A Debate Over Ethics

A city led workshop scheduled for October 28th at city hall will shape the future of Tallahassee’s Independent Ethics Board (IEB). At the workshop, the city commission will consider crafting an ordinance based on recommendations submitted by the IEB.

The IEB recommendations will have to be approved by a majority of city commissioners.

Ahead of the workshop, The City Attorney’s Office (CAO) completed a review and analysis of the proposed recommendations of the IEB. The review included a comparison of the recommendations with other Florida local government jurisdictions and best practices.

Listed below are the IEB proposed changes and the CAO’s recommendations for select issues. Also include below are additional recommendations forwarded by the CAO. 

Who can be investigated for Misuse of Position?

The city’s current ordinance holds that the “misuse of position” language is applicable only to appointed and elected officials. The IEB has proposed expanding the reach of the provision to all city employees. 

The CAO, recognizing that all city employees are already subject to the state law prohibiting “misuse of position”, recommends that the IEB reach be limited to “covered individuals”, which includes elected and appointed officials.

Corrupt Standard or Should Have Known Standard

The IEB also proposes lowering the bar for prosecutions of the “misuse of office” provision to a “knew or should have known” standard, as opposed to a “corruptly” standard. 

The CAO recommends retaining the “corruptly” standard, which has been defined by the First District Court of Appeals (controlling for the City of Tallahassee) to mean “with wrongful intent,” and further defined by case law to mean that an individual acted “with reasonable notice that [his or] her conduct was inconsistent with the proper performance of [his  or] her public duties . . .” 

The CAO argues that retaining the “corruptly” standard will allow the IEB to rely on precedent established by the case law and opinions at the state level to conduct its own prosecutions of this provision.

What language do other jurisdictions consider for “misuse of office”?

The City of of Jacksonville uses an “intentional” standard that is applicable to all officers and employees.

Palm Beach County prohibits the “misuse of public office” by any official or employee who “knows or should know with the exercise of reasonable care” that doing so will result in a special benefit, but also prohibits the “corrupt misuse of official position” by an official or employee. 

And finally, Leon County’s proposed ordinance removes “corruptly” and uses a “knowingly and intentionally” standard. Leon County’s proposed amendments to its ethics code are scheduled for adoption on December 10, 2019.

Gifts

The IEB has proposed prohibiting the direct or indirect solicitation or acceptance of any gift of any value by any covered individual.  The proposed language acknowledges that the prohibition does not apply to gifts that are not for the personal benefit of a covered individual or his or her relative. 

The CAO recommends a prohibition against solicting a gift of any value, but retains the $100 threshold for accepting a gift as a reasonable way to avoid unintentional violations. 

Who is subject to penalties?

The IEB is seeking authority to issue “remedial orders,” defined as nonbinding declarations that include findings of fact and conclusions of law, which would address the actions of city employees.

The CAO would counsel against giving the IEB this authority, as it appears to usurp the charter-based authority of the appointed officials over their employees.

Restitution and Fines

The CAO views the IEB’s proposal that restitution be included as a potential part of a penalty for violations as reasonable for inclusion. The CAO notes it would be relatively easy to determine value of property that was misused. 

However, the CAO does not recommend that the IEB be given the authority to additionally order a fine equal to the “cumulative value of the pecuniary benefits resulting from the violations,” (i.e. financial benefits obtained by the violator) as this seems speculative and, therefore, difficult to measure and enforce.

While most local jurisdictions authorize fines up to $500 per violation, the CAO agrees with the IEB’s proposal of a $1,000 maximum per violation fine.

Investigative Costs

The CAO recommends adopting the IEB’s proposed language that would allow for the IEB to require that a complainant pay investigative costs if the IEB finds that the complainant filed an essentially frivolous complaint.

Subpoena Authority

The IEB proposal authorizes the IEB to subpoena any alleged violator, witness or documents for pre-probable cause investigations and for “any hearing” before the IEB.

The CAO recommends that the IEB authority be limited to alleged violators, witnesses and documents over which the IEB has jurisdiction. The CAO also recommends that the IEB be authorized to make application to a court of competent jurisdiction it desires to subpoena individuals or records beyond its jurisdiction.

The CAO notes that the Palm Beach County Ethics Commission has broad subpoena power, but the Jacksonville Ethics Commission must first obtain authorization from a circuit or county judge to issue a subpoena “upon a facial demonstration of the relevancy or testimony to the enforcement of a provision of [the Ethics Code].”

City Attorney’s Other Recommendations

In addition to CAO recommendations related to IEB proposals, the CAO made additional recommendations.

These recommendations include appellate review of IEB final orders, a two-year statute of limitations for violations, and a process for dealing with “hotline” calls.

On the issue of full financial disclosure via Form 6, the CAO recommends waiting until after the 2020 legislative session for any action. The CAO notes that the state Commission on Ethics has proposed a legislative package that includes a requirement for all elected municipal officers to file Form 6.

Currently, city commissioners file Form 1. 

If the Commission decides to adopt a provision requiring vendors to disclose campaign contributions made to candidates, the CAO recommends the process be handled by the Treasurer Clerk’s office.