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Florida League of Cities' Ethics Reform Proposals I - Preventing the Filing of Complaints
Monday, January 27th, 2014
Florida
Senate Bill 606 (attached; see below) is one of the worst ethics reform bills I have
ever read. But it is far worse than the words it consists of. What
makes it worse is that, with respect to laws that affect local officials, it is largely the work of the Florida League of Cities
(this was confirmed to me by representatives of both the League and
state senator Jeff Clemens, the bill's sponsor). It is work like
this that leads me to question whether local government associations
should be permitted to lobby on matters involving government ethics.
This issue will be dealt with in the last of the blog posts related
to the bill.
Penalties on the Complainant
It's hard to know where to start. So I'll start with the most insidious proposal — an additional penalty on complainants — because here the League of Cities has shown a level of cleverness that I have not seen elsewhere. Unfortunately, the League's cleverness has been employed to get around a 1988 decision striking down the very same penalty on complainants, based on First Amendment free speech rights.
No member of the public thinks that the biggest ethics problem in Florida, a state generally considered the most corrupt state in the union (824 convicted officials from 1998-2007, and a lot more since and pending), is ethics complaints with false statements in them or ethics complainants publicizing the fact that they have filed their complaints. But every government official who wants to undermine ethics enforcement knows that the best way to do this — besides not allowing ethics commissions to initiate investigations without a formal complaint — is to add the threat of onerous costs on any complainant who may have negligently made a false statement in her complaint. After all, every single one of us knows this is something we ourselves might do, since we have limited information, make mistakes, don't really understand an issue, depend on what others tell us, etc. If I knew that I might have to pay costs, attorney fees, and a fine, I would not file an ethics complaint myself.
But the League of Cities presents the matter differently. In its press release supporting SB 606, the League wrote that the bill "protects public officials from those who have an ax to grind and file a false ethics complaint." Actually, the ethics code already makes such a complainant liable for costs and reasonable attorney fees, including costs and attorney fees spent in proving that the complainant must pay costs and fees. This means that, as the law is today, a complainant may already have to pay many thousands of dollars. Here's the language already in the state ethics code:
What the League does not say in its press release is that it believes this huge potential penalty is not enough to protect its members from ax-wielding complainants (not to mention the merely pen-wielding ones). The League wants yet another penalty on the books. The League's proposed language clarifies that malicious intent can be determined merely by "reckless disregard" for whether the complaint contains false allegations, and then adds a second penalty:
The Constitutionality of Penalizing Disclosure of Ethics Allegations
The second problem with the League of Cities' position is that it is unconstitutional to prevent individuals from disclosing their ethics allegations. Doe v. Gonzales, 723 F. Supp. 690 (S.D.Fla. 1988) found the following state provision unconstitutional:
At first I didn't see the "nuance." The main difference seemed to be that instead of a misdemeanor, there is a civil penalty. This couldn't make a difference with respect to the First Amendment, could it?
And then it came to me. The language is essentially the same. It's the context that is different. Especially the word "and" between (a) and (b). The civil penalty can be imposed only if the complainant both discloses the complaint and the complainant made false allegations with malicious intent. In other words, the extra penalty is not for disclosing a complaint, it's for disclosing a maliciously false complaint, which is defamation. And defamation is not protected by the First Amendment. That is a clever way to get around Doe v. Gonzales. I applaud the League's legal counsel for thinking this up.
Penalties on Complainants Are Intended to Reduce the Number of Complaints
But this still leaves the question, Why is it so important to the League of Cities to add a large penalty to one that is already pretty large? Is their problem that the current law hasn't sufficiently put a stop to the filing of ethics complaints, especially with respect to local officials? In 2013, 210 complaints were filed with the state EC, and nearly two-thirds of them were filed against local government officials. No one knows how many would have been filed without the current penalties on complainants.
What is important about the new penalty is that it is not on the filing of complaints, but rather on their disclosure. If the League can't put a stop to complaints from being filed against its members, it can at least do its best to prevent the public from knowing about the complaints that are filed. What better way than to legally place in the ethics code an otherwise unconstitutional penalty for disclosing a complaint? Yes, if you read the amended provision carefully, you will realize that it is only false complaints that can't be disclosed, but (1) many people won't read it this closely, (2) this ban on disclosure will make them more likely to read and worry about the penalty for "reckless disregard" for the truth, and recognize that mere negligence, not what the rest of us think of as "malice," is sufficient to severely penalize a complainant, and (3) even those who understand the whole thing are more likely to decide it's just not worth filing a complaint, that the system has been designed to protect officials, not the public. That is the last impression an ethics code should make, but that is how it would be if the League of Cities has its way.
Nastiness Need Not Be Met with More Nastiness
I understand how annoying it is to have an ethics complaint filed against you by a political opponent, and then have the opponent hold a press conference before you've even received a copy of the complaint. That's a nasty thing to do. And it's even nastier if the allegations aren't true.
But is it any less nasty to, in the name of protecting officials from ax-wielding complainants, propose an ethics code amendment that will have a chilling effect both on the transparency of ethics proceedings (transparency being one of the principal values of government ethics) and on the filing of ethics complaints? And is it any less nasty to threaten to heap costs, attorney fees, and civil penalties on a complainant who makes a mistake, lacks all the information, or depends on what he has been told, and is found to have acted negligently with respect to the truth (something, thank goodness, government officials are never, ever guilty of)?
The Best Practice with Respect to False Allegations
To put this whole thing into perspective, we need to recognize what a complaint is. A complaint is just a way to get an ethics proceeding rolling. No investigation is required of a complainant. That is done by the ethics commission. In fact, once a complaint has been filed, its allegations are wholly in the hands of the ethics commission, which can dismiss them (singly or wholly) at any time and thereby make the official look good and the complainant look bad. This is the most common penalty for filing false allegations in American local government ethics programs.
Not only is it common, but it is a best practice, and the League of Cities should explain why Florida should go further from a best practice than it already is. Is it Florida's exceptional record of corrupt officials that make them more worthy of protection than they are in other states? Is this proposal, then, simply another example of local official corruption in Florida, putting their personal interests before the public interest?
Why Involve an Ethics Commission with Intent, Defamation, and External Statements?
One of the things that distinguishes ethics proceedings is that they do not deal with intent and motive. It doesn't matter why an official accepts an illegal gift. It doesn't matter whether an official would help or hinder his sister's company, or whether he was given a job with a contractor because he helped it or not. An official is supposed to withdraw from matters involving his sister's company and may not take a job with a contractor with which he was involved as an official. Period. No motivation questions asked.
This is another reason why a malicious intent provision does not belong in an ethics code. This is not the kind of determination ECs are supposed to make about officials. Why should they make such determinations about citizens?
In addition, ECs are only supposed to make determinations involving conflicts of interest issues. Defamation is not a conflict of interest issue. If officials want to sue for defamation, they may do so, and the legal language is the same. The only difference is that suing for defamation in an ethics proceeding puts the burden on the EC, rather than on the plaintiff, and allows the determination to be made via an administrative rather than judicial process. That is, it is less expensive for the official and provides less due process to the complainant. There is a judicial process, which is considered sufficient for other purposes. Why does the League of Cities feel another process is needed so badly for matters that affect only its members?
Why is it so important that the ethics commission should be a referee of allegations in any way other than dismissing them, finding probable cause, or finding an ethics violation did or did not occur? Any statement the complainant makes publicly about ethics allegations has nothing to do with the ethics proceeding and should be ignored by those involved, just as in a criminal proceeding.
The fact is that the League of Cities knows that how rarely an ethics commission will be called on to make decisions regarding defamation or to referee complainants' public statements. That isn't really what this is about. According to the Digital Media Law Project, "in only a handful of cases over the last decades have plaintiffs been successful in establishing the requisite actual malice to prove defamation" against a public figure. One of the things that distinguishes America from most countries is that citizens here are free to say what they want about public figures, including government officials, without the fear of defamation suits. This has its downsides, but movie stars, athletes, and business executives are not calling for more protection. And they do not have a fiduciary duty to the public, as government officials do. Why is it that Florida local officials, who do have this fiduciary duty, are the ones saying they are not sufficiently protected by the law, and need to have recourse to the ethics commission?
The answer is, Because they want to scare people off from filing ethics complaints. The only other answer is that they support the American legal system less than movie stars do.
A Couple of Scenarios
Here is a scenario of what might happen if the League of Cities were to get its way. A complainant learns about serious ethical misconduct among a group of officials and brings it to the attention of the EC. However, in writing her complaint, she has reckless disregard for the truth of one allegation (that is, she entertained doubts about the validity of a stated fact, but included it anyway, believing the likelihood of its truth was sufficient to enable the EC to investigate and determine its truth). When the EC sits on the complaint for a long time, the complainant permits someone who helped to draft the complaint put the complaint online. Four of the six allegations in the complaint lead to findings of ethics violations after a hard-fought proceeding. The League of Cities would want the EC to have to go through a second long proceeding, which would end with this heroic whistleblower paying costs, the five respondents' attorney fees for defense against the allegations and for their vengeful motion to have the complainant found guilty of a false statement, and another penalty on top of that for allowing an ally to let the public know about the complaint.
Let's contrast this example to that of an official who has helped get his brother a big government contract. This official, who has a fiduciary duty to the public that a complainant lacks and who is, unlike the complainant, the subject of the ethics code, pays only his own attorney fees. I don't know how it works with Florida's local governments, but across the country many local governments pick up an official's attorney fees, so the official may be off the hook even for these. In addition, the official can make factual misrepresentations right and left, including false allegations, and say anything he wants to the public, and the EC can do nothing about it.
Of course, the League of Cities' proposal is not really about hurting whistleblowers. It's about limiting the number of whistleblowers, the number of allegations they make, and their freedom to speak publicly about their allegations, especially when they feel that the EC is not doing a good enough job with them.
Publicly Dismissing False Allegations Is in Everyone's Best Interest
It is not in the public interest to prevent uncertain allegations from being made. It is in the public interest for uncertain allegations to be made and investigated and, if they prove not to be true, publicly dismissed, so the official is shown not to have done anything wrong, and the complainant is humiliated.
One of the reasons it is important to have an ethics program, for everyone's sake, is to quickly dismiss false allegations. Without an ethics program, false allegations can be made anonymously anywhere and everywhere. With an ethics program, the response to such allegations is, "Okay, then file an ethics complaint." If one isn't filed, it's an admission that the allegations aren't true. But if you have serious penalties for filing a complaint, one who makes false allegations can honestly say that she is afraid that one of her statements may be found to have been false, and that she could be on the hook for huge costs and fees and penalties.
If everything is kept confidential, how can a complainant say to the blogosphere arguing about an official's guilt, "Hey, wait, I filed an ethics complaint. Let's let the EC decide on my allegations." That's the responsible thing to do, but the League of Cities doesn't want it to happen. It sees everything as politics because, guess what, its members are politicians. But it's not all politics, and even when it is, it's useful. Isn't that pretty much a description of our democratic system. Secrecy and penalties to prevent whistleblowing is supposed to be the Russian form of government, not ours.
How to Reform This Provision
The best ethics reform would be to strike the entire provision. This is effectively what I recommend in my book Local Government Ethics Programs (for false complaints, click here and go to the seventh subsection; for a long discussion of the confidentiality of ethics proceedings, click here).
Another effective ethics reform would be to allow citizens to make tips to the EC, and allow the EC to determine, after a preliminary investigation, whether it is appropriate to begin an ethics proceeding without a formal complaint. This allows uncertain complainants to provide information without fear of huge damages if they're wrong.
The League of Cities' Irresponsible Conduct
I'm sure that the local government ethics experts at the League of Cities were as much aware of these options as they were of the unconstitutionality of the language they proposed adding back into the ethics code. They say in their press release that their goal is to make the Florida code "a model for the country." Instead, it would be a model for what not to do, the government ethics equivalent of directions on building a bomb.
I use this extreme metaphor because the League of Cities' proposal is deeply irresponsible. This is what it is saying to the public. One, we local officials want to turn a program intended to provide oversight over us into a program to provide oversight over any of you who are rash enough to want to provide information that will allow the EC to fulfill its enforcement obligations. Two, we local officials want to make the consequences of negligent falsity by a citizen complainant as bad or worse than what could happen to us officials when we commit ethics violations. Consider a roughly equivalent law that penalizes a murder witness as much or more than the murderer himself, because the witness is found to have had reckless disregard of the truth of one of the facts he gives to the police (even though he pointed the finger at the actual murderer). How fair is that? And three, we local officials think that all this is worth the chilling effect it will have on all the citizens who will be afraid to file an ethics complaint in order to hold us accountable for our misconduct. In fact, this is all about the chilling effect.
What the League of Cities has proposed is not "tough ethics reform," which is what it says in its press release. It is worse than any individual official's ethical misconduct. It is systemic ethical misconduct, putting the personal interest of all local officials in not being the subject of ethics complaints ahead of the public interest in the EC providing effective prevention and enforcement of the state's ethics laws.
The League of Cities should not only ask Sen. Clemens to withdraw this proposal. It should apologize to the public for having recommended it, and it should swear never to lobby on government ethics topics again. I will discuss the lobbying issue further in the last blog post on this bill.
Part II - Gifts, Ethics Advice, and Training
Part III - Placing Shackles on Countywide Ethics Programs
Part IV - Local Govt. Associations Should Not Lobby re Conflicts of Interest
Robert Wechsler
Director of Research-Retired, City Ethics
---
Penalties on the Complainant
It's hard to know where to start. So I'll start with the most insidious proposal — an additional penalty on complainants — because here the League of Cities has shown a level of cleverness that I have not seen elsewhere. Unfortunately, the League's cleverness has been employed to get around a 1988 decision striking down the very same penalty on complainants, based on First Amendment free speech rights.
No member of the public thinks that the biggest ethics problem in Florida, a state generally considered the most corrupt state in the union (824 convicted officials from 1998-2007, and a lot more since and pending), is ethics complaints with false statements in them or ethics complainants publicizing the fact that they have filed their complaints. But every government official who wants to undermine ethics enforcement knows that the best way to do this — besides not allowing ethics commissions to initiate investigations without a formal complaint — is to add the threat of onerous costs on any complainant who may have negligently made a false statement in her complaint. After all, every single one of us knows this is something we ourselves might do, since we have limited information, make mistakes, don't really understand an issue, depend on what others tell us, etc. If I knew that I might have to pay costs, attorney fees, and a fine, I would not file an ethics complaint myself.
But the League of Cities presents the matter differently. In its press release supporting SB 606, the League wrote that the bill "protects public officials from those who have an ax to grind and file a false ethics complaint." Actually, the ethics code already makes such a complainant liable for costs and reasonable attorney fees, including costs and attorney fees spent in proving that the complainant must pay costs and fees. This means that, as the law is today, a complainant may already have to pay many thousands of dollars. Here's the language already in the state ethics code:
112.317 Penalties.—An Additional Penalty
If the commission determines that a person has filed a complaint against a public officer or employee with a malicious intent to injure the reputation of such officer or employee, which intent may be shown by the filing of the complaint with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation of this part:,
(a) The complainant is liable for costs and reasonable attorney fees incurred in the defense of the person complained against, including the costs and reasonable attorney fees incurred in proving entitlement to and the amount of costs and fees.
What the League does not say in its press release is that it believes this huge potential penalty is not enough to protect its members from ax-wielding complainants (not to mention the merely pen-wielding ones). The League wants yet another penalty on the books. The League's proposed language clarifies that malicious intent can be determined merely by "reckless disregard" for whether the complaint contains false allegations, and then adds a second penalty:
(b) If the commission further finds the complainant willfully disclosed, or permitted to be disclosed, the existence or contents of the complaint, or any document, action, or proceeding in connection with a preliminary investigation of the commission, before such complaint, document, action, or proceeding became a public record as provided in this part, the commission shall impose on the complainant a civil penalty of not less than $1,000 but not more than $5,000.Now, one might argue that if a complainant has made false allegations and, on top of that, has actually disclosed these allegations to the public, he's acting purely for political purposes and deserves what he gets. But there are two problems with this. One is that it doesn't matter what the complainant's purposes are. Many valuable ethics complaints are filed for political purposes, even by people with an ax to grind. After all, besides journalists, who other than government officials and employees, and political operatives and junkies, closely follow officials' actions? Isn't competition between political parties supposed to be in the public interest, especially when it means the disclosure of ethical misconduct? Isn't it a good thing that they prevent ethical misconduct by making their opponents worry about having an ethics complaint filed against them? In short, this sort of ax grinding is a boon to ethical conduct in government and, therefore, in the public interest.
The Constitutionality of Penalizing Disclosure of Ethics Allegations
The second problem with the League of Cities' position is that it is unconstitutional to prevent individuals from disclosing their ethics allegations. Doe v. Gonzales, 723 F. Supp. 690 (S.D.Fla. 1988) found the following state provision unconstitutional:
Any person who willfully discloses, or permits to be disclosed, his intention to file a complaint, the existence or contents of a complaint which has been filed with the Commission, or any document, action or proceeding in connection with a confidential preliminary investigation of the Commission, before such complaint, document, action, or proceeding becomes a public record as provided herein is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.This language is very similar to the newly proposed subparagraph (b). Therefore, when first considering it, I assumed that it too would be unconstitutional. But when I spoke to the League's legislative director (popularly known as its lobbyist), he acknowledged that the prior language had been declared unconstitutional, but said that the League had "nuanced the language differently."
At first I didn't see the "nuance." The main difference seemed to be that instead of a misdemeanor, there is a civil penalty. This couldn't make a difference with respect to the First Amendment, could it?
And then it came to me. The language is essentially the same. It's the context that is different. Especially the word "and" between (a) and (b). The civil penalty can be imposed only if the complainant both discloses the complaint and the complainant made false allegations with malicious intent. In other words, the extra penalty is not for disclosing a complaint, it's for disclosing a maliciously false complaint, which is defamation. And defamation is not protected by the First Amendment. That is a clever way to get around Doe v. Gonzales. I applaud the League's legal counsel for thinking this up.
Penalties on Complainants Are Intended to Reduce the Number of Complaints
But this still leaves the question, Why is it so important to the League of Cities to add a large penalty to one that is already pretty large? Is their problem that the current law hasn't sufficiently put a stop to the filing of ethics complaints, especially with respect to local officials? In 2013, 210 complaints were filed with the state EC, and nearly two-thirds of them were filed against local government officials. No one knows how many would have been filed without the current penalties on complainants.
What is important about the new penalty is that it is not on the filing of complaints, but rather on their disclosure. If the League can't put a stop to complaints from being filed against its members, it can at least do its best to prevent the public from knowing about the complaints that are filed. What better way than to legally place in the ethics code an otherwise unconstitutional penalty for disclosing a complaint? Yes, if you read the amended provision carefully, you will realize that it is only false complaints that can't be disclosed, but (1) many people won't read it this closely, (2) this ban on disclosure will make them more likely to read and worry about the penalty for "reckless disregard" for the truth, and recognize that mere negligence, not what the rest of us think of as "malice," is sufficient to severely penalize a complainant, and (3) even those who understand the whole thing are more likely to decide it's just not worth filing a complaint, that the system has been designed to protect officials, not the public. That is the last impression an ethics code should make, but that is how it would be if the League of Cities has its way.
Nastiness Need Not Be Met with More Nastiness
I understand how annoying it is to have an ethics complaint filed against you by a political opponent, and then have the opponent hold a press conference before you've even received a copy of the complaint. That's a nasty thing to do. And it's even nastier if the allegations aren't true.
But is it any less nasty to, in the name of protecting officials from ax-wielding complainants, propose an ethics code amendment that will have a chilling effect both on the transparency of ethics proceedings (transparency being one of the principal values of government ethics) and on the filing of ethics complaints? And is it any less nasty to threaten to heap costs, attorney fees, and civil penalties on a complainant who makes a mistake, lacks all the information, or depends on what he has been told, and is found to have acted negligently with respect to the truth (something, thank goodness, government officials are never, ever guilty of)?
The Best Practice with Respect to False Allegations
To put this whole thing into perspective, we need to recognize what a complaint is. A complaint is just a way to get an ethics proceeding rolling. No investigation is required of a complainant. That is done by the ethics commission. In fact, once a complaint has been filed, its allegations are wholly in the hands of the ethics commission, which can dismiss them (singly or wholly) at any time and thereby make the official look good and the complainant look bad. This is the most common penalty for filing false allegations in American local government ethics programs.
Not only is it common, but it is a best practice, and the League of Cities should explain why Florida should go further from a best practice than it already is. Is it Florida's exceptional record of corrupt officials that make them more worthy of protection than they are in other states? Is this proposal, then, simply another example of local official corruption in Florida, putting their personal interests before the public interest?
Why Involve an Ethics Commission with Intent, Defamation, and External Statements?
One of the things that distinguishes ethics proceedings is that they do not deal with intent and motive. It doesn't matter why an official accepts an illegal gift. It doesn't matter whether an official would help or hinder his sister's company, or whether he was given a job with a contractor because he helped it or not. An official is supposed to withdraw from matters involving his sister's company and may not take a job with a contractor with which he was involved as an official. Period. No motivation questions asked.
This is another reason why a malicious intent provision does not belong in an ethics code. This is not the kind of determination ECs are supposed to make about officials. Why should they make such determinations about citizens?
In addition, ECs are only supposed to make determinations involving conflicts of interest issues. Defamation is not a conflict of interest issue. If officials want to sue for defamation, they may do so, and the legal language is the same. The only difference is that suing for defamation in an ethics proceeding puts the burden on the EC, rather than on the plaintiff, and allows the determination to be made via an administrative rather than judicial process. That is, it is less expensive for the official and provides less due process to the complainant. There is a judicial process, which is considered sufficient for other purposes. Why does the League of Cities feel another process is needed so badly for matters that affect only its members?
Why is it so important that the ethics commission should be a referee of allegations in any way other than dismissing them, finding probable cause, or finding an ethics violation did or did not occur? Any statement the complainant makes publicly about ethics allegations has nothing to do with the ethics proceeding and should be ignored by those involved, just as in a criminal proceeding.
The fact is that the League of Cities knows that how rarely an ethics commission will be called on to make decisions regarding defamation or to referee complainants' public statements. That isn't really what this is about. According to the Digital Media Law Project, "in only a handful of cases over the last decades have plaintiffs been successful in establishing the requisite actual malice to prove defamation" against a public figure. One of the things that distinguishes America from most countries is that citizens here are free to say what they want about public figures, including government officials, without the fear of defamation suits. This has its downsides, but movie stars, athletes, and business executives are not calling for more protection. And they do not have a fiduciary duty to the public, as government officials do. Why is it that Florida local officials, who do have this fiduciary duty, are the ones saying they are not sufficiently protected by the law, and need to have recourse to the ethics commission?
The answer is, Because they want to scare people off from filing ethics complaints. The only other answer is that they support the American legal system less than movie stars do.
A Couple of Scenarios
Here is a scenario of what might happen if the League of Cities were to get its way. A complainant learns about serious ethical misconduct among a group of officials and brings it to the attention of the EC. However, in writing her complaint, she has reckless disregard for the truth of one allegation (that is, she entertained doubts about the validity of a stated fact, but included it anyway, believing the likelihood of its truth was sufficient to enable the EC to investigate and determine its truth). When the EC sits on the complaint for a long time, the complainant permits someone who helped to draft the complaint put the complaint online. Four of the six allegations in the complaint lead to findings of ethics violations after a hard-fought proceeding. The League of Cities would want the EC to have to go through a second long proceeding, which would end with this heroic whistleblower paying costs, the five respondents' attorney fees for defense against the allegations and for their vengeful motion to have the complainant found guilty of a false statement, and another penalty on top of that for allowing an ally to let the public know about the complaint.
Let's contrast this example to that of an official who has helped get his brother a big government contract. This official, who has a fiduciary duty to the public that a complainant lacks and who is, unlike the complainant, the subject of the ethics code, pays only his own attorney fees. I don't know how it works with Florida's local governments, but across the country many local governments pick up an official's attorney fees, so the official may be off the hook even for these. In addition, the official can make factual misrepresentations right and left, including false allegations, and say anything he wants to the public, and the EC can do nothing about it.
Of course, the League of Cities' proposal is not really about hurting whistleblowers. It's about limiting the number of whistleblowers, the number of allegations they make, and their freedom to speak publicly about their allegations, especially when they feel that the EC is not doing a good enough job with them.
Publicly Dismissing False Allegations Is in Everyone's Best Interest
It is not in the public interest to prevent uncertain allegations from being made. It is in the public interest for uncertain allegations to be made and investigated and, if they prove not to be true, publicly dismissed, so the official is shown not to have done anything wrong, and the complainant is humiliated.
One of the reasons it is important to have an ethics program, for everyone's sake, is to quickly dismiss false allegations. Without an ethics program, false allegations can be made anonymously anywhere and everywhere. With an ethics program, the response to such allegations is, "Okay, then file an ethics complaint." If one isn't filed, it's an admission that the allegations aren't true. But if you have serious penalties for filing a complaint, one who makes false allegations can honestly say that she is afraid that one of her statements may be found to have been false, and that she could be on the hook for huge costs and fees and penalties.
If everything is kept confidential, how can a complainant say to the blogosphere arguing about an official's guilt, "Hey, wait, I filed an ethics complaint. Let's let the EC decide on my allegations." That's the responsible thing to do, but the League of Cities doesn't want it to happen. It sees everything as politics because, guess what, its members are politicians. But it's not all politics, and even when it is, it's useful. Isn't that pretty much a description of our democratic system. Secrecy and penalties to prevent whistleblowing is supposed to be the Russian form of government, not ours.
How to Reform This Provision
The best ethics reform would be to strike the entire provision. This is effectively what I recommend in my book Local Government Ethics Programs (for false complaints, click here and go to the seventh subsection; for a long discussion of the confidentiality of ethics proceedings, click here).
Another effective ethics reform would be to allow citizens to make tips to the EC, and allow the EC to determine, after a preliminary investigation, whether it is appropriate to begin an ethics proceeding without a formal complaint. This allows uncertain complainants to provide information without fear of huge damages if they're wrong.
The League of Cities' Irresponsible Conduct
I'm sure that the local government ethics experts at the League of Cities were as much aware of these options as they were of the unconstitutionality of the language they proposed adding back into the ethics code. They say in their press release that their goal is to make the Florida code "a model for the country." Instead, it would be a model for what not to do, the government ethics equivalent of directions on building a bomb.
I use this extreme metaphor because the League of Cities' proposal is deeply irresponsible. This is what it is saying to the public. One, we local officials want to turn a program intended to provide oversight over us into a program to provide oversight over any of you who are rash enough to want to provide information that will allow the EC to fulfill its enforcement obligations. Two, we local officials want to make the consequences of negligent falsity by a citizen complainant as bad or worse than what could happen to us officials when we commit ethics violations. Consider a roughly equivalent law that penalizes a murder witness as much or more than the murderer himself, because the witness is found to have had reckless disregard of the truth of one of the facts he gives to the police (even though he pointed the finger at the actual murderer). How fair is that? And three, we local officials think that all this is worth the chilling effect it will have on all the citizens who will be afraid to file an ethics complaint in order to hold us accountable for our misconduct. In fact, this is all about the chilling effect.
What the League of Cities has proposed is not "tough ethics reform," which is what it says in its press release. It is worse than any individual official's ethical misconduct. It is systemic ethical misconduct, putting the personal interest of all local officials in not being the subject of ethics complaints ahead of the public interest in the EC providing effective prevention and enforcement of the state's ethics laws.
The League of Cities should not only ask Sen. Clemens to withdraw this proposal. It should apologize to the public for having recommended it, and it should swear never to lobby on government ethics topics again. I will discuss the lobbying issue further in the last blog post on this bill.
Part II - Gifts, Ethics Advice, and Training
Part III - Placing Shackles on Countywide Ethics Programs
Part IV - Local Govt. Associations Should Not Lobby re Conflicts of Interest
Robert Wechsler
Director of Research-Retired, City Ethics
---
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