A Grand Jury Report in Florida Recommends Numerous Ethics Reforms

In February, Florida governor Charlie Crist asked for a grand jury to report on government corruption in Florida. The first interim report was filed yesterday. Its recommendations involve local government as well as state ethics laws.

The report begins (p. 3) by characterizing fraud, waste, and abuse of government resources as "Florida's Corruption Tax," a nice way to spin the issue.

Only ten years ago, a blue-ribbon Public Corruption Study Commission, consisting primarily of state officials, including ethics commission staff, filed a much shorter report, which provided ethics and corruption law reform language. The new report lists all the commission's recommendations that were not accepted by the state legislature. Most involved criminal issues, but two important ethics proposals were ignored:  required ethics training (reiterated by the state grand jury on p. 106) and allowing the state ethics commission to investigate without a complaint (reiterated by the state grand jury on p. 82). These two ethics provisions are essential to an ethics program.

The report also refers to the a 2009 Palm Beach County grand jury report (attached; see below), which made one especially interesting recommendation, which the state grand jury reiterates (at p. 37):  to create a sentencing enhancement for crimes committed “under the color of law.”

Here's a list of some other excellent recommendations in the report. The recommendations include specific instances where the current law prevented enforcement. I will include some of these in future blog posts.

An expansion of the definition of "public servant" to include individuals who work for any entity "authorized by law or contract to perform a governmental function or provide a governmental service." (p. 17, and see p. 83) This change recognizes the growing privatization of government.

A new provision to address failure to use the competitive bidding process when required to do so, and to expressly prohibit the splitting of bids in order to avoid the competitive bidding process (p. 27).

Placing all state inspector general offices under one state inspector general's office, to make all the offices more independent (p. 54).

Prohibiting officials with a conflict of interest, as well as their staff members, from attempting to influence the outcome of any vote, decision, recommendation, finding, or report relating to the official’s office (p. 67).

Requiring electronic filing of all financial and gift disclosure forms (p. 71).

The consolidation of all definitions in one definitions section (p. 85).

Requiring all metropolitan counties to establish their own ethics codes and commissions similar to that of Miami-Dade County (p. 88). But if the state ethics commission is made more independent and given more resources, and the state ethics code is improved, this may not be necessary.

The creation of a single debarment list that encompasses all contractors who have been barred by the state or any county or city, along with stronger debarment provisions (p. 102).

Appointment of state and local agency ethics officers to handle ethics training (p. 106).

One area of recommendations that I don't like is to criminalize (as felonies) most of the essential ethics provisions when the conduct is intentional or willful (p. 39ff). This appears to be a stronger way of dealing with corruption, but it is actually a weaker way of dealing with unethical conduct, because it brings in prosecutors, who usually have more important matters to deal with and who are themselves politically active. Thus, criminalization makes it less likely that enforcement will occur and more likely that the enforcement that does occur will appear partisan, thereby undermining the public's trust in the ethics process itself.

Better to increase the top civil penalty, as the grand jury recommends, from $10,000 to $100,000 (p. 66). But even here, care is required. The higher the penalty, the more due process becomes an issue. The ethics process is an administrative rather than a judicial process. Penalties that are too high may not be appropriate to an administrative process. Better, I think, to focus on restitution, debarment, and other such penalties.

Something recommended in this report, but which I haven't written about at all, is blind trusts for certain state and local officials (p. 69). This is worthy of its own blog post.

According to an article in the Tampa Bay Times-Herald today, former state senator Dan Gelber, "who several times pushed for stronger ethics rules, is skeptical that the grand jury report will make a difference even though it's full of good ideas."

"The problem has not been the ideas. It's been the unwillingness of the Legislature to really reform itself and public offices around the state," he said. "The Legislature refuses to seriously address public corruption. I commend the grand jury for cataloging a lot of the ideas. At the end of the day, unless there's the political will to implement them, it will be meaningless."

The grand jury acknowledged that very point. "We cannot ignore the reality that it is often hard to impose more severe restrictions on one's own interests," the jury wrote.

That's a very clear, simple description of the conflict of interest at the core of dealing with conflicts of interest.

I will end this blog post with a quote from Thomas Jefferson that appears on page 16 of the report:  “Where a man assumes a public trust, he should consider himself a public property.”

Robert Wechsler
Director of Research-Retired, City Ethics

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