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 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.

PART I. A CITIZENS' BILL OF RIGHTS

• Citizens Can Set the Standard for Good Government

• Citizens' Bill of Rights for the City of Deerfield Beach

• A City Public Information Act

PART II. A CODE OF ETHICS

• The Purpose of a Code of Ethics

• Charter Provision Relating to Official Conduct

• Our Proposal

• Suggested Revisions to Article VIII

• Implementation

• A City Ethics Commission

• A California City's Innovative Approach to Public Ethics

• Term Limits

Public ethics consists of standards for official conduct which are established, accepted or tolerated by a community.

Of course, the personal integrity of public officials and city employees is the basic component. 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 the pretense of serving the people. In both their personal business and public lives, they try to avoid even the appearance of impropriety.

It is axiomatic that good government always starts with good people.

On the other hand, the operating philosophy of the city government sets a standard for official conduct that transcends the personal integrity of its individual members. Is the government an open and responsive government, or one operated by and for insiders, information closely held or kept secret, the public record distorted to support special causes? Is public opinion casually and arrogantly disregarded, public business conducted in the shadows? It appears to us more every day that "open and responsive" is not the category into which the city of Deerfield Beach falls under the regime of Al Capellini, Larry Deetjen, and the current City Commission.

If the leaders of the community do not set the proper standards, it is the right then for the citizens to write the standards themselves. This is the purpose of a Citizens' Bill of Rights, to insure that people are able to get complete and accurate information from the city and to 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.

The recently enacted Citizens' Bill of Rights for Broward County and a similar provision in the Miami-Dade charter can serve as models for what we might do in this city. A more exact proposal from us is set forth in a working draft that follows this discussion.

We do not think that you can legislate honesty on the part of public officials. But the citizens of a community can prescribe standards for open and responsive city government in the city charter.

Section 1.xx. The Rights of Citizens [Draft of an amendment to Article I of the City Charter]

The citizens of the City of Deerfield Beach establish this City Government in order to protect and serve the residents of the City. In order to secure to the citizens protection against abuses and encroachments by City Government, and to insure all persons fair and equitable treatment, the following rights are guaranteed:

(1) Truth in Government. Each Person has the right to truthful and accurate information from Commissioners 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 City 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 City Commission shall provide for and require the registration of all 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 Web site.

(5) Right to be Heard. Any Person has the right to appear before the City 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 City 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 provide timely notice to Persons entitled to notice of a hearing before the City Commission or City Board or Committee. The notice shall include the time, place and nature of the scheduled hearing, and the legal authority which forms the basis for the hearing. The City shall provide copies of proposed ordinances and resolutions at a reasonable time prior to the hearing, unless the matter involves the adoption of an emergency ordinance or resolution. Notwithstanding any other provision of law or this Charter relating to public notice, the City shall provide notice under this subsection at the earliest practical time after it is known by the City that the matter will be heard by the City Commission or by a City Board or Committee.

(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.

We also propose that a single point of contact (POC) or central authority be established to insure compliance with the Citizens' Bill of Rights by city government. The POC would be a public official, responsible directly to the Commission in the fashion of the City Attorney, to whom all information requests could be directed by citizens. A provision such as this could be incorporated into the Citizens' Bill of Rights or into the Code of Ordinances:

The City Commission shall establish a Public Information Office, and shall appoint the head thereof, which shall be a central point of contact for the dissemination of information to the public concerning the City. Any Person may request from the Public Information Office 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 obfuscation, misrepresentation or distortion of facts on the part of 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. The proposed Citizens' Bill of Rights adds the requirement that the information provided should be complete and accurate.

In this proposal, the POC would be the person to whom all citizens could go for information, rather than having to scout the maze of government departments to find what they need. It would also be his duty to insure that the information provided is truthful and provided within the lifetime of the person requesting the information.

Codes of ethics deal primarily with conflicts of interest, potential problems with official conduct, and situations which give the appearance of impropriety and undermine the confidence of citizens in their public officials. These codes are typically complex and lengthy documents which define the nuances and distinctions that occur when there is a possible conflict between an official's public responsibilities and his personal interests.

Codes of ethics try to establish standards for right official conduct. At the same time, they try not to be so restrictive as to encumber an official's proper exercise of his legal responsibilities.

State law deals extensively with conflicts of interest. 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 provision for official conduct in the charter. This provision sets out a standard for conflicts of interest which is different from the state ethics code.

The city charter provision on official conduct is subject, of course, to interpretation, but no specific provision is made for an administrative process to make findings of fact, refine its meaning, and make determinations of unlawful conduct. State laws are enforced by a state ethics commission.

In the "Noland Affair," which involved Commissioner Noland's participation of the fireman's pension fund negotiations, it was this charter provision which was cited to force her out of the discussions. The city hired an independent attorney to play the role of ethics commission, but unlike an ethics commission, what he determined was never made public.

An effective ethics law must be comprehensive and provide for some administrative enforcement process. It is also essential that the process operates in the sunshine and that all findings, rulings and determinations be accessible by the public.

Section 8.01. Standards of ethics.

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.

Section 8.02. Personal financial interest.

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.

Section 8.03. Penalties.

Violations of ordinances or this charter shall be punishable in accordance with the uniform fines and penalties set by general law.

The city charter in section 8.02 sets a standard for conflict of interest which is actually higher than the state law requires. The charter also authorizes the Commission to establish a code of ethics, but does not require it.

What section 8.02 says, in effect, is 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 states only that a local official cannot vote on a matter "which would inure to his or her special private gain or loss..."

Unfortunately, there is no practical way to enforce this higher standard of conduct short of litigation initiated by individual citizens, who, of course, would have to bear the cost of such action. The other problem is that people, including public officials, tend to forget that the official conduct law exists in the charter. Until an objection was raised by a private citizen in the case of Commissioner Noland, no one had ever considered the impact of this law on the conduct of public officials in Deerfield Beach.

We think the city should adopt a comprehensive code of ethics which is based on the standard already established in the charter and applicable to Commissioners, the City Manager and all other civil servants regardless of rank or position. The charter should direct the Commission to adopt such a code and provide for an independent ethics agency to look at possible conflicts and other ethical issues involving city officials or city workers.

Public confidence in city government requires more than just technical compliance with a set of standards. As stated in our preface, citizens 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. This is a subject that should also be addressed in the charter and more comprehensively in a code of ethics.

Section 8.01. Standards of ethics.

The commission shall, by ordinance, establish a code of ethics for officials and employees of the city to implement the standards of ethics set forth in this section.

(1) 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.

(2) 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.

(a) They shall not hold financial interests that conflict with the conscientious performance of duty.

(b) They shall not engage in financial transactions using nonpublic government information or allow the improper use of such information to further any private interest.

(c) 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.

(d) They shall put forth honest effort in the performance of their duties.

(e) They shall not knowingly make unauthorized commitments or promises of any kind purporting to bind the city government.

(f) They shall apply city funds only to the objects for which the funds were authorized, except as otherwise provided by law.

(g) They shall not use public office for private gain.

(h) They shall act impartially and not give preferential treatment to any private organization or individual.

(i) They shall protect and conserve city property and shall not use it for other than authorized activities.

(j) They shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official government duties and responsibilities.

(k) They shall disclose waste, fraud, abuse, and corruption to appropriate authorities.

(l) 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.

(m) 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.

No changes are proposed to section 8.02.

Section 8.03. Appearance of Impropriety.

(1) Elected officials and employees 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 official or employee 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. Penalties.

Violations of ordinances or this charter shall be punishable in accordance with the uniform fines and penalties set by general law.

Our working draft is largely modeled after ethical guidelines already in effect at the Federal government level. "Appearance of impropriety" rules have been very effective in dealing with conduct of Federal employees 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.

The proposed charter provision mandates a code of ethics by the city and makes clear that ethical conduct by public officials and city employees requires more than just technical compliance with what are minimal standards of ethical conduct. It would be incumbent upon the Commission to decide what consequences flow from an "appearance of impropriety" in the absence of a technical violation or clearly unlawful act on the part of a city official or city employee. The fact is that something that appears to be unethical or unlawful can undermine public trust as much as something that is incontrovertibly a violation of ethical standards or the law.

The proposal also incorporates a provision [draft section 8.03(2)(f)] which requires that public funds be used only for the programs and purposes for which they were authorized. This provision along with draft section 8.03(2)(e) are intended to make clear that secret, out-of-channel deals or other unauthorized expenditures by city employees have ethical, as well as legal, implications. Our proposed Citizens' Bill of Rights 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. It should be noted that a city official or city employee, especially an elected official, may also deal with the city government outside official channels (in other words, as a private citizen), but use his official status or the aura of his position to gain special advantage or privilege for himself or for a friend or business associate. To suggest a case in point: a City Commissioner arranges a deal with the city to provide services to the condo community where he lives which are not usually provided to private communities and not specifically authorized.

As the previous discussion suggests, right conduct as a public official or employee is a complex subject. The last thing we need for a city code of ethics is a camel put together by another city board consisting of political cronies or the usual insiders. If the code project is assigned to a committee, the panel should consist of people qualified to write laws and qualified by reason of education and experience to address issues of public ethics.

Fortunately, the code committee does not have to start from square one. Many cities have adopted codes of ethics, which can serve as models. Municipal ethics ordinances typically prescribe standards of ethical conduct in the following areas:

Business transactions that elected officials and city employees may have with the city.

Conflicts of interest.

Soliciting or accepting gifts from outside parties.

Exploitation of official position by a public official to secure special privileges and exemptions for himself or others.

Use of confidential information -- Some codes prohibit city employees from accepting employment or engaging in any activity that may require or induce them to disclose confidential information acquired through their position or to use confidential information for personal gain or benefit.

Requirements for financial disclosure.

Restrictions on outside employment.

Restrictions on public officials from engaging in lobbying activities after leaving office.

"Cone of silence" on communications between potential contractors and city employees.

Restrictions on public officials and city employees transacting business with persons who do business with the city.

The Commission should also provide for training of city employees (as well as Commissioners and board members) to insure that they know what the standards of conduct are, in general, for public officials and city employees and what the code of ethics provides.

There would be little point to having a code of ethics if there were no independent authority to consider allegations of ethical violations, which would be empowered to hear evidence and make findings of fact and law which respect to any complaint.

A starting point in creating a city ethics commission is the model provided by the Miami-Dade County Commission on Ethics and Public Trust, an independent agency composed of five members. Two of these members are appointed by the Chief Judge of the Eleventh Judicial Circuit. The Dean of the University of Miami School of Law and the Dean of St. Thomas University School of Law each appoint one member. The Director of Florida International University’s Center for Labor Research and Studies appoints the fourth member. The fifth member is appointed by the Miami-Dade League of Cities.

The 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 cannot be controlled by those subject to its jurisdiction and it employs independent counsel. The "Deerfield Beach Commission on Ethics and Public Trust" would, of course, be on a smaller scale than the Miami-Dade County ethics agency, but it should be as sophisticated in its design and operations if it is to be fully effective.