(DEERFIELD BEACH CODE OF ORDINANCES)
Sec. 2-501. Short title.
This article may be referred to in whole as the ethics code.
Sec. 2-502. Required and prohibited conduct.
(a) No member of the city commission or city manager (hereinafter referred to as "regulated officers") shall use their official position or office, by either taking any action or failing to take any action, or participate in any commission discussion, in a manner calculated to obtain a personal financial benefit not shared by a substantial portion of the public or an affected class or special private gain for himself/herself, or a principal, by whom he/she has been retained, or for the special private gain of any of the following:
(1) Himself or herself;
(2) A relative as hereinafter defined, or the employer or business of such relative; or
(3) A customer or client of the regulated officer or a customer or client of a principal by whom the regulated officer is retained; or
(4) A substantial debtor or creditor of the regulated officer or principal by whom he/she is retained; or
(5) A nongovernmental civic group, union, social, charitable, or religious organization of which he or she (or his or her spouse or domestic partner) is an officer or director.
(b) A regulated officer shall not use his or her official position or office to take any action, or influence others to take or fail to take any action, involving city employee compensation and/or benefits, including pension benefits, or participate in any commission discussions for the following persons:
(1) Himself or herself;
(2) A relative of himself or herself;
(3) An exception to this subsection for the city manager and members of the commission concerns his/her/their being entitled to advocate for his or her salary, benefits and job conditions, and in the case of members of the commission to vote upon same. However, members of the commission shall not vote on any salary increase or additional benefits that would take effect during their then current term of office;
(4) Attendance at a meeting of the city commission or voting where required by F.S. § 286.012, shall not constitute a violation of this section.
(c) A regulated officer shall not induce, attempt to induce, offer, solicit or knowingly assist any person in violating subsection (a).
(d) A regulated officer shall not, while holding said office, have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity, or incur any obligations of any nature which is in substantial conflict with the proper discharge of his or her public duties or employment.
(e) A regulated officer shall not use or attempt to use his or her official position to improperly or unreasonably request, grant, or obtain in any manner any privileges, advantages, benefits or exemptions for themselves or others that are not available to those generally available to city residents or which are not specifically incident to their position and the conduct of their public duties.
(f) A regulated officer shall not sexually harass, date, have sexual relations with, or have a romantic relationship with any employee of the city. This shall not apply to a case where a regulated officer is married or engaged to said employee at the time of the adoption of this article or at the time of taking office.
(g) No regulated officer and no partner or business associate of a regulated officer shall represent any other person or entity before the city, city commission, city board, city department, or city agency, except that he/she may represent constituents without compensation on matters of public advocacy, may represent the city, or may represent himself/herself. This prohibition includes not communicating with any staff of the city concerning the matter.
(h) When a regulated officer appears before any public body or board or authors a document intended to be published or widely distributed (other than campaign literature) he/she shall disclose within the statement or the writing whether he/she is appearing in his/her official capacity or as a private citizen.
(i) No regulated officer shall promise an appointment or the use of his/her influence to obtain an appointment to any position as a reward for any political support, activity, assistance or contribution.
(j) For a period of two years after the termination of his/her serving as a regulated officer, the regulated officer shall not appear before or practice before any city department, agency, board or commission except on his or her own behalf, or on behalf of the city serving on a volunteer basis or a civic group serving on a volunteer basis. For the same period a regulated officer may not receive compensation for working on, or have associates working on, any matter before any city department, agency, board or commission.
(k) Where the application of this ethics code would require the regulated officer to refrain from voting but where the regulated officer is prohibited from doing so by F.S. § 286.012, the act of casting a vote shall not be construed to be a violation of this ethics code. This shall be considered a "non-actionable conflict" under this ethics code.
(l) This ethics code shall specifically not apply:
(1) If the member of the commission is employed by any newspaper which publishes any municipal notice, resolution, ordinance or other proceeding where such publication is required or authorized by law;
(2) If the member of the commission is employed by a public utility that furnishes public utility services to the city;
(3) If a member of the commission is employed by a governmental agency other than the city.
(m) Commissioners casting any vote on any matter where a city commissioner is aware, or reasonably should be aware, that he/she has a non-actionable conflict shall file a written disclosure form ("conflict disclosure form") as set forth below. The conflict disclosure form disclosure shall be filed either before the meeting whenever possible, or in no event more than 15 days after the vote. The filing shall be with the city clerk. The commissioner shall announce the non-actionable conflict and publicly describe the nature of the non-actionable conflict prior to the vote. If the commissioner is absent when the vote is taken he/she shall nevertheless file the disclosure form within 15 days of the vote even though he/she did not cast a vote and even though he/she had a non-actionable conflict. Where a matter is scheduled on an agenda for discussion or action by the city commission and there would be a voting conflict of interest under F.S. Ch. 112, or a non-actionable conflict under this ethics code if a vote were taken, a conflict disclosure form shall be filed for said meeting even if no vote is taken.
(n) Commissioners shall not cast a vote on any matter where a city commissioner is aware, or reasonably should be aware, that he/she has a conflict under applicable state law. If the commissioner is absent when such vote is taken he/she shall nevertheless file the conflict disclosure form within 15 days of the vote.
(o) A regulated officer, his or her spouse or domestic partner, child or step-child, parent, or member of his or her household, shall not solicit or accept a gift as defined in F.S. § 112.312 from any person or entity that a regulated officer knows, or has reason to believe, has received or sought a land use plan amendment, development permit (other than a building permit) or contract or the payment of city funds from the city within the previous three years. Entity includes employees, shareholders, members, partners, officers and directors of the entity. Where it appears, within a one year period after receipt of a gift as described above is received by a regulated officer that the donor of the gift seeks a land use plan change, a development permit (other than a building permit) or a contract or city funds, the regulated officer shall return the gift or the fair market value of the gift to the donor.
(p) A regulated officer shall not, directly or indirectly, induce, encourage, or aid anyone to violate any provision of this ethics code.
(q) The provisions of this ethics code as concerns the city manager shall be and become part of every future employment contract and extension of every employment contract of the city manager with the city.
Sec. 2-503. Effect on vote.
Where a city commissioner votes on any matter without making a required disclosure, the specific action of the city commission so voted upon shall be deemed void and of no force and effect upon the finding of a violation pursuant to the procedure set forth herein. The city commission may ratify said action in an open session held after applicable public notice. The ratification of their actions does not serve to nullify any penalties imposed pursuant to this ethics code.
Sec. 2-504. Enforcement proceedings; city attorney requirements under code of ethics, outside investigation and hearing officer.
(a) The city has a strong commitment to a neutral, nonpoliticized ethical environment and this procedure for investigation and hearings is to effect a clear message to the residents of Deerfield Beach that to the extent possible, the city is committed to such a neutral, non-politicized ethical environment.
(b) Where a suspected violation of this Code is reported in writing through a complaint containing the name, address and phone number of the complainant, the city attorney shall assign the matter to outside legal counsel who shall make an initial determination of whether a prima facie case indicated violation by this ethics code by a regulated officer. If the outside legal counsel finds that there is no prima facie case of a violation, he shall issue a written opinion to that aspect with a copy to the complainant and to the city commission and to the city manager. If the outside legal counsel determines that there is stated a prima facie violation of this code then he/she shall investigate the complaint.
(c) The outside legal counsel assigned by the city attorney shall not be a law firm presently representing the City of Deerfield Beach. The city attorney shall also appoint, when the circumstances indicate the necessity of such, a hearing officer for the purposes of hearing any complaints with regard to violations of this ethics code. The hearing officer shall be either be former circuit court judge in the State of Florida, a former county court judge in the State of Florida, former administrative judge in the State of Florida, or a federal judge or magistrate with jurisdiction included in the State of Florida.
(d) The outside legal counsel and hearing officer shall be provided a copy of the complaint to determine that they have no conflicting employment or other relationships which would prohibit them from undertaking their role without any allegation of bias or prejudice. No member of the commission shall speak or correspond with either the outside legal counsel or hearing officer while the process as set forth herein is being employed. The city attorney shall agree to pay reasonable fees to outside legal counsel and the hearing officer. No regulated officer shall discuss with, suggest, consult with, or in any way communicate with the city attorney at any time concerning any potential person who might be selected as outside legal counsel or hearing officer, or a potential outside legal counsel or hearing officer, and for a regulated person to do so is a violation of this Code.
(e) Upon receiving the complaint from the city attorney, outside legal counsel shall make a determination as to whether he believes there is probable cause to move forward with a hearing that this ethics code has been violated. If the outside legal counsel finds that there is no such basis, he/she shall file a document with the city clerk, with a copy to the complainant and the respondent, indicating that he/she has found no violation of the Code; at that point there shall be no further action on the complaint. If the outside legal counsel finds a reasonable basis for the belief that a violation of this ethics code has occurred, he/she shall issue a document stating as such which document shall be provided to the hearing officer and the respondent.
(f) Copies of all documents shall be provided to the city clerk. The hearing officer shall confer or attempt to confer with outside legal counsel and the respondent or his/her representative or counsel in order to schedule a hearing, and outside counsel and the respondent or his/her representative or counsel shall give an estimate of the time for the hearing. The hearing shall be scheduled no sooner than 30 days and no more than 45 days from the date of the filing of the charges set forth above.
(g) The respondent shall have ten days from the filing of the charge as set forth above to respond to the charge which response shall:
(1) Admit the violation; or
(2) Admit the violation with extenuating or mitigating circumstances; or
(3) Deny the violation.
Failure to respond shall be deemed a complete denial of the charge.
(h) The hearing officer may grant or deny a written extension or continuance for any time frames as set forth herein, which grant or denial shall be in writing. At least five days prior to the date set for the hearing the outside legal counsel, respondent or his legal representative shall file with the hearing officer a statement of all witnesses they intend to introduce at the hearing together with a list of and copies of all exhibits they intend to introduce. Failure to do so may result in the exclusion of evidence or witnesses at the discretion of the hearing officer.
(i) At the hearing, the hearing officer shall require the outside legal counsel to first present the case for a violation to be followed by the case for the respondent. The hearing officer may permit the making of opening statements and shall permit the direct and cross-examination of witnesses. The strict rules of evidence shall not apply in the hearing but the hearing officer shall assure that due process is afforded both parties. All evidence which the hearing officer finds that a reasonably prudent person would rely upon in the conduct of their ordinary affairs may be admitted at the hearing. If the respondent admits the violation of the Code, the hearing shall be solely related to the penalty. In the absence of said admission the hearing shall be to determine if there was a violation, the severity of the violation and the nature of the penalty. The city shall assure that a court reporter shall attend the hearing and make a full transcription of the hearing.
(j) Other than as stated in this administrative procedure, there is no pre-hearing discovery.
(k) The city shall have the burden of proof through its outside counsel by the greater weight of the evidence. The "greater weight of the evidence" means the more persuasive and convincing force and effect of the entire evidence in the case presented to the hearing officer. At the conclusion of the hearing, the hearing officer shall either make a determination that there was a violation or that there was not a violation. If the hearing officer finds that there is no violation that shall conclude the proceeding. If the hearing officer finds that there was a violation of the code of ethics, he/she shall then make a determination as to the penalty. In determining the penalty, the hearing officer shall consider:
(1) The gravity of the offense (this is the most significant factor in determining the penalty);
(2) Whether or not there has been an admission of the violation (the hearing officer may consider as an exacerbating factor a person who denies a violation that is later proved);
(3) The knowledge of the violation (although ignorance of the violation is no defense, and in fact, all persons subject to this Code are charged with constructive knowledge of this Code and a responsibility to fully and completely follow it, the hearing officer may find a violation of this Code whether or not the evidence shows actual knowledge of the Code violation at the time of the violation); and
(4) All facts which the hearing officer deems relevant and appropriate.
(l) The hearing officer may impose the following penalties:
(1) Forfeiture of whole or part of salary and benefits or reimbursement to the city for salary and benefits in an amount determined by the hearing officer; or
(2) A public reprimand. A public reprimand must be read at the beginning of two consecutive commission meetings and shall be posted on the city's official website for a period of six months.
(m) All decisions of the hearing officer as to the finding of a violation and the penalty for the violation shall be in writing.
(n) The ruling of the hearing officer is considered final unless either side timely files a motion for rehearing, reconsideration and/or clarification. Either side may request a rehearing of the hearing officer's ruling and/or penalty, but to timely do so it must be done by filing within ten days from date of the hearing officer's report and serving within that same time period to the other side a motion for rehearing, reconsideration and/or clarification stating specifically and in detail why a rehearing should be granted. The hearing officer shall consider this motion and rule on it without having a hearing. If it denies the motion for rehearing, reconsideration and/or clarification, then the matter is final. If the motion is granted, the other side has ten days to respond to the motion for rehearing, reconsideration and/or clarification, and the hearing officer may have a hearing on the motion for rehearing or may rule based upon the motion and response to the motion, or may have a hearing on the matter. The matter is then final upon that written ruling by the hearing officer.
(o) Either side may appeal the determination of the hearing officer to the Circuit Court of Broward County, Florida, through a Writ of Certiorari.
(p) Either side may file a petition for enforcement with the Circuit Court of Broward County, Florida.
(q) A regulated officer or the city manager may seek through a written "request for advisory opinion" a written advisory opinion from the city attorney concerning whether or not a matter that has not yet occurred is a violation of the ethics code, or an interpretation or application of the ethics code. The person seeking such opinion must certify that it is not just theoretical or hypothetical but concerns a matter that is of actual current concern for the person requesting the advisory opinion (and not concerning the conduct of a third person) as to how that person may act. A written advisory opinion request may be given in writing by the city attorney or his/her staff or by outside legal counsel, as the city attorney in his/her sole discretion determines appropriate. Nothing will be considered in the advisory opinion that is not written in the request for advisory opinion. If the facts stated are inadequate to give a written advisory opinion, the person requesting it will be advised in writing. The advisory opinion must be in writing, and the advisory opinion only pertains to the facts stated in the request for advisory opinion and in the advisory opinion. A request given by a person must be given in good faith and an advisory opinion given in good faith may be relied upon by the person requesting the advisory opinion for all actions or inactions consistent with the advisory opinion after the date the advisory opinion is issued, but does not prevent the person requesting the advisory opinion from being charged for any actions or inactions or violation of the ethics code before the date the written advisory opinion is issued. This written advisory opinion will be filed with the city clerk.
(r) The city attorney is to prepare all forms mandated by this Code. However, it is still the responsibility of the regulated officer and all third persons/entities to comply with the ethics code and make all disclosures mandated by this ethics code.
Sec. 2-505. Disclosure and behavior requirements of applicants and person/entity seeking a city contract or currently doing business with the city.
Any applicant for a land use change or development permit requiring approval of the city commission or any person/entity seeking a city contract through a request for proposal, request for qualification, or sealed bid process (all referred to as "applicant"):
(1) Shall not induce, attempt to induce, offer, solicit or knowingly assist any person in violating the ethics code.
(2) Shall with their application, proposal or bid:
a. Include a listing of all campaign contributions to sitting city commissioners in the past four years as well as contributions of all officers, directors, shareholders of a corporation if the applicant is a corporation, or partners if the applicant is a partnership, or members, whether general or limited, if it is a limited liability company.
b. Disclose all those items that a regulated officer is required to disclose concerning any conflict, whether actionable or non-actionable.
c. Disclose any action that is a violation of this ethics code by a regulated officer (in reference to the application) with the applicant and/or the applicant's agents, and what was done to rectify the violation (for example: if a gift was given, when demand was made for return of the gift).
d. An applicant shall fully, completely, accurately, and not misleadingly report and file all disclosures required by this ethics code, and shall fully, completely, accurately, and not misleadingly make all disclosures referenced in this ethics code and not omit material information, and/or file misleading and/or deceitful information in the disclosure.
e. An applicant has a continuing duty to report any violation of this ethics code related to their application.
f. Failure to disclose in compliance with this section shall be a violation of this ethics code and shall be grounds for the city commission to void or rescind any approval or contract.
(3) No applicant shall, directly or indirectly, induce, encourage, or aid anyone to violate any provision of this Code.
Sec. 2-506. Disclosure requirements.
(a) All disclosure forms and annual general disclosure statements are to be timely made as required by this Code. All written disclosure forms shall be filed with the city clerk. All disclosure forms shall be filed under oath before a notary public. All persons required to make disclosures shall fully, completely, accurately, and not misleadingly report and file all disclosures required by this ethics code, and shall fully, completely, accurately, and not misleadingly make all disclosures referenced in this ethics code and not omit material information, and/or file misleading and/or deceitful information in the disclosure.
All persons required to make disclosures have a continuing duty to report any violation of this Code, any conflicts and any non-disclosures.
(b) Annual general disclosure statements. All regulated offices shall file an annual general disclosure. The annual general disclosure statement shall include:
(1) The location of any real property in the city, in which the person disclosing, or his or her spouse or domestic partner, has a financial interest, and the type of financial interest.
(2) With respect to each outside employer or business of the person (business includes, but is not limited to, the person being a sole proprietor, partner, member, officer, director, shareholder, equity owner of any non-publicly held company, but does not include publicly held and traded companies in which the person is solely a passive investor of that publicly held and traded company):
a. Its name (if any);
b. The nature of its business and address;
c. The regulated official's or candidate's relationship to the outside employer such as sole proprietor, owner, partner, official, director, member, employee, bondholder, or shareholder.
(3) With respect to each outside employer or business of the regulated officer's spouse or domestic partner, the information required by paragraph (2) of this subsection.
(4) Annual disclosure statements shall be filed within 90 days of adoption of this article and then shall be filed annually thereafter for the period up through December 31 of each year, and this disclosure shall be filed on or before February 15 of each year. Additionally, for candidates for city commission, whether seeking election or re-election, the annual disclosures statement shall be filed at the time that the candidate files papers to qualify as a candidate.
(c) Conflict disclosure forms shall contain the following:
(1) For a regulated officer(this also applies to a former regulated officer for a period of two years after the termination of his/her being a member of the city commission or city manager):
a. Information required to be disclosed:
1. Name of member of commission or city manager.
2. Date on which the matter which is the subject of the conflict was or is anticipated to be on the agenda and date on which any discussion occurred and on which any vote was taken.
3. The nature of the conflict and/or the required disclosure under this Code. Any matter that is listed in section 2-502 is considered a matter to be disclosed.
Sec. 2-507. City clerk to maintain certain documents on file.
The city clerk must maintain on file for public inspection and, with respect to disclosure statements, the following documents:
(1) A copy of the code and amendments thereto;
(2) A copy of the suggested annual general disclosure statement (this form does not have to be used, but the information required by this ethics code must be contained in the written and oral disclosure);
(3) A copy of the suggested form of annual disclosure for gifts (this form does not have to be used, but the information required by law must be contained in the written and oral disclosure);
(4) Copies of all disclosure forms made under this ethics code;
(5) A list of campaign contributions given to each current member of the commission from the previous election, giving for each member of the commission, the date of contribution, amount of contribution and name and address of contributor;
(6) During a campaign, as each financial report is filed, a list of campaign contributions given to each candidate to become a member of the commission in that current election, giving for each candidate to become a member of the commission, the date of contribution, amount of contribution and name and address of contributor. This list may be removed from the Deerfield Beach website concerning all unsuccessful candidates to become a member of the commission, but the list shall remain for the commissioner's term to the extent consistent with the requirements in the immediate foregoing sub-paragraph.
All of the above information from the immediate previous subsection shall be posted on the city's official website so that the public has the opportunity to view this information.
Sec. 2-508. Definitions.
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Domestic partner is an adult, unrelated by blood, with whom an unmarried or separated official or employee has an exclusive committed relationship, maintains a mutual residence, and shares basic living expenses.
Relative means a spouse, "significant other", domestic partner, or a person who is related to a member of the commission, candidate to become a member of the commission or city manager as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, half sister, grandparent, great grandparent, grandchild, great grandchild, step grandparent, step great grandparent, step grandchild, step great grandchild, person who is engaged to be married to the member of the commission, candidate to become a member of the commission or city manager or who otherwise holds himself or herself out as or is generally known as the person whom the public officer or employee intends to marry or with whom the member of the commission, candidate to become a member of the commission or city manager intends to form a household, or any other natural person having the same legal residence as the public officer or employee.
Sec. 2-509. City clerk to announce disclosures prior to commission consideration.
Before any item or action is considered by the commission at a meeting, the city clerk shall announce the disclosures made on that particular item by the regulated officer and applicant and the regulated officer and applicant shall announce if there are any additional matters that have to be disclosed. The disclosure may be made by the city clerk by referencing the disclosure document(s) rather than the entire contents of the disclosure statement(s).