, "periodic, independent, and public consideration of the policies themselves and any necessary substantive corrections or revisions to the Code."
I think this is the right approach. Most ethics reform focuses on rules rather than structure and process. But rules are not the most important part of an ethics program. Advice and training are more important, as is the independence of the ethics program and its monopoly over interpretation of the ethics code, so that guidance is clear, consistent, and provided by individuals who are not themselves conflicted due to relationships with officials.
Early Responses from Officials
It is not surprising that the early responses to the report from officials in the county focus on the rules. According to an article in the Sun-Sentinel, a city commissioner starts out his statement by saying, "Broward County's ethics ordinance is poorly crafted and contains numerous vague and legally unenforceable provisions. It needs a total rewrite." A mayor's statement echoes this: "[I]t doesn't surprise me that this has happened because the law is so badly flawed."
The IG report anticipates this criticism and responds to it clearly and correctly: "Ultimately it is the public that is most harmed by a system which contains ambiguities, yet provides no mechanism for uniform resolution." All laws have ambiguities. What is needed is consistent and public interpretation of the rules to provide the necessary guidance.
When I looked back at my blog posts about the original draft of the county's ethics code (see, for example, this one), I found that local officials were saying the same thing. They complained about every aspect of the code, and called it "a gotcha approach." I wrote back in 2010, "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."
Instead of pushing for an ethics officer to give them good, consistent guidance, the county government's leaders did everything they could to undermine the code. The county attorney tried to have it declared unconstitutional. The county commissioners tried to pass a "glitch ordinance" that would have illegally weakened the code.
Here's how Fred Grimm began his Miami Herald column on the "glitch ordinance": "You've got to appreciate the brazen hand behind this latest attempt to eviscerate ethics reform in Broward County. Same way you watch, with perverse fascination, horror movie villains creeping back from oblivion to wreak more mayhem."
The response to the IG's report has to be viewed against this background. Although the report focuses on structure and process, it appears that local officials will use this occasion to "wreak more mayhem" on the substantive aspects of the program. It's worth noting that as recently as October 2012, the county mayor called for the removal of an ethics provision that prohibited county commissioners from sitting on bid committees. Also in 2012, officials in some cities in Broward County drafted referendum questions to strike the applicability of certain of the code's provisions to their cities' officials, and in 2011 the Broward League of Cities made some poor ethics recommendations. These attempts haven't gone too far yet, but it seems that the IG report may be used as leverage to open up these issues again. It will be interesting to see how the Broward League of Cities' ethics task force responds to the report (the League has promised such a response), especially considering the reaction to the horrible ethics "reforms" the state League of Cities lobbied to get in SB 606.
Ethics Advice
The central issue examined in the report is the current system of having dozens of city and county attorneys provide ethics advice. The IG report sought two expert opinions on this issue, mine and that of Joseph Centorino, who heads the Miami-Dade County ethics program (the opinion letters are attached to the report). The four biggest problems with allowing government attorneys to provide ethics advice are consistency, bias (and the appearance of bias), confidentiality, and competence. The IG focuses on consistency and bias. But with respect to competence, it needs to be recognized that few government attorneys have sufficient training and experience in government ethics to provide professional ethics advice. The IG did list problems with advice he was able to review, including (1) advice that sanctioned past conduct (ethics advice only deals with prospective conduct); (2) advice not grounded in facts as submitted by the requester; and (3) advice that did not appear to subordinate the official’s interest to the public’s interest. These are signs of incompetence.
My last blog post looked at botched ethics advice given to the Broward county sheriff by a county attorney. The problems there include apparent bias, competence, and consistency.
The IG adds a fifth major problem with government attorneys providing ethics advice, which I haven't emphasized. This approach leaves out many groups of individuals and entities that have a need for such advice, but are not considered clients of a government attorney, including potential candidates for office, lobbyists, contractors, and those seeking permits. "These individuals and organizations have no way to obtain advice on the conduct they may or may not engage in." I would add that they also have no way to obtain advice about the conduct of officials they are working with (this can be very useful when officials fail to seek advice), and that leaving these individuals and entities out of an ethics program makes it far more likely that officials will be tempted into ethical misconduct.
The Confidentiality of Ethics Advice
Confidentiality is especially a problem when government attorneys provide ethics advice, because they are so deeply attached to it. The level of confidentiality government attorneys desire can be seen in a footnote to the report: "The OIG wrote to all of Broward’s municipal attorneys in December of 2012, asking for feedback on a proposal for us to provide a clearinghouse for all the entities’ ethics opinions to (1) allow the OIG to understand the common ethics issues and the legal reasoning behind the opinions, and (2) allow the attorneys to benefit from previously undertaken research and analysis. Only one attorney responded that he would participate in such an effort." If someone doesn't even want to let the IG and fellow government attorneys know about the ethics advice he gives, he has a very deep-seated belief that the absolute confidentiality of an official's personal conflicts of interest overrides the good of the community.
Without the sharing of advice, government attorneys can neither provide consistency nor gain experience through others' consideration of ethics issues. Without public access to ethics advice (which is common in well-run ethics programs), the same questions have to be asked again and again. It's no wonder that there have been so many more ethics opinions provided in Broward County than elsewhere. The city commissioner says, "The reason is obvious. The ordinance is so horribly written." No, the reason is that each opinion is hidden from every other attorney and official in the county. There is no learning process.
Ethics Review Panel
There is one recommendation in the report that I don't agree with: the creation of an Ethics Review Panel "for several limited, but significant functions. The Panel would review the Ethics Officer’s advisory opinions on appeal, review the Ethics Officer’s hearing decisions on appeal, conduct a periodic review of ethics policies and the ethics structure, and make recommendations for revisions to the Code or public integrity structure."
My objections to this idea are primarily practical. Who is going to want to sit on a panel that only deals with ethics appeals and reviews ethics policies? It's hard enough to get people to sit on an ethics commission. This limited and more technical work is even less attractive. Also, it is unusual to give a body so much power, as the final arbiter of interpreting and criticizing the ethics code, without it taking any other role in the ethics program and without it, apparently, having a staff. I wonder how this group of volunteers would gain the knowledge and experience necessary to make such important interpretations and useful criticism.
It is common to allow an ethics officer's advice to be appealed to an ethics commission, but this is a working body that deals with ethics matters regularly and has access to professional staff. In any event, there are, or should be, limits on what can be appealed and what needs to be shown in order to make an appeal. Click here for my discussion of this in my book Local Government Ethics Programs.
It's important to recognize that, in most cases when an ethics officer advises that an official not engage in certain conduct, an appeal of this advice is actually the same thing as a request for a waiver. The difference between a request for a waiver and a request for ethics advice is that a request for a waiver recognizes that conduct is prohibited. Once an ethics officer has said than conduct is prohibited, that difference disappears.
So if a panel is formed to deal with appeals of ethics advice, it should also deal with requests for waivers. With all of these jobs under its belt, why not simply make it an ordinary ethics commission, with the job of making formal advisory opinions and hearing ethics complaints? What is the argument for dividing up these responsibilities, so that the panel fails to get sufficient experience and will likely have trouble getting qualified members?
While I think it's good for an ethics commission (with its professional staffing) to review and make recommendations regarding the ethics program on an annual basis, I don't think that, with all the pressures and antagonism to the program in Broward County, it would be best to let a citizens ethics panel take the next step of recommending substantive changes to the ethics code. It would be better if these recommendations were to come from the IG's office, based on its experience with the program, its research, and input from citizens and government ethics experts, as happened with this report.
Opting Out
From the beginning, officials have been doing what they can to opt out of this ethics program, and the ethics code provides them with multiple loopholes. The IG recommends closing two of these loopholes. One is to add constitutional officers to the ethics code (the county charter already includes them, so there is an inconsistency). These officers include the sheriff, the property appraiser, the supervisor of elections, and the clerk of the circuit court.
The other IG recommendation is to add to what the county charter says about which law prevails. As it is now, the ethics code expressly prevails over conflicting municipal ordinances, but the provision does not mention municipal charters. Therefore, several municipal charters have been amended to exempt municipal officials from specific provisions of the Code. The IG report says that, "conceivably, this mechanism could also be used to wholly opt out of the Code."
Robert Wechsler
Director of Research-Retired, City Ethics
---
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