Essays on PUBLIC ETHICS
PART I. ETHICS AND VALUES
1 -- Public Ethics in Paradise
2 -- Political Action
3 -- Civic Values
4 -- The Public Trust
5 --The Impossibility of Reform
PART II. RESTORING THE PUBLIC TRUST
6 -- Building an Ethics Program
7 -- Setting the Standards
8 -- Codifying Public Ethics
9 -- A City Ethics Commission
10 -- A Plan for Reform
PART III. OTHER PROPOSALS
11 -- Disclosure Laws
12 -- Lobbyist Registration
13 -- Campaign Reform
APPENDIX - DRAFTS
A -- Proposed Revisions of Article VIII
This is a compilation of essays on the ethics of politics and government, civic values, and the right conduct of public officials at the local level published on this website starting in 2003.
In March 2009, the City of Deerfield Beach adopted a code of ethics for elected officials and the city manager, which was later amended, softening some of the gift provisions and tightening procedures for the filing of complaints.
In Nov. 2011, I did some editing work, conforming the project to the evolving style manual of this website. I made no substantive changes.
PART I - ETHICS AND VALUES
1 -- Public Ethics in Paradise
Public corruption abounds in South Florida. Yet, prosecution of public corruption crimes is rare in Broward County. One of the few cases in recent years is the case of Hollywood city commissioner Keith Wasserstrom, convicted in 2007 on multiple felony counts.
Prosecutors aren't much interested in public corruption cases unless they involve high profile crimes. But why do we have these corrupt officials in the first place? Because voters in South Florida don't seem to care very much about the public officials they send to town hall. The election to find a replacement for Wasserstrom, for example, drew 11 percent of the registered voters. This is politics in South Florida. This is politics in Hollywood, Florida. This is politics in Deerfield Beach, which will be the main focus of these essays.
Deerfield Beach is a diverse community of around 75,000 residents, with a substantial minority population, with people of modest means, with many affluent people. In some respects it would be quite an ordinary town, except for one thing: an extraordinarily beautiful beach, there to be picked off by business interests and redeveloped as a "destination" for the rich. For several years, Deerfield Beach has been dominated by a political class closely allied with the business sector wanting to redevelop the beach area, at any cost to the city and its citizens. Part of the cost has been open and honest government.
Do voters want honorable, efficient and responsive local government? They vote against beach redevelopment, but turn around and elect and re-elect the same public officials that cavort with developers and push redevelopment with small voter turnouts and by pencil-thin margins. Reform in the way city and county governments do business seems beyond reach. In Deerfield Beach, even a simple measure, lobbyist registration, could not get the three votes required for passage. Broward County's rules to register lobbyists are in disarray. It is reported that comprehensive reform at the county level has been deferred because commissioners can not agree on the meaning of "appearance of impropriety."
In Palm Beach County, the former commission chairman, Tony Masilotti, pleaded guilty to corruption charges brought by federal authorities alleging a form of mail fraud. He was sentenced to five years in prison. Following Masilotti's resignation from the commission, there came a wave of proposals for ethical reform from Palm Beach county commissioners and media. Then, ironically, one of the most vocal of the reformer-commissioners was charged because of his conflicts of interest in certain matters before the commission. That commissioner, Warren Newell, resigned from the commission and pleaded guilty to a criminal offense.
That's not all. Two West Palm Beach city commissioners were convicted of public corruption crimes. Ray Liberti used his position to pressure the owners of a nightclub and massage parlor to sell the businesses at cut rates to his clients; he was charged by the feds with mail fraud and obstruction of justice. Jim Exline, another city commissioner, is serving time in federal prison for tax evasion. He failed to pay taxes on influence money he received from developers.
Investigative reporter Bob Norman wrote: "Go into any city and open your eyes and you’ll find that a good portion of the public officials are committing crimes and should be put out of office." He named, among others in this axis of corruption, Mara Giulianti, now ex-mayor of Hollywood; Keith Wasserstrom; and Deerfield Beach Mayor Al Capellini. Norman refers to Deerfield Beach as "the most screwed-up little city next to Hollywood."
Keith Wasserstrom, the convicted Hollywood commissioner, was on the take from city contractors and developers. Wasserstrom also had a habit of leaving the chambers just before a vote on matters in which he may have had an interest, thus evading rules that require public disclosure of conflicts of interest. People who attend Deerfield Beach city commission meetings are well aware of Mayor Capellini's own legendary and conveniently timed absences.
As for Capellini: a rags to riches story. When he was first elected to the commission (Dist. 1), Al Capellini was an average Joe in terms of economic status. Public documents showed he derived most of his income from his commission salary. Today, he has an interest in more than 20 companies or projects. His interests include a close connection with Gallo Architects and associated companies, a major developer and construction group.
The preamble of the city charter of Deerfield Beach reads:
The citizens of Deerfield Beach, in order to protect the health, welfare and safety of its residents, and promote honorable, efficient and responsive government, hereby adopt a revised Home Rule Charter in accordance with the Constitution and Laws of Florida.
The city's purpose, according to the charter, then, is to protect the health, welfare and safety of the people who live there. City government does not exist to promote business, economic development, or the welfare of selected public officials and their friends. In the terms of its own charter, city government is supposed to be honorable.
So, what happened to honorable government? In a word, development. It can be called redevelopment, growth, growth management, land-use politics, economic development, vector control or whatever you want: the thirst for new construction or redevelopment of supposedly blighted areas is a major cause of corruption in local government. Add to this that cities like Deerfield and Hollywood have become big business in themselves with enormous treasuries, well positioned to make money for the insiders.
City governments have millions of dollars to hand out in contracts and their own extensive property holdings to be dealt to developers. City governments like Deerfield Beach operate in an ethical vacuum. Deerfield Beach has no rules of ethics of any consequence.
Not all corruption is blatant criminal conduct like bribery or vote fraud. For this we have laws, prosecutors and people like Wasserstrom to make examples of. The real problem that undermines honorable government is "soft corruption" -- such as intimidation or harassment of people who speak out, giving too short notice of pending actions to discourage debate, distortion of facts to mislead the public (or out-and-out lying), or evasive actions to avoid disclosure of conflicts of interests.
In the late '90's, Deerfield Beach pushed a plan for beach redevelopment: City government created a CRA and decided to convert public recreational lands into commercial properties. Public opposition to this idea did not stop city officials. What motivated city officials at the time even to go so far as to instigate secretly litigation against the citizens opposing such projects? Some of them, and some of their friends, had something to gain from redevelopment.
Simple honestly is the core value of any system of ethics. But you cannot legislate truthfulness, fidelity, or dedication. A public official is honest or not honest. If he is not honest, he will not be any more honest the day after a code of ethics is enacted than the day before.
The formalization of the rules of conduct, in the style of a 20th century code of public ethics to upgrade state ethics laws, is a step, but not the final answer nor our core proposal. Deerfield Beach, as noted, has no code, or ethics training, of any sort. It has an interesting, but essentially useless, charter provision concerning conflicts of interest. The state code of ethics, in part, applies to city officials, but is not vigorously enforced and has severe shortcomings. Officials like Wasserstrom and Capellini find ways around the rules. It's not easy for private citizens to press ethics claims. The city commissions have shown little interest in developing a public ethics program. The public has not shown a significant interest in the issue.
Another layer of ethics legislation at the city level is not necessarily the answer. What cities like Deerfield Beach and Hollywood ought to be looking at are strategies, not rules. Public officials and city employees need be educated and inspired. Rules should be uncomplicated and address specific requirements, like disclosure of financial or other interests or registration of lobbyists. Ethics programs should stress values. They should not impose unrealistic conditions of "self-sacrifice" on public servants. The goal is not to create a priestly order of rulers, but basic honesty and common values in city government.
It really starts with honest people. How you get honest people to run for office and how you motivate voters are questions of political strategy, rather than ethics. This is what local activists need to be talking about.
At the same time, the city commission ought to consider lobbyist registration and reinforce disclosure requirements for city officials. Honorable, efficient and responsive government is going to be open government. Fort Lauderdale has a lobbyist registration ordinance that works; it's there to be copied. The city should also appoint an ethics officer to insure that people get the information and help they need at City Hall.
An idea that has been part of the ethics discussion in Palm Beach is fuller disclosure by applicants of who they are. XYZ wants to do business with the city or apply for a variance; state law does not require that ownership details of a closely held company be made a matter of public record for the purpose of registration or the annual report. So who owns XYZ? The only way for the commission and the public to know the answer to this question is to require fuller disclosure, which could reveal conflicts of interest or suspicious connections. City commissioners, appointed officials and advisers could also be required to make full disclosure of their financial interests, employment, and associations.
2 -- Political Action
Another public ethics story in South Florida is almost the reverse of cases of corruption outlined in Chapter 1. This story involves a Fort Lauderdale city commissioner. The commissioner, Charlotte Rodstrom, who had served less than a year in office at the time of the report, had abstained from a record number of votes because of conflicts of interest, which she duly reported. Apparently, this novice commissioner had not heard of Al Capellini's and Keith Wasserstrom's strategy for avoiding public disclosure: leave the chambers for the call of nature.
In the previous chapter, we identified some of the root causes of public corruption at the local government level: development politics, big government, the lack of effective ethics strategies, and the disinterest of public officials and voters in reform or reformers.
Other things which may contribute to political corruption are greed, the lust for power, or the desire for attention. As for the latter, there are those in the political class who serve their patrons for the imaginary glory of being part of the insider élite, as proxies for things that the politicos can't do themselves openly without getting into trouble -- things like suing the city to overturn the results of an election or engineering recall movements against political rivals. These sycophants aid and abet corruption by participating in this deception.
Ignorance or poor judgment may also lead to dishonesty. Peggy Noland, whose husband was a firefighter and union executive, when a city commissioner, simply could not be convinced that her participation in the firefighters' pension fund negotiations on behalf of the city was improper. Likewise, a commissioner in Fort Lauderdale, Vice Mayor Cindi Hutchinson, solicits charitable donations from applicants and city contractors for whom she has given favorable votes (Sun-Sentinel 02/26/07). "I'm doing good things," she says. She denies that she is soliciting and accepting bribes. This could be how other people see it, however. In public ethics terminology, this is called an appearance of impropriety.
Hutchinson, moreover, is not the only Fort Lauderdale city commissioner who squeezes donations from people having business before the commission. Mayor Naugle wants tighter rules to end this practice. But some of his colleagues just don't see what's wrong with this activity. According to a Buddy Nevins piece in the Sun-Sentinel, one of the problems county commissioners are having with implementing a code of ethics is that they cannot grasp the concept appearance of impropriety.
Obviously, there are gray areas in ethics. But most ethics issues can be confronted and solved. The problem is one of resolve. You don't see Deerfield Beach commissioners or officials in most cities pressing for reform. And the reality is that some issues, like development, are inherent in local politics; so it is the direction of policy, not necessarily specific development or land-use issues, that is going drive change. As long as there is money to be made from development and government has the power to promote or limit it, there is the potential for collusion and corruption.
Ideally, development would be guided mostly by economics; in other words, by the most cost-effective and profitable uses of land. Land-use decisions, if made this way, would be a function of the market, not government. But the real world often pits traditional land-uses against the potential profits of developers and land owners, that is, the established rules of the community about where people live, work, play, shop and build versus what developers would like to do with the land they control. Accordingly, the beach may be a wonderful place to build stuff, but the traditions of the community weigh against it in some cases. Thus enters government, politics and public policy into the process, because local government is supposed to protect the welfare of the citizens, which is strongly served by the traditions regarding the uses of land and space in the community. Such traditions may not produce the best solutions for the economy or the city treasury, but they do protect the residents and quality of life in the community, if they are adhered to.
How does this corrupt local government? First, because certain types of development may potentially benefit the city's fiscal position, the direction of land-use policy may change from protectionism to promotion of development regardless of how it effects the town in other ways. The argument is that the narrow private interests represented by developers ultimately serve wider public interests. A development-proactive city can also change the economics of development or redevelopment by shifting some of the costs of development to the taxpayers and also by conveniently overlooking the adverse social impacts on the community in favor of proposed construction or land-use changes. This is especially easy to do when developers are the major contributors to the re-election campaigns of incumbent officials or the officials themselves have direct or indirect personal interests in development.
One can see how this process has worked in Deerfield Beach. The land development guidelines, which presumably reflected some of the traditions of the community with respect to the beach area, had been routinely disregarded by the city commissions to allow projects which may not have been viable without numerous variances and exceptions to the code. In 2002, voters changed the model for land-use policy in this city by chiseling the traditional rules into the granite of the charter. Pro-development city officials like Al Capellini, predictably, opposed these charter amendments. City commissioners can amend or just ignore the code, but they can't touch the charter. In this case, city officials used proxies to sue the city to try to overturn the referendum.
Moreover, city officials not only represent the public interest with respect to development, but also act from the same position as developers in certain cases, that is, as landowners who control choice parcels of real estate and air rights. Because the marketable value of city property theoretically increases as land and space become more scarce, public officials not only have to deal with private landowners who want to use more and more of their limited space (that is, build out and farther up). The commissioners themselves "own" land and space that have potential for development. In other words, there are in some respects built-in conflicts of interest when the use of public lands is the issue, especially when some city officials have connecting interests in the deals.
A parking lot at the beach is not the most beautiful place in the world. It serves useful functions. It's a place for beach-goers to park their cars because no matter how many spaces there are, there are never enough. It's a place to site an annual festival and hold other community events. It's a "sea of asphalt," according to its detractors, that could be replaced by walls of concrete and stackable parking -- rentable space, of course, that will enrich the city coffers.
The first plan for the Main Beach Parking Lot was proposed by a Canadian developer. Voters indirectly vetoed the proposal by deciding that they, not the city commission, should have final say-so over the disposition of valuable city property. Voters amended the charter and the developer huffed away.
City commissioners don't seem to hear what the public is saying about what it wants or doesn't want for the beach area. They proposed Ocean Park. They become developers, in effect. They lied about the true scope of the proposal. Obfuscated the plans. Sprung surprises. Used taxpayer money to pay for propaganda. They didn't tell who gets the millions it will take to build this project. Voters rejected Ocean Park.
City commissioners still did not seem to hear the public. Ocean Park rejected becomes a parking garage without the commercial plaza. "Everybody-wants-more-parking." Who got the contract to design this building? The mayor's business associates. Voters, once again, were driven to amend the charter; no big parking garage, no big construction on the Main Beach Parking Lot, they decided. Voters wake up whenever there are radical plans for the beach area.
So the question here is whether voters can be woken up to the crisis in public integrity that such proposals exemplify. Most public officials and the public do not seem to be interested enough to get effective reform. It's fine and well that some officials, like Mayor Naugle of Fort Lauderdale, want to enact more laws; but other commissioners shrug or want to compromise. How do you compromise ethics or civic values? How do you achieve reform in a climate of compromise or apathy?
The answer is political action. The start has to be with honest people who are willing to do something. When honest people run for office and voters put them in office; and when these reformers do what needs to be done, without compromise or lame excuses, whether it be better rules, programs, or education -- this is when real reform could begin.
Of course, it can be argued that cities run by honest officials and administrators don't need reform. Up to a point, this is true. If the city manager is honest, then we don't have to worry about deception, buried files, secret connections, coercive tactics, ticket fixing, or inappropriate partiality. An honest city administrator is not going to engineer a suit against the city, to undermine an election with which he disagrees, whether it's against the rules or not. He's not going to support candidates for office secretly or seek to depose those who question his program.
All of the successful local movements -- the city land amendment, the defeat of Ocean Park, the charter amendments on the parking garage and land-use -- were started by a relatively small, loosely organized group of beach activists, not by an uprising of the masses. The activists behind these movements were not slick operatives, but political irregulars, with more grit than money. They did not know you could not win a political election without a well-financed campaign. They were ridiculed by the local Establishment press as a small minority who were against "everything." Nevertheless, they prevailed. It could be the same for ethics reform.
There's an earthy saying in the military: If you have a guy by the balls, his heart and mind will follow. Now perhaps this principle would apply to public officials, even those not enthusiastic about ethics reform. If elected officials see the public waking up and beginning to take interest in honest local government, they may begin to understand better such concepts as appearance of impropriety. Look at how all the Palm Beach County commissioners suddenly became reformers when Tony Masilotti was indicted and sentenced to five years in prison. But the main wake-up will probably begin with grassroots political action.
3 -- Civic Values
A complete discourse on public ethics must go beyond a consideration of basic honesty to a discussion of right conduct in its many aspects.
An honest public official is likely to be professional in the way he conducts himself. He's not necessarily a good guy. He could be vindictive or reactionary, yet gracious and civil in the way he deals with citizens. He may be truthful, faithful to his word and dedicated to his job, yet take actions which are perceived as improper or dishonest.
In other words, right conduct as we are using the term is more than technical conformity to certain codified rules. Most codes of public ethics deal with specific issues, such as conflicts of interest, rather than right conduct expected by community values and traditions.
A typical local government code of ethics deals with certain topics and prescribes rules and procedures with respect to them:
1. Business transactions that elected officials and city employees may have with the city. Example: Regular employees of a city department are awarded an independent contract (that is, work off the clock) to conduct training of department personnel.
2. Conflicts of interest. There are State laws and, in Deerfield Beach, a charter provision, which provide standards for conflicts of interest. Aside from conflicting financial interests, there may other "lawful interests" which appear to be improper.
3. Soliciting or accepting gifts from outside parties. Example: City commissioners solicit charitable donations from persons doing and having business with the city. This is a fairly common practice in South Florida.
4. Exploitation of his official position by a public official to secure special privileges and exemptions for himself or others.
5. Employment or any activity that may require or induce a public official to disclose confidential information acquired through their position or to use confidential information for personal gain or benefit. Example: A major contract is awarded to an elected official's business partner after a supposedly competitive process. Is it reasonable for the public to suspect that the winning bidder had an advantage over other bidders?
6. Requirements for financial disclosure. Palm Beach County is considering a law to make contractors and other applicants reveal more about their principals. Disclosure, of course, is intended to prevent conflicts of interests by making such interests a matter of public knowledge.
7. Restrictions on outside employment.
8. Restrictions on public officials from engaging in lobbying activities after leaving office and other requirements, such as registration, applicable to lobbyists.
9. "Cone of silence" on communications between potential contractors and city employees.
10. Restrictions on public officials and city employees transacting business with persons who do business with the city. The fact is, everybody in this world has friends he would like to help if he were to have the position and power.
These are rules and procedures. Rules, as they say, are made to be broken. Thus, codes of ethics can become "technicalities" in the hands of unscrupulous public officials, evadable with a little creativity. While it may look bad that the mayor's buddies get the umpteen million dollar contract with the city over four or five other competitors, there's nothing about "technicalities" like this that can't be solved by just abstaining from, or missing, the final vote.
Deerfield Beach does not have a written code of ethics, nor seems to have a common sense of what is right conduct by city officials and employees. So hardly anybody flinches when deals like this go down; the commissioners who voted for the contract swear they did not know the winning contractor was the mayor's business associate. They weren't told such in as many words. Is it conceivable this contract was fair, honest and above-board?
It is precisely when you have deals like this that the concept of values becomes relevant. In an innovative ethics program adopted by the City of Santa Clara, California, the Code of Ethics and Values enumerates and discusses certain core civic values, and how they apply to the conduct of public officials. Elaborate technical rules, such as conflicts of interests, are absent. The Santa Clara code is not a standard code of ethics mimicking those of a thousand other cities, but provides a broader framework for right conduct by public officials and employees. This strategy is discussed further in chapter 15.
There could here follow a dissertation on the meaning of values that might apply to the civic business of a community. For now, the discussion will focus on the derivation of civic values and how they seem to have broken down.
Quality of Life. Quality of life in the community is one of the most important questions of local government, but also one of the most subjective. Whose ideas and values decide: those of the most powerful, or is it a wider consensus of the community? There is further the problem of how we arrive at a consensus, if that's the answer, when divisive issues are involved. In the case of beach redevelopment in Deerfield Beach, both sides claimed they had the popular will with them, either for extensive development or restraint.
Individuals have different notions about what life in the community ought to be. For example, there was a letter to editor of the local paper by a resident of Deerfield Beach. She praised the new development that had happened in the beach area which made it an "international destination," to use her phrase. This reflected a view, also stated both by the administration and the local media, that putting the city "on the map" was necessary and proper. On the other side of this, Deerfield Beach had always attracted tourists and many people -- the beach activists, especially, and, when it came time to vote, many voters -- believed that the city's redevelopment vision would degrade the quality of life for most citizens and benefit only narrow interests. They would question how the quality of life for the ordinary resident would be improved by crowding the beach area and taxing the infrastructure with tourists from Latin America or even Boca.
The underlying hypothesis is that most people (the adults who have a choice), regardless of their personal values, live in the community because they like it. There may be different reasons why they like it, but here there is possible common ground, to preserve whatever it is about the city that people think makes it good. When an idea comes along which upsets the common interest of a large segment of the people, quality of life becomes an issue. This is what happened with beach redevelopment. The majority of residents would not benefit directly, even if some would, by gentrifying the beach area and expanding the commercial sector with more bars and restaurants. The business sector (e.g., the Chamber) and the politicos saw benefits that would outweigh the negative impacts of development on ordinary people. Eventually, they felt, the people would come around.
What the city should be like, then, and therefore the goals of the community, are defined by self-interests, either of the most powerful, or as a weave of individual interests that form a "consensus." The usual perception is that public ethics rejects personal interests, and that self-interest must be put aside when one assumes public office. This implies that there is an abstract public interest, apart from all private interests, that overrides all private and self-interests. But how can this be when the common ground, that is, the prevailing view of the community, is in reality a meeting of self-interested minds of the individual members of the community?
Part of the answer is to recognize that nearly all human action is based on self-interest. This may not be the message at Sunday Meeting, but it is the practical truth.
People do what is best for them. They vote for the candidates and the ideas that they think will benefit them the most. Public officials, likewise, do not belong to a priestly order. They cannot wholly detach themselves from their own interests, be they financial or ideological. Unrealistic expectations placed upon public officials and employees concerning "conflicts of interest," therefore, are self-defeating and bound to become "technicalities" to be violated or circumvented.
Likewise, not all self-interests collide; if that were the case, there would be no community, no town, no city. Everything about life in the place where people live, work and play would simply be imposed by the strongest. As long as the potholes are filled and trash picked up by the ruling party, public ethics is not much of a concern. However, in real life, there is more to a community: there are common interests. There is a common interest in maintaining a city where people will desire to live, now and in the future.
Public Ethics. Codes of public ethics, as we have already seen, mostly pertain to conflicts between the personal interests of public officials and the public interest, setting forth various rules, disclosure requirements and procedures designed to prevent conflicts and appearances of impropriety. Other elements of right conduct, such as fiscal responsibility, are not usually addressed in codes of ethics.
Can one legitimately ask, therefore, what's wrong with a conflict of interest or the appearance of a conflict of interest, as long as the government is reasonably competent and the public is well served in the final analysis?
It's not necessarily a hypothetical question. This happens, in effect, when voters re-elect someone to office who is notoriously corrupt. This can be rationalized. Voters may feel it makes no difference if an office holder or his friends benefit financially or gain advantage from his power and connections, if the government provides effective services to the residents. In fact, soft corruption, such as doing things in secret in an unlawful way, could serve certain efficiencies in government.
It would seem, then, that there must be some rational basis for public ethics, which extends, in fact, to the whole of ethics and moral philosophy. Why is it wrong to lie, cheat and steal? Or is it? This is the most provocative question that can be asked in an academic discussion of ethics, both personal and public. It is wrong, most of us would respond, but why this is so is not as easily answered. You can bet that the minds of some public officials, it isn't wrong as long as they get away with it and serve the public well enough to be re-elected or retained in office.
Remember the public hearings after City Manager Larry R. Deetjen was suspended from office the first time. Literally hundreds of people lined up in the commission chambers -- many of them prominent members of the business community -- to tell the commissioners what a wonderful city manager we had in Mr. Deetjen. He made some "mistakes," they admitted. But he was irreplaceable. The city would go down the tubes without Larry R. Deetjen. The city would be swept away by hurricanes if Deetjen wasn't there to deflect the winds.
There was little discussion about the wrongs that had been committed, the betrayal of the public trust that had been alleged. It did not seem to matter to most of these people. And the commission, finally, was persuaded. So much for civic values.
This is why we wrote that Deerfield Beach no longer seems "to have a common sense of what is right conduct by city officials and employees." The absence of values is especially obvious among those who are the most influential and powerful.
Open Government. This is a system of government in which there is a practical degree of public participation. More importantly, the extent and the ways that the public is involved are decided by the public, not by officials or government employees.
Florida has one of the most rigorous Government-in-the-Sunshine Laws in the nation. The Public Records Act makes nearly all government documents accessible to anyone, regardless of their reasons for wanting to see them. But open government is more than a set of laws which can be selectively enforced. It is the principle that government should operate as openly as possible and keep secrets only when it is essential to the public interest. As a practical matter at the local level, there are almost no records or proceedings that can be kept secret lawfully. Even in cases when the law permits local councils to meet behind closed doors, verbatim records of these meetings are required to be kept and may be unsealed when secrecy is no longer necessary (e.g., when the subject litigation is settled or concluded), or when otherwise in the public interest.
Open government laws are intended to keep cities and other governmental units honest, or more honest than they might otherwise be, and also, they insure the public a chance to be heard on any proposed action. It works, in theory, on a common sense principle: if you are going to do something that you would not want made public, then it probably isn't right.
No system is perfect and obviously dishonest officials will not be purified by open government laws, or open government in principle, anymore than they will be deterred by ethics laws. They can find ways around. A good example comes from the recent history of Deerfield Beach with the former city manager, Larry R. Deetjen. Deetjen liked to do things secretly. He liked "buried" files and "confidential" memos. He secretly helped litigants against the city in the 2002 charter referendum suit. When this came to light, his defense was that he had been directed to do so by the commission meeting in a "shade meeting." Neither the public nor most of the sitting commissioners knew what happened at the secret meeting, which occurred in the previous commission term. Accordingly, the records were ordered unsealed by the new commission. Let's see just what transpired at that meeting. It was proved that the commission, only in Deetjen's farthest out imagination, had directed or authorized his actions. The minutes of the meeting also showed that the commission had far exceeded its authority to hold a secret meeting; even the city attorney, on the record, expressed his discomfort with the discussion that occurred, which mostly was about how the city could retaliate against the citizens who initiated the referendum.
Here was a situation in which open government worked/did not work. Deetjen used secrecy to cover his probably unlawful actions. In the end, the strategy backfired and the lie was exposed. Partly for this reason, Deetjen is no longer in Deerfield Beach.
The Social Compact. It is submitted, then, that for all the diversities of personal interests in a community, there is far more agreement than conflict on the fundamental principles that define the civic values, goals and public ethics of the community. You will not find a copy of this compact in the library, or online at municode.com. It's embodied in the laws, traditions and common understandings in the community. It could be thought of as "the sense of the community" or a "public philosophy" that has evolved over generations.
The latter term, invented by the journalist and political theorist Walter Lippman (The Public Philosophy, 1955) refers to a system of values and ideals that are the foundation of a community or a nation. Those truths that we hold to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, is the public philosophy of a nation. That a city should be a good place to live and embrace people of all kinds may have been a philosophy that most people in Deerfield Beach might have agreed upon at one time.
If there ever were such agreement, it is certain that there is no longer. In the redevelopment fever that began in the '80's and '90's, the political class drew a new blueprint for the city. The goal, now, was not a safe, healthy and livable community, but a "dynamic city." The "dynamic" would be homes and property taxes that most people could not afford; a destination beach play ground for the upper-classes; a beach area, as the local editor wrote, devoid of "undesirable" people.
Quality of life was considered as a trite and obsolete ideal by the city leaders at that time. They held the future to be about growth and money. In the Deetjen era, the public trust was tarnished. Professional administration was replaced by politics. Fiscal responsibility, truthfulness, respect for citizens, open government, progressive government -- these core civic values no longer had force and effect in the political life of Deerfield Beach, or, for that matter, any of South Florida.
4 -- The Public Trust
In Part II, I shall propose amendments to the charter of the City of Deerfield Beach for campaign reform and to state clearly and boldly the People's and the city's commitment to open and ethical government. There is no illusion that this will be easy; the reality is that nothing like these proposals will be enacted until Deerfield Beach -- both the People and the politicians -- is ready to be honest in its public business.
A city cannot legislate integrity. It can write a code of ethics for officials and public employees, but can not impose honesty. Honesty must begin with public officials who believe in core civic values. A public official must be honest in his own values. He must think to himself and declare to others: I will tell the truth, I will keep my word, I will be professional, I will treat citizens with respect, I will cooperate, I will do my job to the best of my abilities, I will listen to the public, I will be progressive.
In the first chapter, we stated that the commission could act now with less complex measures towards ethics reform. This could include a requirement for registration of lobbyists, fuller disclosure requirements for city contractors and public officials, and campaign reform. Comprehensive reform, however, will require not only public officials who want it, but a movement among the public to demand it.
The fact is, this city and most others like it are run by small groups of people. Most people don't vote. Less than ten percent of the residents control who will serve as public officials and what will be in the charter. Not many people attend commission meetings, or watch it on TV or the Internet, write letters to the editor, or even concern themselves with civic affairs. The people who have the stamina to read through this treatise are interested in local affairs and well informed, but how many residents of Deerfield Beach know who the city manager is; or the name of the mayor?
There are no signs that an uprising of the masses is about to occur demanding ethics reform. Residents seem more upset with property taxes, soaring insurance costs, government waste and other pocket-book issues. People are probably more concerned with new trash collection rules than with abstract questions of public ethics. But, we don't need a mass movement: one of the most effective political groups in the history of this area, the OSOB, has only a handful of active members, probably not even a percentage point of the residents or registered voters of Deerfield Beach.
Local politics has changed, of course, since the 2005 election, and partly because of the activists. Larry R. Deetjen is gone; that's a positive because no effective ethics reform would have taken place as long as Deetjen was in charge. On the other hand, only one member of the city commission is publicly committed to ethics reform. Two members have stated they are opposed to reform. The chances of reform will increase only if committed, honest officials are elected. Realistically, the improved chances for ethics reform now could as easily disappear after the next city election.
In the just previous chapter, a sticky question was raised. It's not just academic, because in every election corrupt people are returned to office in towns and cities everywhere. The question is, what's wrong with lying, stealing, cheating officials, if the city works well, generally in the public interest?
There is also the fact that the different civic values do not seamlessly interlock into one standard of right conduct. An official can be honest, but not be very professional. He can be competent, but uncivil and disrespectful. He can be gracious, but lie and do unlawful and dishonest things. Criminals are not necessarily brutes; crude people are not necessarily liars and thieves.
Yet most people would agree that lying, stealing, and cheating are wrong, even if many, on the other hand, are willing sometimes to forgive or overlook dishonesty. There is an agreed principle or imperative, a rational basis to ethics, a reason why it is wrong to lie, steal or cheat. The imperative in the case of the ethics of politics and government is the public trust.
What many people did not understand in the Deetjen affair is what he had done that was so bad as to require his dismissal, given the fact that the city administration was generally effective during his time in office. In fact, no one really disputed his credentials or competence as city manager, and these were not core issues in the suspension hearings. What he had done, in the view of his accusers, was to betray the public trust. This justified his removal from a position of authority that required the public trust. His embarrassing verbal confrontations, first with a city commissioner and later with a parking official at the Palm Beach airport, served as catalysts to investigate his actions and to make a decision about his continued service. These incidents could have been resolved with discussion and apologies. The betrayal of the public trust by aiding litigants against the city in an attempt to overturn the results of an election required definitive action by the city's elected representatives.
A public official is vested with the requisite powers to discharge the responsibilities of his office. Aside from the legal implications of giving someone in Deetjen's position this mantle of authority, the investiture of considerable power over the lives of ordinary people also represents the confidence that people have in the person who has, that is, is entrusted with, that power. The public trust is the imperative. If he commits or subjorns perjury, or lies, it is difficult -- logically impossible -- for the public confidently to believe that the official is truthful in any respect. This implies that truthfulness, or honesty, is a civic value. As we all know, however, there are cities run by criminals who do so well enough in the eyes of the voters to remain in office; here, obviously, honesty is not the stronger value.
It would seem, then, that there are two models of the public trust. One is public trust built upon the agreed principles of right conduct in civic affairs, such as truthfulness, fidelity, and professionalism. On the other hand, where the usefulness of local government in the service of special or insider interests is the political dynamic of the city, civic values and principles of right conduct such as these may be displaced. After all, speaking the truth or keeping one's word can be inconvenient. An honestly informed public invites dissent and delay. Why would any public official admit his loyalties are not to the citizens?
5 -- The Impossibility of Reform
If it were the very nature of politics which permits, encourages and even necessitates unethical behavior on the part of public officials, then it would seem almost impossible to have government free of corruption for very long.
Let us take as the starting point of this discussion: elections. Politics in the first instance is about gaining office (which sometimes means winning an election), getting power, then using it to some end. The purpose of this scheme is not necessarily good or your perception of good. An election can be a contest between the lesser of evils, as it were. Nevertheless, all people -- good or bad -- have personal interests, values, and commitments. It is virtually impossible for an elected official to abandon his own self-interests absolutely, and further to turn his back on friends and the people who helped him gain office, regardless of the relative virtue of his position.
The title of this chapter proposes that reform is not possible. In fact, ethics reform may not be possible without basic institutional changes. But if change is not possible, then what?
Then, reformers must work around the things that make reform difficult or impossible. A significant barrier to effective reform is the sober reality, as well, that dishonest officials will also find ways to work around ethical standards that are "inconvenient" to their particular interests.
Political institutions may be created to provide better government for the citizens. This does not mean that they will necessarily operate on a high moral plane. In theory, city governments, for example, could be entrusted to a select group of uniquely qualified, highly ethical, people. This was a core principle of Plato's model state, where all public affairs were entrusted to "guardians," men who are specially educated for such matters. But, that's not how we do the public business in this country. Western liberal political theory holds that the people are sovereign and that public officials govern with their consent. Thus, many key officials are elected by voters in order that they (the good, the bad, the smart, the stupid) are accountable to the people. The dilemma is that public corruption often begins with this very process: empty promises to woo voters; campaign contributions with an attached condition of favorable treatment; less than honorable conduct on the part of candidates and election staffs; and, all too often, less than quality prospects for office; topped off by voter apathy and ignorance.
City managers are not elected. They are, in theory, the modern-day guardians of public affairs at the level of local government. They are "above politics." As the council-manager form of government, by definition, elevates professionalism as a core civic value, this implies a higher level of competence and a higher standard of conduct in the administration of the city, than if it were in the hands of political appointees. However, this works only if both the councils and the professional managers abide by the separation of administrative and policy-making functions. Once the line between politics and administration is breached, the city manager is vulnerable to the same corrupting influences as those who occupy elected political positions. Another way to state this, is that the efficacy of the council-manager form depends, in part, upon the integrity of the person who is employed as city manager and his ability to adhere to the standards implicit in the council-manager form.
It is self-evident that corrupt people elected or appointed to public office corrupt city government. It follows that the most assured way to achieve honest government is to bring people to positions of public trust who are honest, tell the truth and conduct themselves in right ways.
The most sophisticated redaction of public ethics, civic values and right conduct, however, will not purify anyone. Criminal laws do not stop murder, theft, or perjury. Criminal laws punish, and thus empower the state to deal with criminals. It is the same with codes of public ethics. Ultimately it is the electorate which decides who will run the government.
The question is whether dishonesty in government is institutional. Are there, in other words, some aspects of government and politics which almost inevitably lead to corruption, regardless of who may be entrusted with its administration?
It is axiomatic that power corrupts. The premise is that people are prone to do bad, and when you give them authority, most will abuse it. Checks-and-balances is based on the common sense proposition that there is always the potential for those in power to overstep the bounds of their authority and do bad things, or do it badly.
Machiavelli suggested that the only real concern of those who seek political office is the acquisition and maintenance of power. The implication is that because power is the means to the end, whatever is to be done, regardless of its virtue, has to start with the quest for power. There are those, then, who seek power; it may be for a worthy goal, or for prestige and privilege, or just for its own sake. But the first order of business is a position of power, not the good that might be achieved. This means that anyone who seeks to reform local government must walk the same path to the ballot box as those who oppose it.
The fact that elections are conducted in a kind of "free market" environment does not mean that the process is inherently corrupt. It does encourage and facilitate unethical practices by public officials and those who seek office. The hard reality is that anyone who wants a place on the governing board of a city must run in an election. In order to have a chance of winning that seat, a candidate must finance a campaign and curry favor of voters and contributors. Anyone who runs for office becomes indebted to supporters who have their own specific interests. Finally, after gaining office, the virtuous person is also faced with the prospect of governing the very institutions he may want to reform.
Nonetheless, reform is useful and worthy of the efforts, even if there are institutional barriers to achieving a "perfect" ethics. Politics ultimately relies upon imperfect, corruptible, or already corrupt people who are not going to be washed clean by a wave of reform. Reform should not be approached as a baptism, but as a series of measures to restore and maintain the public trust. The keys to effective ethics reform are as follows:
First, to develop a community consensus which requires honest government. Every city has a system of public ethics. The difference is whether it is a system of ethics grounded on civil values like honesty and professionalism, or other values.
Second, to write some specific standards of right conduct. In the last chapter, I intend to propose that Deerfield Beach try something different from probably anywhere else in Florida.
Third, to create independent ethics tribunals.
Fourth, to institute other measures, such as fuller disclosure procedures, to help assure that the citizens have confidence in their public officials and city government.
Finally, in the longer run perhaps, to make institutional changes, where they are practical and possible.
PART II - RESTORING THE PUBLIC TRUST
6 -- Building an Ethics Program
If ethics reform were a simple matter, the city could just copy a code of ethics from the many codes already in existence. It would then have its own set of guidelines for the right conduct of public officials and city employees which it does not have now. But would it have ethical government?
The answer is that it isn't that simple. Bear in mind that Deerfield Beach already has a provision in its charter regarding official conduct, and the charter also calls for honorable government. No one knows what these provisions mean. If honorable government were enforceable, some of our officials, past and present, would have been out of here a long time ago. Still, Al Capellini is right in at least one respect when he says that Deerfield Beach does not need a city code of ethics -- ethics laws already exist at the state level, and another rule book would only add a secondary and mostly duplicate layer of rules to be creatively broken. Capellini and other public officials like him understand that they are not going to be made good by legislative decree.
In the previous chapter, it was suggested that ethics reform is impossible -- impossible, that is, without a heavy dose of reality about what makes people tick and some innovative thinking. We must think in terms not of rules that set impossible standards, but of strategies: first, to build a consensus in the community in which most people expect honesty on the part of public officials and city employees; and second, to find a way to a better public ethics where the political will does not exist to reform the aspects of politics that contribute to unethical behavior.
The competitive nature of elections invites dishonorable and corrupting behavior. The council-manager structure, which turns the administration of the city over to a "professional" -- meaning non-political, highly qualified -- person selected after an exhaustive search, provides, in theory, a counterpoint to the seedy political side of government. Nonetheless, the key policy-making positions must remain elective to insure that citizens have the final say-so on public policy and in the conduct and character of public officials. There seems to be no better way to select city commissioners than by a vote. Apathy is a just another reality of politics.
Moreover, Deerfield Beach over the last few years is a case study in how the city manager's office can be politicized, departing from the professional ideal, and thus subject to the same corrupting influences that infect the political side. In Deerfield Beach, the question is, was the city manager corrupted by the politics of the city, in which case it would follow that he was corruptible, or did he himself corrupt and politicize the office? In either event, politics is a dirty business, and even halos get dirty in the political arena. That goes for both appointed administrators and for well-intentioned, reform-minded elected public officials.
How can reformers, then, tackle the practical problems of public ethics at the local level?
In the previous chapters, three major themes emerged.
The first is that public ethics are grounded on values which reflect the agreements of the community on the right conduct of public officials and the proper functions of local government. This does not necessarily result in honesty, truthfulness, or professionalism as these may not be the dominant civic values of a community.
The second theme is that while values have a rational or semi-rational basis, the main imperative for core values such as honesty and professionalism is the public trust. The public trust may be defined as either the legal duties and responsibilities of public officials to the public, or as the confidence that the public has in those in whom the public trust is vested.
The standard premise of codes of public ethics developed over the past century is that government service as an elected official or civil servant is a public trust which requires that loyalty to country, ethical principles, and the law be placed above private gain and other non-public interests. Citizens have the right to set ethical standards that require public officials to conduct themselves, both on and off the job, in such a manner as to avoid even the appearance of a conflict of interest between their official responsibilities and their personal affairs. Truthfulness and competence are essential components of public integrity. Good government is responsive to the needs of its citizens and conducts its business openly. It treats all persons fairly, with due process and with respect.
However, the standard premises and traditional ideals of public ethics, while attractive, do not apply consistently in a world in which local government is nonetheless big government whose principal functions are the regulation of land uses and the provision of business-like services. Core values have shifted from good government to government which provides good service. Therefore, any effective ethics reform must be based on realistic expectations of honesty and professionalism rather than high-sounding rules that can be disregarded at will.
The third major theme, consequently, is that there is an institutional basis for corruption in politics and government that cannot be overcome by a simple statement of rules and procedures. Reform, to be effective, must occur in consideration of these influences, when basic institutional changes are not within reach.
Based on the previous discussion, it would seem that the logical starting point for ethics reform at the local level would be the election system. Conventional proposals call for stricter campaign finance rules (limiting contributions, stiffer disclosure requirements). Other ideas are peripheral measures like term limits and moving election dates to correspond with general elections of greater interest. A more radical proposal is public financing. The problem is that elections are mostly regulated by state laws, so that local governments may be limited in what they can do for reform and may be preempted from doing anything in the most significant problem areas.
There are other "simple" measures that might be tried in the shorter term without any formal plan of action. But lobbyist registration, as an example, is more a tool, than anything else, for citizens who are interested in knowing the people public officials are talking to. Such rules, while useful, do not solve any particular ethics problem as there is nothing inherently unethical in meeting with public officials or public officials meeting with lobbyists.
Comprehensive ethics reform, if it happens, is likely to have some sort of compass and broad public support. This support may be documented, as in the Citizens' Bill of Rights ratified by Broward County voters, or manifested in the election of city officials committed to reform. It is on this base that ethics guidelines, education and oversight might be built for an effective ethics program.
7 -- Setting the Standards
Public ethics consists of standards for official conduct which are established or agreed to by a community as a whole.
The personal integrity of public officials and city employees is the basic component of any system of ethics. Honest officials tell the truth, keep their word, do a good job, set aside personal interests which conflict with the public interest, do the best they can in representing their constituents and faithfully serve the citizens of the city. They do not steal or misappropriate public funds, even under a pretext of serving the people. In both their personal and public lives, they try to avoid even the appearance of impropriety.
While good government always starts with good people, the operating philosophy of the city government sets a standard for official conduct which transcends the personal integrity of its individual members. Is city government an open and responsive government, or one operated by and for insiders, with information concealed and the public record distorted to support special causes? Is public opinion casually and arrogantly disregarded, with public business conducted in the shadows?
If the leaders of the community do not set the proper standards, it is the right of the citizens to write the standards. The city charter should insure that people are able to get complete and accurate information from the city and require that the business of the city be conducted in the open and with fairness to all concerned:
1. The city charter should state the right of all persons to truthful and accurate information from commissioners and city employees.
2. The city charter should state the right of all persons to access city records.
3. The city manager should be required to maintain a record of all meetings or other communications he has with any outside person concerning the business of the city.
4. The city commission should require the registration of all lobbyists.
5. The city charter should state the right of citizens to appear and to be heard before the city commission or city board or committee.
6. The city should provide notice of public hearings at the earliest practical time after it is known that the matter will be heard by the city commission or by a city board or committee.
7. The city should not use of public property or its taxing power for the benefit of private individuals, partnerships or corporations.
A major component of these proposed standards concern the right of the public to access public records and to be provided truthful and accurate information from city officials. To implement this policy, city ordinances should specify that:
"Any Person may request from the city government any fact, information or public record concerning the business of the City which may be in the records of the City or known to a City employee, and it shall insure that any such fact, information or record provided to the requester be provided in a timely manner and that the disclosure shall be accurate and complete."
While some federal and state officials have authority to classify documents to protect the confidentiality of the information, there is no such lawful authority on the part of city officials. There is almost no information in the possession of the city or a city employee, whether documented or just in the head of the employee, that is protected against public disclosure, regardless of the motives of the requester in asking for the information. State law does exempt certain specific types of public records from mandatory disclosure, but this does not imply any sort of general authority of local officials to classify records in their custody; and it certainly does not justify hiding, misrepresenting or distorting facts by public officials.
Therefore, if a citizen asks for some information from the city and that information is either part of a written record or something known to an employee, it should be provided to the citizen, and it should be complete and accurate.
8 -- Codifying Public Ethics
Codes of ethics deal primarily with conflicts of interest and situations which may undermine the confidence of citizens in their public officials. They typically are complex documents which define the nuances and distinctions that occur when there is tension between an official's public responsibilities and his personal interests.
Public ethics laws try to establish standards for right official conduct at least in this one area. At the same time, they must not to be so restrictive as to encumber an official in the proper exercise of his legal responsibilities.
The City of Deerfield Beach does not have a code of ethics, as such, in its code of ordinances, but it does have a broadly worded charter provision for official conduct (§ 8.02). This provision sets out a standard for conflicts of interest which is different from the state ethics code.
Art. VIII, § 8.02, provides, in effect, that if you work for the city or you are a city official, and you have any kind of personal interest in any of the business of the city, you are required to make your interest known. If your interest is "substantial," you can't participate in any way in any decision about that business. If you do, you are guilty of malfeasance and you forfeit your office. State law says only that a local official cannot vote on a matter "which would inure to his or her special private gain or loss..." This provision will be discussed more fully in a later chapter.
However, public confidence in city government requires more than just technical compliance with a particular set of rules. Citizens have a right to expect public officials to conduct themselves, both on and off the job, in such a manner as to avoid even the appearance of a conflict of interest between their official responsibilities and their personal affairs. "Appearance of impropriety" has been an important concept in dealing with conduct in which particular circumstances create an appearance, from the perspective of a reasonable person with knowledge of the relevant facts, that the law or ethical standards may have been violated.
Thus our proposal: A working draft of a revised article VIII of the city charter (which includes § 8.02) is presented in Appendix A. This draft is modeled after ethical guidelines already in effect in some jurisdictions, including federal rules. The draft includes provisions similar to the Citizens' Bill of Rights adopted by voters in Broward County and Miami-Dade and mandates a code of ethics for city officials and employees.
This proposal incorporates a provision which requires that public funds be used only for the programs and purposes for which they were authorized. This provision along with another proposed provision that city officials "shall not knowingly make unauthorized commitments or promises of any kind purporting to bind the city government" are intended to make clear that secret deals or other unauthorized expenditures by city employees have ethical, as well as legal, implications. It additionally provides that the city manager or other staff members acting for him must report all negotiations or discussions with outside parties concerning the city business. It is during such meetings with outside parties that unlawful or previously unauthorized commitments may be made.
9 -- A City Ethics Commission
Possibly the most difficult issue to be addressed in ethics reform is how to create a tribunal to consider allegations of unethical conduct which is itself immune from politics and corruption. To be effective, such a tribunal should have subpoena power as well as the power to make findings and determinations which respect to any complaint. It must be impartial and truly independent of any political influences or favoritism. The complaint process, also, should be made as simple as possible so that there is full citizen access.
The Miami-Dade County Commission on Ethics and Public Trust, an independent agency composed of five members, could serve as a model for such a tribunal.
To assure its independence, two commission members are appointed by the Chief Judge of the Eleventh Judicial Circuit. The deans of area law schools each appoint one member. The director of Florida International University’s Center for Labor Research and Studies appoints a fourth member. The fifth member is appointed by the Miami-Dade League of Cities.
The Miami-Dade ethics commission investigates complaints and renders opinions related to the Code of Ethics, lobbyist registration and reporting, the Citizen's Bill of Rights, and campaign practices. It also runs a "Community Ethics Education and Outreach Program" which conducts training workshops for city employees, elected officials, nonprofit organizations and businesses.
This body operates very much like the governing body of a city or county. It publishes minutes of its proceedings on the Internet and maintains a digest of its opinions.
The important features of this model are that members are appointed in a manner which makes it difficult for political officials subject to its jurisdiction to unduly influence its proceedings, and it employs independent counsel. Deerfield Beach is not, of course, a major urban county, but the "Deerfield Beach Commission on Ethics and Public Trust" should be as sophisticated in its design and operations if it is to be fully effective.
If ethics reform is to be successful in a community, it must be viewed as a comprehensive program with several components. One component is the body of rules, guidelines and procedures which are designed to maintain public trust in the city government. Ideally, the code of ethics will be grounded upon a wide consensus in the community favoring honest and ethical government. A second component is an authority -- an ethics commission made as independent as possible -- to consider and rule upon ethical issues. Again, ideally, the ethics commission will be comprised of "experts," that is, people who uniquely and substantially qualified to serve in this role, and people who have little or no personal interests in local politics. The commission should also be able to employ special consultants, investigators and masters, and should be advised by its own counsel. Third, a training program should be devised and seriously administered. Fourth, the ethics commission should have adequate administrative support, and the support element should be independent of the city administration. Finally, the support element, or another element, could be given some summary authority to deal with minor infractions. Further discussion of this is warranted.
Let us assume for the purposes of discussion, that the "support element" of the ethics commission is called the city ethics officer and that the procedures for initiating and proceeding with a complaint or matter for consideration by the tribunal are laid out in a "practice manual" having the force and effect of law.
An ethics complaint might proceed in this way: a complaint is filed by a citizen or city employee by a letter of complaint. No exacting rules should be imposed on complainants as to the form of the complaint, but a requirement in writing is fair to the subject of the complaint or "respondent." The commission's practice manual would set forth rules as to whether, and under what circumstances, the identity of the complainant might be withheld. The complaint would be docketed, in order to avoid the perception that the complaint was simply swept under the rug, and the respondent would be notified in most cases.
Because it is not the intention to create a massive and complicated bureaucracy, the development of the ethics tribunal should consider the question of whether, and again under what circumstances, the city ethics officer should be given summary authority to deal with grounded ethics complaints. By a summary proceeding, we mean a disposition of a case without referral to the more formal proceedings of the ethics commission en banc. This might be appropriate where the respondent admits to the facts of the complaint. Obviously, a summary proceeding must consider the due process rights of the respondent, the rights also of the complainant, and should be subject to review.
It should be noted that the final disposition of any case in which unethical conduct is determined, whether by the ethics commission or in a summary proceeding, would be the same as for any city code violation, unless a guilty respondent agrees to a particular civil settlement.
10 - A Plan for Reform
In an ideal world, a plan for comprehensive ethics reform would be thoughtful, civil, deliberate and methodical. It would move from discussion to agreement, from referendum to legislation, from education to enforcement. Such a strategy would require commitment of the political class to public ethics. Agreement to systematic reform implies that a cadré of honest officials is in a controlling position already.
Public ethics reform has three basic components: the law, civic values that shape community standards of right conduct of public officials, and personal integrity.
The Law -- Public Ethics
Codes of ethics are generally of two forms: a standard legislative type and the aspirational type. The state code of ethics is of the first form, as are most local and model codes. These are essentially conflict of interest codes, because they deal principally with how to prevent and deal with conflicts between the personal interests of officials and the so-called public interest.
Aspirational codes stress values over rules, and are sometimes called codes of ethics and values. These codes operate mostly on the honor system, as, quite honestly, do the standard form codes. Anyone who has been involved in local politics knows that the rules can easily be evaded by crooked officials. One could argue that aspirational codes are mostly "feel-good" because, if officials are honest enough to follow them in the first place, then they really don't need a document that tells them to be good. On the other hand, aspirational codes make a clear statement of the accepted civic values of the city, or at least of the most influential elements of the city. Ideally, that would be values like honesty and professionalism.
Other laws do not deal directly with ethics, but raise the expectations of honest government at all levels. This would include open government laws, public records statutes (in Florida, the Public Records Act, Fl. Stat. ch. 119) and laws relating to elections and campaigns. In addition, there are criminal statutes that deal directly and punitively with certain types of overt public corruption, including embezzlement, bribery, and mail fraud.
A comprehensive program of ethics reform for the city might involve a mixture of standard and aspirational elements. It would be a wasted effort if "reform" at the city level only mirrored existing laws at the state level. An essential element is a tribunal for the consideration and determination of ethical issues and a continuing education program for public officials and workers. In Deerfield Beach, there is no code of ethics. There is, however, a starting point -- a little known and little used conflict of interest provision in the city charter.
The previous chapters proposed new charter provisions to establish basic ethical principles and stress open and participatory government to create a more honest civic environment. Specific legislative measures could include: more complete disclosure rules to implement the existing charter conflict of interest provision, lobbyist registration, campaign reform, and the adoption of an aspirational-form code of ethics and values similar to the one enacted in Santa Clara, California. The mere act of adopting such a code would move city government in Deerfield Beach from the 19th to the 21st century in one vote. It would provide an ethical framework which does not now exist. Except for whatever personal integrity that officials and civil servants bring to the job themselves now -- granted, that's the ultimate key to it -- city government operates in a moral vacuum. It's not clear what the civic values of this city are.
Civic Values -- Right Conduct
There have been two recent cases concerning elected officials in Deerfield Beach which raised ethical issues that probably would not have found resolution in a standard code of ethics, as neither case involved conflicts of interest in a conventional sense. This is why the term "right conduct" is useful to imply that there is a broader meaning of proper official conduct based on the civic values of the community, as well as the law.
The first case involved an "insurance" claim against the city by Commissioner Marty Popelsky which was unlawfully approved, and the second involved possible misuse of city-provided cell phones by a city commissioner. The first case was resolved when Popelsky returned the money to the city after being advised by the city manager and city attorney that the payment was not proper, but not until he had made public statements suggesting that the city just may have to "eat it." The second case is the result of charges brought by a resident and has not been resolved. Like many "ethics" cases, both of these cases involved a mix of ethical and legal questions, as well as a politically inept response that fueled media attention and public anger. These cases demonstrate the need for an independent ethics tribunal to hear the evidence and make determinations of right conduct within a framework of established principles, without rancor, media opinion, public spin and political maneuvering influencing the outcome. As it stands now there is no institutional process to determine whether the conduct of the elected officials in these cases or of the city employee involved in the first case was unethical.
But what are civic values? Are there civic values? Who decides? Do "political realities" cancel out civic values in practice?
When Santa Clara started to develop its Code of Ethics and Values, it started with a "visioning" process, to borrow a term, to hear what citizens thought the values were that should be explained in the code. From the scores of submissions, these eight "core values" were selected as the most comprehensive and expressive of the expectations of the community as to the right conduct of public officials:
- Service Oriented
- Fiscally Responsible
Notice that "ethical" is only one of the eight core values. The sense of the community clearly was that the right conduct of public officials went far beyond simply avoiding unethical or unlawful conflicts of interest.
But are these the civic values of Deerfield Beach? There are certainly places controlled by corrupt politicians with which the community, or at least the voters, are satisfied, and continue to return to office. Obviously, the civic values of those cities are quite different from those of Silicon Valley.
The Santa Clara Code of Ethics and Values was developed in partnership with the Markkula Center for Applied Ethics of Santa Clara University and was adopted on April 4th, 2000. It is applicable to city council members, appointed officials, city employees and volunteers. All of these persons are termed "representatives of the city." The code explains what each value "looks like" in practice and from the perspective of the official or city employee who is the "representative."
To give as an example one core value, ethical, this means that the "representative" -
- is "trustworthy, acting with the utmost integrity and moral courage."
- is "truthful, do what I say I will do, and am dependable."
- makes "impartial decisions, free of bribes, unlawful gifts, narrow political interests, and financial and other personal interests that impair my independence of judgment or action."
- is "fair, distributing benefits and burdens according to consistent and equitable criteria."
- extends "equal opportunities and due process to all parties in matters under consideration. If I engage in unilateral meetings and discussions, I do so without making voting decisions."
- shows "respect for persons, confidences, and information designated as 'confidential.' "
- uses "my title(s) only when conducting official City business, for information purposes, or as an indication of background and expertise, carefully considering whether I am exceeding or appearing to exceed my authority."
But now comes the daunting question: Does the way that government and politics actually work "in practice" nullify these civic values as they should work "in practice"? If you've never been, you might want to attend a city commission meeting in Deerfield Beach -- or better still a number of meetings over the course of time -- or watch them on TV or the city website, and see how well you think our elected officials conduct themselves in comparison with the above stated principles. If your standards are as high as those of Santa Clara, you may be disappointed.
Politics is a game with players who represent different and sometimes competing interests. It can be down and dirty, and, at times, downright disgraceful, as people vie for power and try to win the day. Nobody is involved in politics to lose their cause. Laws and codes and high sounding pronouncements aside, it all comes back to the personal integrity of the public officials and employees who run the city as our "representatives" and to the other participants in the process. This is why an aspirational code could be a valuable tool, because it proclaims how citizens expect public officials to conduct themselves in the discharge of their duties within a framework of right and wrong.
Personal Integrity - Participants
Personal integrity is at the center of any system of ethics. It is true of personal ethics, business ethics and media ethics. It is true of the public ethics of elected officials, civil servants, and other participants in the civic affairs of the city or state.
We are proposing the term "participants" to include within the discussion a wider group of people who are not necessarily public officials or civil servants. Some are members of the political class, some are not. It is submitted that the conduct of participants in this wider sense can be as destructive of good government as the unethical or unlawful conduct of the narrower class of public officials -- or even more so.
Who are they? They are people who occupy positions in life and the city that give them extraordinary influence in city business; they make up the power structure which includes the media and various "insiders." They could be the Chamber, civic organizations, churches, PACs -- almost anyone outspoken enough potentially to influence public policy. If and how public ethics applies to this wider class of people is a complicated issue, but we contend that some elements do apply in principle.
Honesty cannot be legislated, and no dishonest person will be purified by a formalized code or any other process which tries to impose the standards of others on him. Integrity, even in public life, is a personal testimony which may go something like this:
- I will tell the truth,
- I will try to keep my word,
- I will do the best I can for the community,
- I will uphold the trust they have placed in me.
Ethics legislation is like the knife in surgery. The knife cuts away the tumor, but does not cure the cancer.
The Fourth Estate, or regular media, has a unique ethics to which its representatives may or may not adhere. This ethics stresses truth and accuracy in reporting. What are sometimes referred to as the Fifth Estate work to some extent outside traditional value systems and are thus prone to inaccurate reporting and libel under the cover of anonymity. In the olden days they might be referred to as the underground press, but now the term is more likely to refer to "citizen journalism" on the Internet.
The media, of course, are protected by the First Amendment. So are lobbyists and people who speak to the commission. If the media and these others are ethical, as is the case of public officials and public employees, it is ultimately a matter of personal integrity.
Nonetheless, citizens have a right to know who is speaking to officials outside the public forum. Thus cities may require lobbyists to register and disclose certain information relevant to their business with the city. Lobbyist registration and required disclosure of relationships between applicants and city officials should be part of the reform scheme.
Likewise, citizens have a right to know what would otherwise be private information, that is, the financial interests and other relationships of public officials and employees that could compromise their decisions in the exercise of their official functions. Everyone has some personal interests that may run at cross purposes to the public interest. In order to maintain the public trust vested in officials, these interests should be revealed truthfully and made a part of the public record. It is simple logic that if everyone knows about a conflict of interest, there won't be a conflict of interest.
PART III - OTHER PROPOSALS
11 - Disclosure Laws
The largest area of concern of public ethics laws are the cases which arise when the judgments, decisions and actions of public officials are potentially compromised by their personal (usually financial) interests in a particular matter. Accordingly, the state code of ethics contains numerous provisions intended to mitigate or prevent conflicts of interest. For example, it prohibits the solicitation or receiving of gifts or unauthorized compensation, or the use of one's official position for private gain. There are additional statutes dealing with employment which conflicts with official duties, government contracts, "revolving door" employment of former officials, lobbying, and nepotism.
Another class of laws deals with official conduct, but not directly with ethics. This includes open government, or Sunshine, laws; the Public Records Act; election campaign regulations; and various disclosure requirements. By keeping government in the "sunshine" and allowing public access to most public records, and by making campaign contributions a matter of public record, the theory is that governments are less prone to corruption or unethical activities. Many local officials, including some Deerfield Beach officials and candidates, are required by state law to make public limited financial disclosures (known as Form 1). Some officials around the state, but none in Deerfield Beach, are required to make recurring "full and public disclosure" of their financial interests (Form 6).
This is something else that seems almost forgotten: The Deerfield Beach city charter requires public disclosure of financial interests in certain cases. More about this later.
The core provision of state ethics law is the "voting conflicts" statute:
"No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than [a public] agency...; or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer."
In case of a conflict of interest, "Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter... and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record...."
A public officer is "any person elected or appointed to hold office in any agency, including any person serving on an advisory body."
With respect to appointed officials:
"No appointed public officer shall participate in any matter which would inure to the officer's special private gain or loss; which the officer knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained; or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer, without first disclosing the nature of his or her interest in the matter."
To participate in any matter "means any attempt to influence the decision by oral or written communication, whether made by the officer or at the officer's direction."
The key term in the voting conflicts law is "special private gain or loss." In order for a conflict of interest to occur, it must "inure to his or her [i.e., the official's] special private gain or loss." Thus, to cite a fairly obvious example: if the vote benefits Mayor Capellini's cousin's wife's friend, it does not, on its face, "inure to his or her special private gain or loss," and is not a conflict or interest for the purpose of the law. On the other hand, depending on the totality of the facts, such a situation can create the appearance of an impropriety.
This brings us, thus, to the matter of practical politics, how we might better approach conflicts of interest at the local level, within the reality that public officials in office may resist tighter rules. We begin with consideration of existing "resources," which would include § 8.02 of the Deerfield Beach city charter. This provides in part:
"Any city officer, employee, board member or members of their immediate families who have a financial interest, direct or indirect in any corporation, partnership or other organization in any contract with the city, in zoning and land classification, or in the sale of any land, material supplies or services to the city or to a contractor supplying the city, shall make known that interest at the time the matter is under consideration; and, if substantial, shall refrain from voting upon or otherwise participating in such capacity as a city officer, employee or board member in the making of such sale or in the making or performance of such contract."
The test in § 8.02 is financial interest, any financial interest for purposes of disclosure, and a substantial financial interest for purposes of recusal or withdrawal from the matter, rather than the narrower concept, "special private gain or loss."
As a conflict of interest law, § 8.02 is not half-bad, but there are a couple of problems. First, there is no process for interpreting the law. Second, there is no enforcement mechanism. What do you do with erring officials -- ship them off to Guantanamo and waterboard them till they confess their sins and promise to be good?
A case -- the only case we know of -- arising under § 8.02 was that of ex-Commissioner Peggy Noland, who was participating in the firefighters' pension negotiations with the city. Noland's husband was at the time a firefighter and union executive. Upon receiving a complaint from a citizen, independent counsel was appointed to examine the case. While no formal determination was made public, Noland did withdraw from the negotiations, presumably on the advice of the independent counsel. If this is what happened, it implies that Mr. Goren found that Noland had a "substantial financial interest" in the matter.
In an ideal state, public ethics would be based on a jurisprudence developed from case-studies by jurisconsults and scholars rather than rule-books that can be easily evaded. Such a process, however, would require a level of sophistication far beyond a city or town that can't even agree on simple ethics reform. This leads to a dilemma: the same people who are to be subject to the rules are the people who are going to decide what the rules are -- or that there will be no rules. In fact, over the years, city officials in Deerfield Beach have shown little interest in a code of ethics or developing a system of laws pertaining to their conduct as public officials.
Still, Deerfield Beach does have Article VIII and § 8.02. It's not a perfect law, but the city commission can't repeal it. They can, and have, ignored it, as was the case of Mrs. Noland and the pension negotiations until a citizen complained. They could also implement it, which they have not. What § 8.02 requires is disclosure, if an official has an interest, or withdrawal, if he or she has a substantial interest. All we need are the wheres, whens and hows.
Remember that state law provides for two major categories of disclosure -- limited, and full and public disclosure. The commission could by ordinance require city officials to file more complete disclosures similar to Form 6, and other disclosures to comply with § 8.02 of the charter. It could also require that applicants or potential contractors with the city reveal any interest that any city official or employee has in the applicant's business.
These are measures -- not too complex -- that could make the conflict of interest laws already in place more effective and enforceable, without reinventing the wheel.
12 - Lobbyist Registration
Citizens have a right to be heard by city officials. So you and I, regardless of our interests, should be able to contact our representatives and administrators, and state our case, whatever it may be. We might choose to speak in public, such as before the city commission, or do so in a private meeting out of the hearing of other citizens who might have an interest, also, in the matter.
In general, citizens should have this right without having to prove their interests or motives. However, against this right, other people may have a legitimate interest in knowing to whom city officials are talking about official matters. This is a place where public records laws come into play, as well as rules, if they exist, requiring the "registration" of lobbyists.
Lobbyist registration is simple enough in concept, but crafting the necessary and proper rules that do not trample upon the rights of citizens involves finer distinctions. What is a "lobbyist" as distinguished from an activist trying to influence city officials, for example? What is it, exactly, that we want "lobbyists" to do? In other words, what do we mean by "registration"? What ought we require them to disclose as part of the registration process?
Fort Lauderdale's registration ordinance has been in effect for a number of years and could serve as a model for other cities. Basically the code (City Code § 2-260 et seq.) requires the registration of persons who are paid to lobby. "Lobbying means communicating directly or indirectly, either in person, by telephone, letter, electronic means or other method, with the city commission, city board or committee or any member thereof or the city manager or city staff for the purpose of influencing legislation or other official action."
However, not every communication with public officials is lobbying for the purpose of the registration ordinance: a request for public information or submission of an application for a permit would not, for example, fall within the purview of these requirements. Further, not every lobbyist is required to register under the Fort Lauderdale rules. A lobbyist for a non-profit is not required to register, nor is the representative of a bargaining unit for city employees.
Lobbyists are required to provide certain information, including their connection with any city official. All of this information is public information and, in the case of Fort Lauderdale, is published on the city web site.
13 - Campaign Reform
Lobbyist registration and laws limiting election campaign contributions do not necessarily lead to a more ethical city. But they could help restore the public trust in local government.
It really does not matter whether money, that is, the expenditures of a candidate, is the determinative factor in the outcome of a typical election. Sometimes it seems as if it is. What is important is that people give money to candidates in order to gain influence; this is why the contribution reports are interesting, to see who may get an advantage when the candidate is elected. If a candidate receives a large percentage of his campaign finances from developers, it is presumed that he will give consideration to developer interests in his votes over what is perceived to be the better public interest.
Further, if one pours over the reports, he will see that developers and others who have interests in development are among the largest campaign donors. Development, in some respects, is the business of cities in Florida.
The state law on campaign contributions (Fla. Stat. § 106.08) is fairly simple in its bare outline: Contributions are limited to $500 per candidate per election. Of course, this can be evaded easily by funneling contributions through several companies connected to a single source of money. Developers in particular are often represented by a number of entities, whose exact relationship is difficult to prove.
There may be no fail-safe way to prevent such bundling of campaign contributions to get around the intent of the law, but this is what Sarasota put in their city charter: "No candidate for the office of City Commissioner shall accept a campaign contribution from any contributor, other than a natural person."
In 2007, the City of Sarasota adopted a campaign reform package that mirrored similar rules established earlier at the county level which had weathered judicial challenges to their constitutionality. Two measures were approved by voters by a substantial margin. The first limited campaign contributions to $200, and the second was the charter amendment cited above. If you think that $200 is a low figure, consider the fact (as reported in a local editorial supporting passage of the amendments) that Fort Collins, Colorado, a city of 125,000, limits campaign contributions to city council candidates to $75.
Sarasota's action relied upon the fact that other jurisdictions in Florida, including Sarasota County, had adopted similar limitations and on language in the 1980 5th Circuit Let's Help Florida v. McCrary decision that affirmed a city's legitimate interest in regulating election practices because "actual corruption resulting from a candidate's dependence upon large individual contributors would undermine the integrity of representative democracy and even the appearance of corruption that arises from public awareness of the possibilities for abuse would erode confidence in the democratic system."
But, as the Louisiana Supreme Court stated in a 1996 case involving similar issues, "Strict scrutiny applies to any regulation of First Amendment rights." Violation of First Amendment rights is the principal argument against too-deep limitation of campaign contributions. Also both the Louisiana decision and the McCrary court in fact held against laws limiting campaign contributions.
Nonetheless, Harvard Law School professor Christine Desan pointed out in a Boston Globe op-ed (8/18/06) that communities all over America are adopting caps on campaign contributions ranging from $100 to $250 in local elections.
She wrote: "Citizens can see the effect of money on politics most clearly at the local level -- in decisions on development, zoning, education, and policing. The myriad local campaign finance measures around the country show that these citizens want to keep their elections fair and competitive. Americans can still act in their cities and towns; to be safe, they should avoid characteristics of Vermont's law that the court disliked, such as the state's failure to adjust its caps for inflation."
The Vermont case to which she was referring was a U.S. Supreme Court decision in 2006, Randall v. Sorell, which struck down a law limiting campaign contributions. The very brief explanation of this decision is that the court found the limitations specified in the Vermont law to be disproportionate to the public purposes that the law was intended to advance. Ms. Desan points out that this is the first Supreme Court case to strike down contribution limits. It may be further suggested that the Vermont decision involved issues far more complex than, for example, the Sarasota charter provisions.
Deerfield Beach has nothing pertaining to campaign contributions; thus candidates can receive up to $500 per contributor and, doubtless, some contributions are bundled, especially to the mayoral candidates. If limitations modeled on the Sarasota laws were enacted, it would be a new ball game in Deerfield Beach at election time. Candidates can say that contributions from developers don't influence their decisions all they want, but most common-sense people know better.
A - Proposed Revisions of Article VIII of the City Charter
ARTICLE VIII. OFFICIAL CONDUCT
Section 8.01. Standards of
ethics conduct. [Current provision struck and replaced with new provisions which follow.]
All elected officials and employees of the city shall be subject to the standards of conduct for public officers and employees set by general law and this Charter. In addition, the commission may, by ordinance, establish a code of ethics for officials and employees of the city.
(1) The commission shall, by ordinance, establish a code of ethics for elected officials and employees of the city and other rules to implement the standards of right conduct set forth in this article.
(a) To ensure that every citizen can have complete confidence in the integrity of the
city government, all elected officials and employees shall respect and adhere to the principles of ethical conduct set forth in this section, as well as the
standards contained in this Charter and in the city code of ethics.
(b) Public service is a public trust, requiring elected officials and employees to place loyalty to the Constitution, the laws and ethical principles above private gain.
(i) They shall not hold financial interests that conflict with
the conscientious performance of duty.
(ii) They shall not engage in financial transactions using
nonpublic government information or allow the improper use of such
information to further any private interest.
(iii) They shall not, except as permitted by law, solicit or accept any gift or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by the city government, or whose
interests may be substantially affected by the performance or
nonperformance of the official's or employee's duties.
(iv) They shall put forth honest effort in the performance of
(v) They shall not knowingly make unauthorized commitments or
promises of any kind purporting to bind the city government.
(vi) They shall apply city funds only to the objects for which the funds were authorized, except as otherwise provided by law.
(vii) They shall not use public office for private gain.
(viii) They shall act impartially and not give preferential
treatment to any private organization or individual.
(ix) They shall protect and conserve city property and shall
not use it for other than authorized activities.
(x) They shall not engage in outside employment or activities,
including seeking or negotiating for employment, that conflict with
official government duties and responsibilities.
(xi) They shall disclose waste, fraud, abuse, and corruption to
(xii) They shall satisfy in good faith their obligations as
citizens, including all just financial obligations, especially those
(such as Federal, State, or local taxes) that are imposed by law.
(xiii) They shall adhere to all laws and regulations that provide
equal opportunity for all Americans regardless of race, color, religion,
sex, national origin, age, or disability.
(2) The commission may promulgate separate rules of conduct and procedure for elected officials and employees.
Section 8.02. Personal financial interest. [Format changes, with additional redaction.]
Any city officer, employee, board member or members of their immediate families who have a financial interest, direct or indirect in any corporation, partnership or other organization in any contract with the city, in zoning and land classification, or in the sale of any land, material supplies or services to the city or to a contractor supplying the city, shall make known that interest at the time the matter is under consideration; and, if substantial, shall refrain from voting upon or otherwise participating in such capacity as a city officer, employee or board member in the making of such sale or in the making or performance of such contract. Nor shall any city officer, employee or board member, or members of their immediate families subsequently benefit from any contract with the city, or matters of zoning and land classification, or the sale of any land, material, supplies or services to the city or to a contractor supplying the city wherein his financial interest failed to be disclosed under penalty of forfeiture of office or position and such additional penalties as may be prescribed by law. Any city officer, employee, or board member who willfully conceals such a substantial financial interest or willfully violates the requirements of this section, shall be guilty of malfeasance in office or position and shall forfeit such office or position. Violation of this section with the knowledge, express or implied, of the person, corporation, partnership or other organization contracting with or making a sale to the city may render the contract or sale voidable by the city manager with the concurrence of the city commission.
(1) Any elected official, employee, board member or other person closely related to an official, employee or board member as further defined by the city code of ethics, having a substantial financial interest, direct or indirect, in any contract with the city or in any matter which will come before the commission or board for approval, shall disclose that interest at the time the matter is under consideration and refrain from voting upon or otherwise participating in his or her official capacity in the making or performance of such contract or in the consideration of the matter.
(2) If an elected official or board member is required to vote by law, the official or board member shall disclose his interest in advance of the vote.
(3) Any elected official, employee, or board member who conceals or fails to disclose a substantial financial interest with the intent to violate the requirements of this section shall be guilty of malfeasance.
Penalties Appearance of impropriety.
Violations of ordinances or this charter shall be punishable in accordance with the uniform fines and penalties set by general law.
(1) Elected officials, employees and board members of the city shall endeavor to avoid any actions creating the appearance that they are violating the law or ethical standards set forth in this Charter or in the city code of ethics.
(2) The appearance of impropriety is at issue whenever an elected official, employee or board member of the city takes action, whether or not specifically prohibited by law, which might result in or create the appearance of:
(a) Using public office for private gain.
(b) Giving preferential treatment to any person or entity.
(c) Impeding efficiency or economy of the city government.
(d) Losing complete independence or impartiality.
(e) Making an official decision outside official channels.
(f) Affecting adversely the confidence of the public in the integrity of the city government.
Section 8.04. Board members.
If the commission finds that a member of a city board or committee appointed by the commission has violated any provision of this article or any law to which he or she is subject, the commission may immediately remove the member from the board or committee.
Section 8.05. Rules of procedure.
The city code of ethics shall establish procedures for the receipt of complaints of suspected violations of the city code of ethics by persons subject thereto, providing that respondents receive timely notice and a reasonable opportunity to answer the charges, and for a process for the determination of the charges that is fair to both the accused and the accuser.
Section 8.06. Citizen Rights.
(1) Truth in Government. Each person has the right to truthful and accurate
information from elected officials and city employees. Commissioners and
city employees shall not knowingly omit any information or significant facts
when disseminating public information.
(2) Access to Public Records and Information. Each person has a right to access city records. All audits, reports, minutes, documents and other city public records shall be open for public inspection at reasonable times and places.
(3) Business with Outside Persons. The commission shall require that the city manager or any city employee acting for or at the direction of the city manager maintain a record of all meetings or other communications he has with any person who is not a public official or employee of the city government or a state or federal official concerning the business of the city, and provide that such records shall be made a part of the public record.
(4) Lobbyists. The commission shall provide for and require the registration of lobbyists. Notice of such registration and information provided therein shall be made a part of the public record and shall be placed on the city's website.
(5) Right to be Heard. Any person has the right to appear before the
commission or city board or committee for the presentation, adjustment or
determination of an issue, matter or request within the city’s jurisdiction.
Matters shall be scheduled for the convenience of the public, and specific portions
of each agenda shall provide for designated times so that the public may know
when a matter may be heard. The commission may establish reasonable procedures
relating to public hearings, including limitations on the time members of the
public may speak on an issue.
(6) Right to Notice. The city shall display on the city website notice of all city meetings for which public notice is required.
(7) Proper Use of Public Property. The city shall prevent the use of public
property or its taxing power for the benefit of private individuals, partnerships or
corporations, in violation of the restrictions imposed by Article VII, Section 10, of
the Florida Constitution, or by the laws of the State of Florida.
Section 8.07. Penalties.
Violations of this article shall be punishable as provided in the city code of ethics or by general law.