Legislative Involvement in Administration: Problems in Broward County, FL

One of the most important ways of preventing ethical misconduct
usually does not appear in an ethics code, because it does not involve a
traditional conflict of interest. I am referring to non-legislative
roles played by local legislators, especially roles that enable them
to create a pay-to-play environment. These roles are played in the two
principal areas where ethical misconduct occurs:  procurement
and land use decisions.<br>
<br>
In past blog posts, I have focused on
land use involvement, especially the usually informal
authority given to local legislators over land use decisions in
their districts, what is known as "district courtesy" or, <a href="http://www.cityethics.org/content/chick-fil-controversy-really-governme…; target="”_blank”">in
Chicago, "aldermanic privilege."</a> This "courtesy" has also been a
major ethics problem in such places as <a href="http://www.cityethics.org/content/council-fiefdoms-and-unethical-behavi…; target="”_blank”">Dallas</a>,
<a href="http://www.cityethics.org/content/pay-play-culture-prince-georges-count…; target="”_blank”">Prince
George's County, MD</a>, and <a href="http://www.cityethics.org/content/gwinnett-county-ethics-reform-i-failu…; target="”_blank”">Gwinnett
County, GA</a>.<br>
<br>
Legislative involvement in the bidding process, whether formal or
informal, can lead to equally serious ethics problems.<br>
<br>

This is why,
when Broward County, FL instituted major ethics reforms (they became
effective at the beginning of 2012), one provision prohibited county
commissioners from sitting on bid committees:<blockquote>

It shall be a conflict of interest for a member of the Board of
County Commissioners to serve as a voting member of a County
procurement Selection/Evaluation Committee. County Commissioners
shall not be included as members on any Selection/Evaluation
Committee and shall not participate or interfere in any manner at
Committee meetings or in the selection of Committee members, which
members shall be appointed by the County Administrator. Upon the
completion of the selection process by the Committee, County
Commissioners may inquire into any and all aspects of the selection
process and express any concerns they may have to the Purchasing
Director.</blockquote>

According to <a href="http://www.sun-sentinel.com/news/broward/fl-ethics-code-undo-20121001,0…; target="”_blank”">an
article in Monday's <i>Sun-Sentinel</i></a>, less than a year later the
county mayor called for this provision to be removed from the
ethics code.<br>
<br>
The county's inspector general responded immediately
to the mayor's proposal with <a href="http://www.broward.org/InspectorGeneral/Documents/OIGLetterRegardingPro…; target="”_blank”">a
letter to the county commission</a> that clearly states the
reasons for the inclusion of this provision and its preservation (Broward County created an inspector general instead of an ethics commission; what the IG did could equally well be done by the executive director of an ethics commission):<blockquote>

[P]rocurement selection committees are vulnerable to the appearance
of impropriety and potential abuse because they are empowered to
designate a particular contractor or vendor as the favorite, and
recommend specific contracts or vendors to the governing body. Thus,
selection committees are the focus of significant attention from
interested businesses, competing bidders, [and] elected officials
... The Ethics Commission [that drafted the ethics code] observed that few staff members are in a
position to openly disagree with a commissioner serving on a
selection committee, and concluded that a commissioner's mere
presence on the selection committee presented an obstacle to a
transparent and unbiased procurement.</blockquote>

Two county commissioners are quoted in <a href="http://www.sun-sentinel.com/news/broward/fl-broward-ethics-vote-2012100…; target="”_blank”">a
<i>Sun-Sentinel</i> article today</a> as saying that they don't mind
being prohibited from sitting on bid committees after what they
witnessed:<blockquote>

Lobbyists made phone calls or approached commissioners and said,
"Would you get on that committee?" We did that, and people on this
dais did that. And that's what muddied it up.<br>
<br>
There were times when you could tell people made decisions
based on friendships rather than value. I saw how the system could
be manipulated and was. There isn't one of us that didn't notice
it.</blockquote>

The mayor has an argument for doing away with the provision. He
argues that having county commissioners on bid committees makes them
"more accountable for their decisions.'' It allows them to make more
educated votes with respect to approving bids accepted by
committees. It makes them "more engaged in the process. ... I think
they reined in the power of the board beyond what they should have
done.''<br>
<br>
The last sentence seems, to me, to be the crux of the matter. The rest just muddies the waters. Sitting on
bid committees whose bids the commission will, in any event, approve
does not make commissioners more accountable. It makes them more
engaged in a process they have no business being engaged in. Should
they also sit on grant committees, land use approval committees,
hiring committees? In other words, is a legislator's job to
legislate or administer?<br>
<br>
If the mayor wants more accountability, and does not care about
mixing up legislative and other activities, perhaps he should support having the IG sit on the county commission,
where he can become more engaged in the process and have the information and power
he needs to keep county politicians accountable.<br>
<br>
In other words, the mayor's arguments, excepting the part about
power, beg the question. The question is how much involvement local
legislators should have in administration. Perhaps it would be best
that county commissioners do not even have the authority to approve
or reject bids, any more than they have the authority to
approve or reject IG reports or decisions of the state ethics
commission.<br>
<br>
As it turns out, last night the county commission decided not to amend the ethics
code, at least not yet.<br>
<br>
<b>Land Use Activities</b><br>
Although the Broward County ethics code does deal with elected
officials on bid committees, it does not deal with elected officials
on land use committees. This has led to a problem in a municipality
in the county, whose Community Redevelopment Agency (CRA) consists
solely of the city's five commissioners, according to <a href="http://www.miamiherald.com/2012/09/28/3024872/hallandale-beach-audit.ht…; target="”_blank”">a
Miami <i>Herald</i> editorial last week</a>.  Legislators'
involvement in the CRA's purchase of land from a former
congressman's charter school company led to a messy transaction:<blockquote>

[I]nstead of CRA money, city administrators used the city’s own
general revenue to pay for the land. The auditor faults these
officials for acting without approval of the City Commission to use
city money and title the property in the city’s, not the CRA’s,
name.</blockquote>

It's hard to do things right when city commissioners are wearing two
hats in the same transaction. Why have an agency that consists of
the legislative body? If a legislative body wants to keep
transactions separate, it should create a real separate agency, not
a clone of itself.<br>
<br>
An auditor has investigated the matter, and the IG is still
investigating this and other land deals in the county. The county
commissioners need to make the prohibition against local legislative
interference in administration more broad rather than nonexistent.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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