You are here
A Misguided Attempt to Provide More Due Process in FL
Wednesday, March 19th, 2014
The story of state legislative interference with local government
ethics programs in Florida continues with a newly amended bill in
the state senate (SB 1474 is attached; see below), sponsored by senator Joe
Abruzzo, whose antagonism to the Palm Beach County ethics program
has been the subject of three City Ethics blog posts in the past
year (audit
of the Palm Beach County program, legislative
committee call for suspension of the program, and possible
involvement in Florida
League of Cities' ethics reform proposals).
Since the state senate cannot pass rules that apply only to one local government ethics program, the bill would apply to all of them, including the Jacksonville program administered by City Ethics' president, Carla Miller.
The stated goal of the amended bill is to bring more due process to local government ethics programs. The stated problem is that the same people who find probable cause also determine whether an ethics violation has occurred. This appears at first blush to be a serious problem. Once an individual or body has determined probable cause that a respondent official has violated an ethics provision, he or it may be considered to have decided against the respondent and, therefore, be biased against him. Such an individual or body may argue before another individual or body that a violation has occurred, but should not make any further determination in the matter.
What a Probable Cause Finding Actually Means
However, as I told Sen. Abruzzo, this shows a misunderstanding of what it means to find probable cause. This finding, which is often misunderstood, does only one thing: it allows the matter to proceed. It is less a determination or finding than a decision not to dismiss, because at least one allegation in a complaint appears to have enough validity to be considered. It is a decision to proceed from a preliminary investigation to a full investigation and, possibly, a hearing. In most jurisdictions, it is also a decision to make a matter public. But it is not a decision that a violation has occurred. It is only a decision that there is enough evidence not to dismiss the complaint without a hearing. It is the sort of preliminary decision that judges make on a daily basis, and yet are allowed to make final decisions on the merits, as well.
It also needs to be recognized that (1) ethics proceedings are administrative proceedings that provide less due process than civil or criminal proceedings, (2) due process rights are intended to protect citizens against government officials, not government officials against citizens, and (3) government officials have special, fiduciary obligations to citizens, and government ethics programs' principal goal is to make sure they fulfill these special obligations. Thus, arguments for due process in ethics proceedings are very different than the due process arguments we are used to hearing. And yet officials do make these irrelevant arguments in favor of protecting the due process rights of government officials in ethics proceedings. This shows either a misunderstanding of the differences stated above, or an expectation that others won't recognize the differences.
Separating an Ethics Program's Roles
In any event, it is good to provide government officials with as much due process as is feasible, considering the size of a jurisdiction and the funds available. The best practice is to have investigations done by a separate individual or office, such as an inspector general or independent investigator. This means that the ethics program is involved only in interpreting and applying the ethics code, not in investigating the facts. Participating in an investigation can bring an individual or body too close to a matter. An alternative is to have an investigator on staff that takes total responsibility for investigations, and has no other role in the ethics program. Or a staff member or attorney under contract can advocate in an ethics proceeding, and have no other relationship with the ethics commission. In small jurisdictions that have no ethics staff, an alternative is, in each case, to split the ethics commission into investigative/advocacy and adjudicatory committees, so that the roles remain separate. In short, there are many ways to separate an ethics program's roles without bringing in someone from outside the program to interpret the ethics code.
However, SB 1474 does not propose any of these means of separating roles. What it does is to apply the state enforcement process by making §112.324 of the state ethics code applicable to all local ethics programs. No matter what the size of the municipal government, the bill would require that its ethics program act as if it had the resources of the state program. This means that investigations would be done by the ethics commission, not by an outside investigatory body or individual.
Actually, the amended SB 1474 does not do what its sponsor says it does. According to an article in the Palm Beach Post on Monday, Sen. Abruzzo told the committee, with respect to the amendment, “I believe no one government should be the investigator, the prosecutor, the jury, the judge and clerk of courts. That is exactly what we have in Palm Beach County.” And the article states that "the bill, which has two more committee stops to go in the Senate, now more closely resembles a companion bill filed in the House by state Rep. Charles McBurney, R-Jacksonville." That bill is HB 1315 (attached; see below), which would allow an ethics respondent to choose to have a proceeding heard by the EC, by a member of the EC, by the ethics officer, or by an administrative law judge.
There seems to be a mistake here, because §112.324 (attached; see below) says nothing about who hears a case. But let's assume that Sen. Abruzzo will realize this and make the appropriate changes, so that the amended SB 1474 is consistent with HB 1315.
It's hard to imagine an official preferring to have her case heard by a single member of the EC rather than the entire EC, unless the official could choose the EC member (and that would be unacceptable to anyone else). It's nearly as hard to imagine such an official choosing the ethics officer to hear her case, since it is the ethics officer who usually does the investigation and recommends probable cause (in any event, there are few ethics officers in Florida). This would occur only when an official either (i) had little respect for the EC's competence or (ii) believed that the ethics officer was sympathetic to her case. The belief that either of these were true would undermine trust in the ethics program.
The Problems with Having an Administrative Law Judge Interpret an Ethics Code
The administrative law judge would be a respondent's most likely choice. This is problematic for several reasons. One, administrative law judges know little or nothing about government ethics.
Two, unlike in all other matters they hear, where precedents are judicial and easily accessible, in ethics proceedings there are numerous precedents — an ethics program's advisory opinions — which are often confidential and which judges, unlike ethics programs, are not bound to follow. This means that there is likely to be contradictions between the interpretations of a local ethics code by administrative law judges and the local ethics program, leading to confusion, suits and, most seriously, a lack of trust in advisory opinions, which are the core of an ethics program, far more important than enforcement (but try convincing a judge of this).
Three, there is an extra cost of having ethics proceedings heard by judges, a cost unlikely to be funded by the state legislature that provides for this alternative. Increased costs often lead a local legislative body to cancel its ethics program, and leave it to the state. But Florida's ethics code is weak, and the state program does not provide the training, advice, and disclosure that many local programs provide.
Four, as can be seen in state ethics proceedings decided by administrative law judges in Florida, as well as in Louisiana, which took enforcement away from the EC a few years ago (see my blog post on this), administrative judges are less likely to find ethics violations than ECs are. Consider the case of Tallahassee mayor John Marks. In November 2012, the state EC recommended that the mayor be fined $30,000 and be publicly censured, but in January an administrative law judge recommended that the case be dismissed for lack of evidence. The reason for the judge's decision was not consistent with government ethics practices, because he found that since a nonprofit that paid the mayor was not eligible for a grant the mayor voted for, it could not have benefited from the mayor's vote. It is enough, in government ethics matters, for an official to have voted to benefit an employer, even if it turns out that the employer does not or could not benefit. This is a good example of a judge not understanding government ethics and taking a different approach than an ethics program. The result is a damaging precedent that will undermine the goals of the ethics program.
And five, officials are less likely to settle matters when they feel they have a better chance of winning with an administrative law judge. This is a serious problem, because it is best for the community that ethics proceedings be settled. Settlements remove the cloud over the official respondent and, sometimes, over the entire government, and they save taxpayers a lot of money. Procedures should encourage rather than discourage settlement.
Florida is the home of more valuable experiments in local government ethics than any other state. HB 1315, SB 1474, and the other bills currently going through the legislature, would be damaging to these local government ethics programs and would likely prevent others from being formed. Hopefully, the Florida state legislature will recognize this, and decide to keep its hands out of this valuable experimentation.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Since the state senate cannot pass rules that apply only to one local government ethics program, the bill would apply to all of them, including the Jacksonville program administered by City Ethics' president, Carla Miller.
The stated goal of the amended bill is to bring more due process to local government ethics programs. The stated problem is that the same people who find probable cause also determine whether an ethics violation has occurred. This appears at first blush to be a serious problem. Once an individual or body has determined probable cause that a respondent official has violated an ethics provision, he or it may be considered to have decided against the respondent and, therefore, be biased against him. Such an individual or body may argue before another individual or body that a violation has occurred, but should not make any further determination in the matter.
What a Probable Cause Finding Actually Means
However, as I told Sen. Abruzzo, this shows a misunderstanding of what it means to find probable cause. This finding, which is often misunderstood, does only one thing: it allows the matter to proceed. It is less a determination or finding than a decision not to dismiss, because at least one allegation in a complaint appears to have enough validity to be considered. It is a decision to proceed from a preliminary investigation to a full investigation and, possibly, a hearing. In most jurisdictions, it is also a decision to make a matter public. But it is not a decision that a violation has occurred. It is only a decision that there is enough evidence not to dismiss the complaint without a hearing. It is the sort of preliminary decision that judges make on a daily basis, and yet are allowed to make final decisions on the merits, as well.
It also needs to be recognized that (1) ethics proceedings are administrative proceedings that provide less due process than civil or criminal proceedings, (2) due process rights are intended to protect citizens against government officials, not government officials against citizens, and (3) government officials have special, fiduciary obligations to citizens, and government ethics programs' principal goal is to make sure they fulfill these special obligations. Thus, arguments for due process in ethics proceedings are very different than the due process arguments we are used to hearing. And yet officials do make these irrelevant arguments in favor of protecting the due process rights of government officials in ethics proceedings. This shows either a misunderstanding of the differences stated above, or an expectation that others won't recognize the differences.
Separating an Ethics Program's Roles
In any event, it is good to provide government officials with as much due process as is feasible, considering the size of a jurisdiction and the funds available. The best practice is to have investigations done by a separate individual or office, such as an inspector general or independent investigator. This means that the ethics program is involved only in interpreting and applying the ethics code, not in investigating the facts. Participating in an investigation can bring an individual or body too close to a matter. An alternative is to have an investigator on staff that takes total responsibility for investigations, and has no other role in the ethics program. Or a staff member or attorney under contract can advocate in an ethics proceeding, and have no other relationship with the ethics commission. In small jurisdictions that have no ethics staff, an alternative is, in each case, to split the ethics commission into investigative/advocacy and adjudicatory committees, so that the roles remain separate. In short, there are many ways to separate an ethics program's roles without bringing in someone from outside the program to interpret the ethics code.
However, SB 1474 does not propose any of these means of separating roles. What it does is to apply the state enforcement process by making §112.324 of the state ethics code applicable to all local ethics programs. No matter what the size of the municipal government, the bill would require that its ethics program act as if it had the resources of the state program. This means that investigations would be done by the ethics commission, not by an outside investigatory body or individual.
Actually, the amended SB 1474 does not do what its sponsor says it does. According to an article in the Palm Beach Post on Monday, Sen. Abruzzo told the committee, with respect to the amendment, “I believe no one government should be the investigator, the prosecutor, the jury, the judge and clerk of courts. That is exactly what we have in Palm Beach County.” And the article states that "the bill, which has two more committee stops to go in the Senate, now more closely resembles a companion bill filed in the House by state Rep. Charles McBurney, R-Jacksonville." That bill is HB 1315 (attached; see below), which would allow an ethics respondent to choose to have a proceeding heard by the EC, by a member of the EC, by the ethics officer, or by an administrative law judge.
There seems to be a mistake here, because §112.324 (attached; see below) says nothing about who hears a case. But let's assume that Sen. Abruzzo will realize this and make the appropriate changes, so that the amended SB 1474 is consistent with HB 1315.
It's hard to imagine an official preferring to have her case heard by a single member of the EC rather than the entire EC, unless the official could choose the EC member (and that would be unacceptable to anyone else). It's nearly as hard to imagine such an official choosing the ethics officer to hear her case, since it is the ethics officer who usually does the investigation and recommends probable cause (in any event, there are few ethics officers in Florida). This would occur only when an official either (i) had little respect for the EC's competence or (ii) believed that the ethics officer was sympathetic to her case. The belief that either of these were true would undermine trust in the ethics program.
The Problems with Having an Administrative Law Judge Interpret an Ethics Code
The administrative law judge would be a respondent's most likely choice. This is problematic for several reasons. One, administrative law judges know little or nothing about government ethics.
Two, unlike in all other matters they hear, where precedents are judicial and easily accessible, in ethics proceedings there are numerous precedents — an ethics program's advisory opinions — which are often confidential and which judges, unlike ethics programs, are not bound to follow. This means that there is likely to be contradictions between the interpretations of a local ethics code by administrative law judges and the local ethics program, leading to confusion, suits and, most seriously, a lack of trust in advisory opinions, which are the core of an ethics program, far more important than enforcement (but try convincing a judge of this).
Three, there is an extra cost of having ethics proceedings heard by judges, a cost unlikely to be funded by the state legislature that provides for this alternative. Increased costs often lead a local legislative body to cancel its ethics program, and leave it to the state. But Florida's ethics code is weak, and the state program does not provide the training, advice, and disclosure that many local programs provide.
Four, as can be seen in state ethics proceedings decided by administrative law judges in Florida, as well as in Louisiana, which took enforcement away from the EC a few years ago (see my blog post on this), administrative judges are less likely to find ethics violations than ECs are. Consider the case of Tallahassee mayor John Marks. In November 2012, the state EC recommended that the mayor be fined $30,000 and be publicly censured, but in January an administrative law judge recommended that the case be dismissed for lack of evidence. The reason for the judge's decision was not consistent with government ethics practices, because he found that since a nonprofit that paid the mayor was not eligible for a grant the mayor voted for, it could not have benefited from the mayor's vote. It is enough, in government ethics matters, for an official to have voted to benefit an employer, even if it turns out that the employer does not or could not benefit. This is a good example of a judge not understanding government ethics and taking a different approach than an ethics program. The result is a damaging precedent that will undermine the goals of the ethics program.
And five, officials are less likely to settle matters when they feel they have a better chance of winning with an administrative law judge. This is a serious problem, because it is best for the community that ethics proceedings be settled. Settlements remove the cloud over the official respondent and, sometimes, over the entire government, and they save taxpayers a lot of money. Procedures should encourage rather than discourage settlement.
Florida is the home of more valuable experiments in local government ethics than any other state. HB 1315, SB 1474, and the other bills currently going through the legislature, would be damaging to these local government ethics programs and would likely prevent others from being formed. Hopefully, the Florida state legislature will recognize this, and decide to keep its hands out of this valuable experimentation.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Story Topics:
| Attachment | Size |
|---|---|
 Amended FL SB 1474.pdf | 0 bytes |
| FL HB 1315.pdf | 0 bytes |
| FL 112.324.pdf | 0 bytes |
- Robert Wechsler's blog
- Log in or register to post comments
