When the Tallahassee Democrat, Martha Barnett, the former President of the American Bar Association, Harry Anstead, the former Florida Supreme Court Chief Justice, and former Mayor Penny Herman say it is time for an appointed Ethics Officer, you would think it would be a slam dunk. But it was not!

The troubling part of this is that Commissioner and Mayoral candidate Andrew Gillum was able to say no to an appointed Ethics Officer in the face of such support.

The irony is that Commissioner Gillum is the one that got the ball rolling with the EAP, but he could not support their most important recommendation.

And now the question is why?

Gillum, who was elected to the Commission at a young age, has never been one to rock the boat. He went along with the Mayor and then Commissioner Mark Mustian, to support the contract with Honeywell for the smart meter program that has been a huge disappointment.

Gillum voted for the controversial deferred compensation program for elected officials that was ultimately killed after citizens displayed outrage.

Gillum voted for a tax subsidized restaurant in Cascades Park, despite evidence that indicated the project does not make business sense.

So for those who were looking for a leader in the next Mayor, the vote for an appointed Ethics Officer was an opportunity for Gillum to break from the past, sever ties with the old way of doing business.

But it was not to be!

Gillum’s supporters will say that the City Commission adopted a lot of policies recommended by the EAP that will make a huge difference in the future. And that will be Gillum’s political cover. But do not believe it for a minute.

For the last 10-15 years the City Manager and the City Attorney have been providing cover for the questionable deeds of certain members on the City Commission.

Remember deferred compensation – how did that get on the agenda?

Remember when City Attorney Jim English sat in silence when Mayor Marks misled the public about his communication with his law office over the Honeywell vote?

Remember when the City Attorney approved the hiring of a private investigator to follow a City Hall critic?

And now the current City Attorney, Lew Shelley, is in charge of implementing these new ethics rules.

The is the same City Attorney that will not enforce the lobbyists registration ordinance. The same City Attorney that just this year let a City Commissioner repeatedly walk out of meetings instead of asking him to follow the law and declare a conflict. The same City Attorney that sat by and watched a citizen get shut down while trying to talk about a City lawsuit settlement.

Commissioner Andrew Gillum made his choice – along with Mayor John Marks and Commissioner Nancy Miller- and decided to side with the City Manager and the City Attorney and reject what was good for the citizens of Tallahassee.

This vote was a defeat for transparency, but sadly, it was a vote that Andrew Gillum will be shackled with as the next Mayor of Tallahassee and that is unfortunate, because it was his own doing!

The City Commission appointed a citizen Ethics Advisory Panel (EAP) that first convened on November 8, 2012.  The EAP was charged with examining the various City policies, procedures and practices relating to ethics, financial disclosures, and transparency of the government.  The City Commission accepted the final EAP report on July 10, 2013.

On November 20^th, 2013, the City Commission adopted a number of the EAP recommendations. However, consensus could not be reached on a number of issues and Staff was directed to gather more information.

A review of the documents prepared for the upcoming meeting by Tallahassee Reports finds two important changes brought forward from the last meeting.

First, grandfathering of certain items related to elected officials was discussed in the prior workshop.  However the staff recommendation states that “based on consensus of the Commission from that workshop, none of the items addressed includes a grandfathering clause.” This means that once adopted, current elected officials will be required to follow the new rules.

The second change addresses the most controversial recommendation from the Ethics Advisory Panel and that is the creation of an Ethics Officer as an Appointed Official.

The Chairperson of the EAP, Martha Barnett, has stated previously that the appointed Ethics Officer was a crucial part of the recommendation. After much debate, the EAP voted 5-2 for an appointed Ethics Officer.

Back in November, 2013, during the first workshop, the City Staff recommended against the EAP recommendation of an Appointed Ethics Officer and instead offered that the Ethics Officer report to the City Auditor or another existing appointed official.

Since that time, the EAP recommendation has remained the same, however, the City Staff’s recommendation has changed.

Staff now recommends that City Commission “Authorize the City Attorney and City Auditor to jointly hire a full time Ethics Officer for the City of Tallahassee.”

Ms. Barnett has previously stated that she was not in favor of combining ethics responsibilities with the City Attorney’s office and recommended creating an appointed Ethics Officer and advisory board with responsibilities detailed in the city’s Charter.

Sources tell Tallahassee Reports that City Staff has been working with individual City Commissioners trying to come up with a proposal that will be accepted by the Commissioners that oppose the appointed Ethics Officer recommended by the EAP.

During the first workshop, only City Commissioner Gil Ziffer offered support for an appointed Ethics Officer. City Commissioner Gillum voiced support for an Ethics Officer under the authority of the City Auditor and City Commissioner Scott Maddox voiced support for an Ethics Officer under the authority of the City Attorney.

It appears the Staff recommendation is a combination of the two proposals supported by Commissioners Gillum and Maddox.

But then it happened. Without any planning, unexpectedly and spontaneously, a woman named Martha Barnett took charge of the Ethics Advisory Panel (EAP)and its eight other members and demonstrated how transparency, citizen engagement, and respect can make our community better.

The EAP met 17 times and some citizens attended every meeting. Ms. Barnett soon knew them by name. Ms. Barnett allowed “regular” citizens to participate in the deliberations. Yes, you had committee members discussing issues with “regular citizens.” It was special.

Then things got way out of hand. Ms. Barnett and other members actually stated that the public testimony from the previous meeting impacted how they were going to craft their recommendations! Unbelievable – this was democracy at work!

The end result were ground breaking recommendations that included an appointed ethics officer, penalties for elected officials who violate the new rules, and the requirement for City hired lobbyists to disclose their clients. But then, as quickly as it happened…it ended!

On Wednesday, November 20, 2013, the day the EAP recommendations were to be presented to the City Commission, someone named “Staff” rained on the parade. “Staff”, nameless and faceless, asked the City Commissioners to vote against the major recommendations made by the EAP.

Just like that it was all coming back- this was how it normally works. Hear the citizens out and then ignore them – nobody will care! And nobody with any credibility will challenge us!
But this time they were wrong! They were challenged and by people with credibility.

Retired Chief Justice of the Florida Supreme Court, Harry Anstead, a member of the EAP stood up to defend the EAP recommendations. Jay Landers, former Secretary of the Department of Environmental Regulation and Director of the Florida Department of Natural Resources was there to speak on behalf of the EAP.

And then there was Martha Barnett, a former President of the American Bar Association, fighting for what she worked six months to accomplish and truly believed in. It was inspirational!

Now the City Commissioners must decide. At the meeting on Wednesday they could of voted to accept the EAP recommendations. But instead, only Commissioner Gil Ziffer offered support. The others decided to wait until December 11 to make their final decision.

This is a defining moment for the government and the citizens of the City of Tallahassee. Will the insiders that have held the power for so long, give into the will of the people and allow oversight into the decisions that affect our lives or will nothing change?

Chair Martha Barnett said about the EAP “we are here because there are problems and we have a once in a decade opportunity to make a difference.” Something special can happen again at City Hall!

The Ethics Advisory Panel, made up of nine citizens, including a retired Chief Justice of the Florida Supreme Court and a former President of the American Bar Association, spent over nine months debating the need for more stringent ethics rules and policies.

The end result were ground breaking recommendations that included an appointed ethics officer, penalties for elected officials who violate the new rules, and the requirement for City hired lobbyists to disclose their clients.

Retired Chief Justice of the Florida Supreme Court, Harry Anstead, said during one of the last meetings that  “Tallahassee is the capital of the fourth largest state. We are missing a golden opportunity to distinguish Tallahassee if we don’t do this. Ethics and professionalism is the heart of public service.”

Chair Martha Barnett, former President of the American Bar Association in the debate about an appointed ethics officer stated “we are here because there are problems and we have a once in a decade opportunity to make a difference.”

But City Staff was not persuaded. Instead they have crafted their own recommendations that go against the findings of the Panel.

Staff recommended against an appointed ethics officer because of cost and because it would have to be a ballot measure.

Staff recommended against City hired lobbyist being required to disclose clients, but gave no substantive reason for the recommendation.

And finally, the Staff recommended against penalties for elected officials violating the new ethics rule because “there is no history to indicate that elected officials would fail to comply.”

Check back to Tallahassee Reports for more updates on this story.

The previous meeting set the stage for the debate. Lila Jaber, the Panel member responsible for presenting a recommendation, had proposed that the Ethics Officer report to the City Attorney and if issues with elected officials arose, the City Attorney would contract with an outside consultant to handle the investigation.

However, the Panel pushed back on Jaber’s approach, with members seeking more autonomy for the Ethics Officer. The meeting concluded shortly after Chairperson Barnett recommended elevating the Ethics Officer to a Charter level position with a citizens advisory board providing oversight.

For the next meeting, Chairperson Barnett asked the Panel to review their notes on the issue and asked staff to provide information to the Panel members on how Jacksonville, where an Ethics Officer position was recently created, handled the oversight issue.

So, on Monday, the Ethics Panel was set to decide the most controversial issue left on the table.

The discussion on oversight authority began with Panel member Jaber. She stated that she had reviewed what had been proposed and took into account the public comments and concluded that there was no need to change her original recommendation – the Ethics Officer should report to the City Attorney.

After a couple of attempts by Panel member Jay Landers to fine tune Jaber’s recommendation, former Supreme Court Judge Harry Anstead delivered an impassioned fifteen minute speech.

Panel member Anstead said that he was influenced by the public hearings and the reasoning by Chairperson Barnett for an appointed Ethics Officer. On Barnett’s proposal he said, “This is what we should strive for in ethics and professionalism: something to hold up to what government should be.”

For those who argued against the proposal because of cost and a another “layer of bureacracy” , he said, “the city’s budget is $750 million, the cost to properly fund an Ethics Officer position would be insignificant” and “one more citizen advisory board among the 30 City boards already active should not be a problem.”

He finished by saying that “Tallahassee is the capital of the fourth largest state. We are missing a golden opportunity to distinguish Tallahassee if we don’t do this. Ethics and professionalism is the heart of public service.”

Panel member Jaber responded by saying “I fail to see why the City Attorney can’t do this job.”

But the mood of Panel was clear when member Brent Copeland spoke. He stated his support for Chairperson Barnett’s proposal and said that while all other issues, to this point, had been decided by consensus, it was okay if this difficult issue was not.

The vote was 5-2, with Panel members Jaber and Landers voting no.

Panel manner Jaber requested that her recommendation be presented to the full City Commission. There was no vote on the request and at the end of the meeting it was not exactly clear how this would be handled.

The final meeting of the City’s Ethics Advisory Panel is schedule for June 26.

The vote was 5-2 and followed a spirited debate on the issue of ethics oversight.

Check back for full story.

During the Panel’s meeting on May 30th, scheduled to be its last before presenting their recommendations to the City Commission, the issue of oversight authority could not be resolved and an additional meeting was set for June 10th.

At the May 30th meeting, Panel member Lila Jaber was responsible for presenting a recommendation on oversight authority to the full Panel. The essence of Ms. Jaber’s recommendation was to create a formal “Ethics Officer” that reports to the City Attorney to address staff-level issues. Under Jaber’s proposal, if the City Attorney, who works at the pleasure of the elected officials, determined there were ethic issues with any elected officials, then an outside consultant would be hired to address the issue.

After Ms. Jaber presented her proposal, Panel members began to state their own positions.

Panel member Anstead was the first to weigh in and stated that the public hearing, held the night before, had caused him to rethink his position on a independent board. Based in part on the public testimony, he recommended a five person independent ethics board assisted by a contract ethics officer responsible for implementing the new ethics policy.

For details on what happened at public hearing, click here.

Jaber disagreed and stated “I am not for a board because I do not want to promote confusion. Give the City Attorney a chance.” Panel member John Calhoun agreed with Panel member Anstead on the need for independence and stated that he also was influenced by the public hearing.

Panel member Copeland was concerned about the misuse of power, but was cautiously supportive of Anstead’s proposal. Panel member Landers said he was moved by the public hearing, but that an independent board was too much.

For a list of Panel members with bios, click here.

And then Chairwoman Martha Barnett spoke. And she dropped a bombshell.

As everyone waited to here which way the leader of the Panel would break, Ms. Barnett began by saying that the city of Tallahassee is a well run, complex machine with a budget approaching $1 billion.

She also stated “we are here because there are problems and we have an once in a decade opportunity to make a difference.”

With that, Ms. Barnett said she was not in favor of combining ethics responsibilities with the City Attorney’s office and recommended creating an appointed Ethics Officer and advisory board with responsibilities detailed in the city’s Charter.

Such a proposal would require the City Commission to approve a ballot initiative that would be submitted to voters for approval.

Current City Attorney Shelley was quick to disagree and added that the City does not have an ethics problem and blamed the current issues on “one or two people who keep speaking out.  We have had eleven ethics complaints filed over the years and not one has been found to have any merit.”

In response to Mr. Shelley, Panel member Rasmussen pointed out that “the problem is no one has any confidence that the Florida Commission on Ethics will hold anyone accountable.”

After some discussion, Chairperson Barnett recognized that their was no consensus on the issue and asked that staff schedule another meeting. She also requested that staff look into having the Ethics Officer in Jacksonville speak to the Panel in person or through a conference call.

The City of Jacksonville created an independent citywide ethics oversight and compliance office in 2010. Read about the details here.

The next Ethics Advisory Panel meeting is scheduled for June 10th at 11:30 in the Tallahassee Room on second floor of City Hall.

The focus of the Panel was a recommendation by Panel member Jaber on oversight authority that would create an ethics officer position that would report to the City Attorney. One member argued that such a structure lacked the independence required to have an effective oversight authority.

The Panel ended the discussion without taking a vote on the issue, but the consensus seemed to be leaning towards keeping the ethics officer position within the confines of the City Attorney’s office.

The public hearing began by taking input from seven citizens. The meeting format was informal and the speakers were given great leeway by Chairwoman Barnett to finish their comments.

Six of the seven speakers focused on the need for an independent oversight authority. But the most persuasive speaker was former City Commissioner Penny Herman. She stated as a former elected official her experience was that there needed to be an independent structure to enforce ethics rules that apply to elected officials.

When asked by a Panel member what was wrong with a process that would allow for the City Attorney to turn over ethics issues to a “contracted” ethics officer, Ms. Herman replied by saying that “the problem is the City Attorney would decide what is an ethics issue and the City Attorney works for the elected officials.”

Erwin Jackson, a consistent participant in these hearings, stated that “the City Attorney has been the ethics officer for the last 10 years and that has not worked. We cannot even get the City Attorney to ask the Attorney General of Florida for a legal opinion on deferred compensation. The Panel needs to recommend an independent oversight authority.”

The main argument against an independent oversight authority seems to be concern about creating a new bureaucracy and the associated cost. However, Ms. Herman pointed out that all you need is a citizen committee, like the Ethics Panel, that would hire an ethics officer to implement the adopted ethics code.

Those supporting an independent oversight authority at the public hearing and at other meetings include former City Commissioner Penny Herman, former Director of the Florida Commission on Ethics, Phil Claypool, and former City Auditor Sam McCall.

No public speakers opposed an independent oversight authority.

The Ethics Advisory Panel will meet Thursday morning to finalize the recommendations they will present to the City Commission.

With that, the members of the Panel spent over two hours reaching consensus on major changes to the current rules and laws that regulate the ethics of City Commissioners.

The Panel agreed that City Commissioners and candidates should be required to file financial disclosure information that goes beyond current state and local law. Currently, elected officials and candidates are required to file Form 1. However, the Panel wants more information.

Former Commissioner Debbie Lightsey, in an earlier appearance before the Panel, stated that Form 1 “was merely a mechanism for officials to pretend that they are engaging in disclosure while in fact disclosing very little.”

The Panel will move forward with a recommendation to require more financial disclosure.

The Panel also proposed expanding requirements on how elected officials disclose business relationships at the time of votes. The Panel’s approach will require City Commissioners to disclose conflicts and business relationships that have existed prior to a vote, not only on the day of a vote, as is current law. The Panel is considering a 12-month time period.

The Panel reached consensus on new rules that will implement post-employment restrictions on City Commissioners. The Panel wants to prevent elected officials from using their insider knowledge for personal gain. The new rules will place restrictions on who and when elected officials can have business relationships with after they leave office.

The next meeting is May 29th at City Hall and is structured to get public input on the Panel’s proposals.

One of the major issues addressed at that meeting was if the oversight process for a new ethics code would be handled by the city attorney’s office, as is the current practice, or by an independent committee free from potential influence of elected officials. The city attorney is appointed by the five city commissioners.

At the March 26th meeting, the Ethics Panel heard testimony from the former executive director of the Florida Commission on Ethics, Phil Claypool. His comments were summarized in the minutes of the meeting as follows:

In order to be independent and impartial, Mr. Claypool indicated a separate ethics board comprised of citizens was needed, and that this board would then hire an executive director to oversee the day-to-day operations.

At the same meeting, City Attorney Shelley’s remarks on the issue were summarized in the minutes as follows:

City Attorney Shelley noted that internal discussions occurred relative to where within in the City government an Ethics Officer could be placed in order to mitigate any conflicts and to prevent influence by the City Commissioners or Appointed Officials. City Attorney Shelley indicated one proposal was to have the Ethics Officer be appointed by unanimous decision of 2, 3, or all of the Appointed Officials. However, City Attorney Shelley questioned whether or not there would always be some subtle amount of influence present upon an Ethics Officer in this model. ( Hear the audio.)

City Auditor Sam McCall, who has since retired, spoke at the meeting on the subject of influence from the elected officials and stated that he felt independent decision makers would be needed to implement ethics rules that applied to the elected officials.

Mr. McCall’s comments were not included in the minutes of the March 26th meeting. In an attempt to verify specific comments, Tallahassee Reports requested the audio recording from the meeting. Tallahassee Reports was told that a portion of the audio from the March 26th meeting was accidentally deleted. The portion deleted includes Mr. McCall’s remarks.

Why is this important?

Since the March 26th meeting, City Attorney Shelley seems to have changed his original position on the need for independence in the ethics process. In fact, during the last meeting Mr. Shelley indicated that the city attorney’s office could maintain the independence required to implement the new ethics code without influence from elected officials. This is different from the view expressed by Shelley at the March 26th meeting.

The Panel members rely on minutes of the meeting to clarify points and make decisions. Given Mr. Shelley’s change in position, Mr. McCall’s comments would be a valuable source of information. However, his comments are not currently part of the record.

Tallahassee Reports is waiting on the minutes from the last meeting to verify the exact comments made by Mr. Shelley.

Voting conflicts are one of the main reasons that the Panel was created by the City Commission. The issue revolves around elected officials voting on contracts that benefit business partners or themselves. One of the challenges is identifying the conflicts before votes are taken.

The Panel’s discussion thus far, has indicated a consensus around requiring a more detailed financial disclosure form than is currently in place. Also, Panel members have noted that current forms are not on the City website and have indicated a desire to see this changed.

Some members have voiced concern that burdensome disclosure requirements could result in qualified people choosing not to run for office. Panel member Jay Landers will be providing information and his views on how to address voting conflicts on Thursday.

The current Form 1, filed by City Commissioners, requires that Commissioners provide clients or customers of certain kind of businesses they own and that meet specific threshold criteria. The type of business included in the disclosure is detailed in the Form 1 instructions:

The types of businesses covered in this disclosure include: state and federally chartered banks; state and federal savings and loan associations; cemetery companies; insurance companies; mortgage companies; credit unions; small loan companies; alcoholic beverage licensees; pari-mutuel wagering companies, utility companies, entities controlled by the Public Service Commission; and entities granted a franchise to operate by either a city or a county government.

Among the type of businesses that are exempt from Form 1 disclosure are law firms and consultants.

Tallahassee Reports reviewed the Form 1’s filed by current City Commissioners and found, based on the above exemptions, that no Commissioner is required to disclose any clients or customers.

However, Commissioner Gill Ziffer, who owns a marketing and consulting firm, went beyond Form 1 requirements and listed all of his clients. Also, Ziffer disclosed the names of individuals who are providing income via his rental properties. By providing this information, Commissioner Gil Ziffer is making it difficult for potential voting conflicts to occur.

Tallahassee Reports will keep you informed about the deliberations of the City’s Ethics Advisory Panel.

On Wednesday there is a CRA Board meeting at City Hall. The CRA Board will be given an update on the Performing Arts Center proposal. Also, the Board will vote to spend $150,000 to lease 15 parking spaces from College Town, LLC and $35,000 for the preparation and receipt of a reconnaissance and strategic assessment for downtown Tallahassee by Live Work Learn Play, Inc.

On Wednesday night, the City Commission will hold their regular meeting. Among the issues to be voted on is a staff proposal to execute a two year extension to the option agreement with McKibbon Hotel Group (MHG) and the City of Tallahassee to purchase a piece of property on the corner of Tennessee and Monroe.

MHG indicated that real estate and financial conditions had not allowed them to secure the financing for construction of the office building and they needed additional time to develop the project. MHG shared that they are exploring other possible uses for the site, such as an additional hotel, because conditions are still not favorable for new office construction in the downtown.

On Thursday, the Citizens Ethics Panel will meet at City Hall to continue to formulate their recommendation on a new ethics policy for the City. The issues scheduled to be discussed are voting conflicts and campaign finance.