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Ethics Board Counsel John Reid overhauls Tallahassee ethics code

"Ethics Board aims to put teeth in code, seeks greater oversight of Tallahassee City Hall"

by Jeff Burlew | Tallahassee Democrat

As published by Tallahassee Democrat (03/23/2019)

The city of Tallahassee’s Independent Ethics Board is finalizing proposals that could expand its oversight of City Hall and strengthen an ethics code that has long been seen as weak and toothless.

The Ethics Board, created by voter referendum in 2014, currently has jurisdiction over only nine people: the mayor, the other four city commissioners, the city manager, attorney, treasurer-clerk and auditor. But proposed changes would extend its jurisdiction to cover all employees who work in procurement or are required by state law to file financial disclosures. 

The proposals include giving the Ethics Board the power to issue subpoenas and take sworn testimony, a ban on all gifts no matter their value and higher fines for lobbyists who try to influence city officials without registering and disclosing their clients.

The Ethics Board will hold a workshop on the initiatives April 2, with a goal of finalizing a draft ordinance that would go on to city commissioners for final approval, perhaps later this spring.

“This will probably be the biggest single request that we will make to the City Commission potentially in the lifetime of this board,” said Richard Herring, chairman of the Ethics Board, during a meeting last week.

Shaken by scandal

The measures, months in the making, follow two years of scandal at City Hall, including the indictment of City Commissioner Scott Maddox on federal public corruption charges and the downfall of former City Manager Rick Fernandez over his acceptance of gifts from lobbyists. Accusations of ethical lapses also led to recent probable cause findings in separate state cases involving former Mayor Andrew Gillum and his former chief of staff Dustin Daniels, who are contesting the allegations.

Members of the Ethics Board hope the ordinance changes will improve the city’s ethical climate and image. But members of Citizens for Ethics Reform, the group that backed the 2014 charter amendment, and others say some of the proposals don’t go far enough or would take the board in the wrong direction.

Under the ordinance in place now, fines for lobbyists who fail to register are little higher than a speeding ticket, maxing out at $500. And while the draft ordinance would increase fines up to $5,000, some observers say that isn't high enough. Another proposal would move lobbyist oversight from the board to the Treasurer-Clerk’s Office.

“Lobbyists are the primary source of many of the ethical issues that arise with government,” said Ben Poitevent, a former prosecutor for the Florida Commission on Ethics. “And to take that registration oversight away from this board to me is not very wise. It is an integral part of what this board does.”

Secret lobbying has been an ongoing concern at City Hall.

In 2015, when the city was ironing out regulations for Uber and taxi cabs, several people hired as company consultants failed to register as lobbyists, including Paige Carter-Smith, who was indicted along with Maddox in December. Whispers of unregistered lobbyists and lax enforcement persist to this day.

Ben Wilcox, a member of Citizens for Ethics Reform, suggested city commissioners and other officials keep logs of their contacts, their visitors at the office and perhaps even phone calls to monitor lobbying behind closed doors.

“The charter amendment gives you oversight over lobbying,” Wilcox said. “And I think you ought to at least leave open the option of someone to file a complaint with you that someone is lobbying and has not registered.”

Members of the Ethics Board signaled they are open to maintaining oversight of lobbying. Former Congresswoman Gwen Graham, one of the Ethics Board’s newest members, asked during Tuesday’s meeting whether there are any requirements on officials to make sure lobbyists they meet with are properly registered. Herring said requirements are on lobbyists only, not city officials.

“When an individual would come through my office in Washington, D.C., they would identify themselves in advance as to who they were there for and on what side of the issue they were there to talk to me about,” Graham said.

Will campaign pledges become law?

The Ethics Board’s proposals also include expanding jurisdiction for allegations involving misuse of office to everyone at City Hall, from commissioners to employees. The measure bars officials from using their position to get a special benefit for themselves or others.

But debate over wording of the provision continues. In 2017, the Ethics Board recommended city commissioners lower the burden of proof in misuse of position cases, but commissioners passed. 

The current ethics ordinance requires proof that a public official acted with corrupt intent, a bar Citizens for Ethics Reform says is too high. The group is asking for a lower standard, requiring proof that an official acted “knowingly and intentionally.”

Peter Butzin, a member of the citizens group, asked whether the Ethics Board could have found a violation in the Fernandez matter with the “corrupt” standard. In that case, text messages showed Fernandez asked for and got free Florida State skybox tickets for football games.

“We knew that he was knowingly and intentionally violating the law because the Ethics Commission subpoenaed his (messages),” Butzin said. “However, proving corrupt intent is much more difficult. And (the Fernandez case) provides only one relatively recent example of the importance of only a couple of words.”

The Ethics Board is no longer asking commissioners to change the “corrupt” standard. Instead, the ordinance would clarify the definition of acting corruptly to mean acts done with “wrongful intent,” a term out of recent case law.

John Reid, interim attorney for the Ethics Board who wrote the draft ordinance along with former Circuit Judge Josefina Tamayo, said he consulted with the state’s chief ethics prosecutor, who said the “corrupt” standard was not necessarily a higher burden. He said verbiage suggested by Citizens for Ethics Reform may make it even tougher to prove misuse of position.

“We actually may be shooting ourselves in the foot and going in exactly the wrong direction,” by using the group’s language, Reid said.

The Ethics Board has hired both Reid and Philip Claypool, former general counsel and executive director of the Florida Commission on Ethics, to consult on the ordinance and take part in the workshop. Ethics Board members will have a range of options before them, including suggestions from the citizen advocates, as they finalize the ordinance.

The board also is proposing a number of policy, not ordinance, changes, including measures addressing nepotism and oversight of outsourcing. Herring, the board chair, and Graham said it’s important to get the proposals to commissioners soon. Ethics, Herring noted, was a hot issue during the 2018 election.

“We fear that as they get into their role of governing, ethics may slip as the issue at the top of the list,” he said. “And we want to make sure we get our recommendations to them while their promises to the public are still fresh in their minds.”

Ethics Board workshop

The city's Independent Ethics Board will hold a workshop at noon on Tuesday, April 2, at City Hall to discuss recommended ordinance changes to the City Commission.

Read the original HERE.

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