Ethics reform became a talking point around the time the city started its aggressive movement to redevelop and commercialize the beach area of Deerfield Beach in the late '90's. Public ethics issues raised by actions of then City Manager Larry R. Deetjen and the city commission were discussed in some detail on this website and in other publications.

I proposed a number of reforms in an online treatise Essays on Public Ethics and in other essays.

Actual reform did not gain political traction until two members of the city commission, Mayor Al Capellini and Commissioner Steve Gonot, were charged with crimes of public corruption. Both officials were arrested and removed from office by Governor Crist.

Politicians generally resist the adoption of local ethics law to supplement and tighten the state code of ethics. State law does not provide a local process for hearing complaints from citizens of alleged ethical violations. This is one thing that a local code does.

In fact, no top Deerfield Beach official has ever been found guilty of an ethics violation by the state ethics commission. Yet the press has repeatedly called Deerfield one of the most corrupt cities in this area.

In March 2009, in the final days of its term and in the wake of the Capellini and Gonot arrests, the city commission enacted an ethics code. However, within six months, the new mayor, Peggy Noland, moved to repeal the code.

The city commission did not repeal the code but appointed a citizens committee to review the code and make recommendations concerning its amendment or repeal. The committee largely focused on the unique "don't ask, don't take" gift provisions of the new law.

The city attorney, Andy Maurodis, chairs the committee but does not vote. The members are Donald Londeree, Gloria Battle, Pam Militello, Todd Drosky, and Joan Maurice.

Thus started the great debate on ethics reform.

Ethics Committee Almost Finished - 01/30/10

The Deerfield Beach Ethics Advisory Committee is slated to complete its work at a final meeting on February 10th, 2010. This meeting will also be the first official opportunity for public comment on the proposed revisions of the ethics code before it's submitted to the city commission.

The Broward County Ethics Commission, which is drafting a code of ethics for county government under a voter mandate, is also winding up its work this month. Under its charter, the BCEC is required to finish its code and submit a proposal to the county commission in March. The county commission then must enact the ethics code into law exactly as presented in the projet, or call for a referendum on the code in November.

Our ethics committee is not under any rigid time constraints and could request an extension of its charter from the city commission if needed.

I don't know if the citizens of Deerfield Beach are interested in honest government or not. Only five or six citizens attended the meetings of the ethics committee on a regular basis. Mayor Noland attended all or most of the meetings and Commissioner Miller was present for part of at least one meeting.

I have learned that at one BCEC meeting only two people from the public attended. That's from the entire county. By that standard, our ethics meetings were almost mobbed. However, the BCEC allowed public comment at each meeting. It also heard from public officials and experts. The Deerfield Beach counterpart did not formally take public comment at any of its meetings, although it did hear from Norman Ostrau, a former chairman of the state ethics commission; and Tom Connick, the principal author of the ethics code.

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. - Preamble of the City Charter of the City of Deerfield Beach

Whatever the public's interest, it is pretty obvious that some of our public officials are not interested in honorable government or a strong code of ethics. If they were they would not have sought to repeal or to rewrite the ethics code passed by the previous commission only six months after its enactment.

The only major defect I see in the code revealed over those six months is that the requirements for submission of a complaint are a bit too informal, which invites abusive or at least sloppy complaints. More on this later.

First, I want to address, once again, section 2(o), the gift section. This section states that public officials shall not solicit or accept gifts from most of the people who do business with the city government.

This is the part of the current provision which is most relevant to my discussion here [Code of Ordinances § 2-502(o)]:

A regulated officer, his or her spouse or domestic partner, child or step-child, parent, or member of his or her household, shall not solicit or accept a gift as defined in F.S. § 112.312 from any person or entity that a regulated officer knows, or has reason to believe, has received or sought a land use plan amendment, development permit (other than a building permit) or contract or the payment of city funds from the city within the previous three years.

This is the proposed revision adopted by the committee at its December meeting (added language underscored):

A regulated officer, his or her spouse or domestic partner, child or step-child, parent, or member of his or her household, shall not accept a gift as defined in F.S. § 112.312 in excess of $50 (during any calendar year) from any person or entity that a regulated officer knows, or has reason to believe, has received or sought a land use plan amendment, development permit (other than a building permit) or contract or the payment of city funds from the city within the previous two years or within six months of the date the regulated officer assumed his or her respective office, whichever is shorter.

The "don't ask, don't take" rule in the current code is quite unique. Most ethics codes set a limit on the value of gifts, but do not prohibit "small" gifts. State law requires officials to report gifts over $100.

I can't think of a single reason why an honest public official would accept, let alone ask for, a gift of any value from anyone who has an interest in the outcome of a decision in which that official has a say. In effect, the proposed change, to allow officials to accept up to $50 worth of gifts per year from each person who would otherwise be prohibited, provides wiggle room for officials who are not so honest; and it also provides opportunity for abuse.

The words "solicit or" ("A regulated officer ... shall not solicit or accept a gift....") were stricken from the proposed revision (at the suggestion of the author of this website) because this language in the proposed revision as written would have implied that officials could lawfully solicit gifts up to the amount of $50 per year.

If the committee proposes to change this rule and allow officials to accept up to $50 worth of gifts per year, and the city commission adopts this radical revision of the code, it must explain to the public two things:

One: How is a citizen to know how much a commissioner receives from a developer or contractor per year, let alone from his corporations, shareholders, officers, wives, children, and other principals or representatives?

The adoption of this revision has the effect, as a practical matter, of repealing this section of the code.

Two: How do commissioners explain to their constituents that they are entitled to gifts and other perks from people whose intent is to influence their votes and actions on important matters?

During the committee discussion about this section, one of the members said that surely our officials cannot be swayed by a small gift or doodad.

This is simply naive. When a contractor or developer offers a gift to a commissioner, the intent is to gain the favor of that official and to influence or reward his vote in almost every case.

And the acceptance of that gift is not honest or in the public interest. Clearly, the gift serves only the personal interests of the official and the giver.

This could be said also of most campaign contributions, but these, at least, are reported regardless of the amount of the contribution.

Other examples mentioned during this debate included the case of a developer or contractor who just happens upon an official at the diner and picks up the tab on a glass of ice tea, a seemingly innocuous gesture. One of the committee members raised a situation where an official and contractor or developer were friends or neighbors and customarily exchanged food or items that are defined as gifts by the code at cook-outs and other social events.

Of course, these are situations that are possible. But the code is intended to address the more realistic and damaging case where the contractor or developer wines and dines the official at JB's, not to mention Howard, Tommy, and other relatives or friends. Is anyone so unrealistic as to believe that three-martini lunches are merely "friendly" gestures?

If the committee persists, it needs to do two other things, in my opinion. Section 2(o) needs to prohibit the solicitation of any gift or payment from any person having business with the city. And it needs to require that any gift of any value be reported, just as campaign contributions must be reported under current law.

Maybe if a public official is required to disclose all gifts to the public, he may think twice before accepting one from a city contractor or developer and having to explain it to his constituents.

A few other issues:

A clever and dishonest official could evade the provisions of the revised section 2(o) by "deconstructing" the gift or aggregate of gifts from different sources that represent the same interest.

As I read the revised section, the official might receive a gift from Jack Builder, a developer; from Jack, Jr; from his wife; from Builder, Inc., his corporation; from his dog and from myriad shareholders and lobbyists representing Jack and Builder, Inc. So the aggregate of gifts could be $100 per year, $150, or a lot more. And remember, also, there are no reporting requirements; the chances for the public to find out about this strategy are just about zero.

(Note: this is probably not the way the section is intended to be interpreted.)

It might also be possible for an official to evade campaign contribution laws by accepting "gifts" without reporting requirements. The contributor "donates" a certain amount to the official, who gives the money to his own campaign, without reporting the actual source of the money.

Finally, with respect to section 2(o), there is no solicitation provision as the current proposal is written. Any solicitation of a gift could appear to imply a promise of something in return. So the official "informs" Jack Builder (of Builder, Inc.) that the commission has recently enacted a law which allows him to accept gifts up to $50 per year (wink,wink) without actually proposing a quid pro quo (which would be bribery and violate state law).

On another matter, not relating to gifts, the committee members raised concerns about "abuse of process" or "frivolous" complaints by some ill-intended complainants, which result in needless costs to the city and, of course, tarnish the reputation of the respondent officials. "Frivolous" in this sense does not mean a complaint found to be without merit, but one in which the complainant knows the complaint is without merit and files it with malicious intent.

Responding to these concerns, the city attorney drafted an elaborate procedure which was designed to be independent of political pressures and to assure fairness to all parties. My concerns were that procedures to collect costs from a complainant, depending on what they were, could have a chilling effect on potential good-faith complaints and could also raise due process issues, which I will not detail here.

Under the current code, there are no formal requirements for filing a complaint which kicks-off the process of investigation and hearing of an alleged violation of the ethics code. Complaints can be filed by e-mail. You or I, conceivably, could create an e-mail account using a fictional name or someone else's name and file a complaint; nobody's the wiser.

I proposed and the committee accepted a different, but very simple and reasonable, approach. It will require that the complaint be filed under oath or affirmation.

Therefore, a complaint may not be filed anonymously or by e-mail or falsely in someone else's name. It should, without having a chilling effect on legitimate complainants, discourage intentionally "frivolous" complaints.

Groundless, as well as frivolous, complaints might also be discouraged if the burden of proving that the hearing officer, if appointed, would be competent to hear and decide the complaint fell to the complainant. In other words, a complainant could be required to cite in the complaint the specific provision of the code which the complainant alleges was violated. Obviously, if the complaint (even if it had merit in some other forum or in a college ethics seminar) is not within the "jurisdiction" of the hearing officer, it would be legally insufficient and a waste of time, at some cost to the city.

Incidentally, a requirement of this nature was incorporated in the recently enacted ethics commission law in Palm Beach County.

This article does not address all of the changes likely to be proposed by the ethics committee. Some proposals are useful, as, for example, this change to another part of section 2(o) (again, added language underscored):

Entity includes employees, shareholders, members, partners, officers and directors of the entity, or any person who for compensation has sought during the previous two years to encourage passage, modification or defeat of any proposal, measure or recommendation by any regulated officer.

This revision brings lobbyists into the prohibition, in addition to persons or entities "that a regulated officer knows, or has reason to believe, has received or sought a land use plan amendment, development permit... or contract or the payment of city funds from the city."

The lobbyist ordinance, which requires lobbyists to register, was enacted after the ethics code. This amendment brings the two laws into sync.

Ethics Committee Ends on a Disappointing, But Not Unexpected, Note - 02/11/10

Both the city ethics committee and the Broward County Ethics Commission were expected to finish their work this week. The mission of the city committee was not the same, however, as the BCEC.

For one thing, the BCEC was mandated by voters. The mission was to toughen ethics laws applicable to Broward County government. Whatever the end product of its work, the commissioners of Broward County have only two choices and no others: Yes or No. They can take the new code of ethics as is, or let the voters decide in November.

If history is any guide, the voters will approve the code of ethics, whether it's tough as nails or as wimpy and pointless as the new code of ethics in Palm Beach County. Hopefully it will be the former.

The city ethics committee, by contrast, was mandated by politicians who don't want strong rules of conduct. There is no reason to believe that citizens wanted the new ethics code changed or repealed, or that the review was intended to serve the public interest in any way. It would be a good bet that had the ethics code enacted last March, or an even stronger one, been laid down before city voters in a referendum, it would have been overwhelmingly approved. And the politicians would have had to live with it, regardless.

The committee was a stall. Mayor Noland and Vice Mayor Poitier wanted the code repealed -- flat out, no discussion. Other commissioners recognized the "political problem" in such a precipitous move in view of the building, high-profile corruption scandals in Broward County from which this city would not be immune. So they "compromised" by establishing an ad hoc committee to review the code. No better way to avoid an issue than to appoint a committee.

The intent, clearly, was not to make the code better or stronger. If that had been the case, the other three commissioners, flat out, would have voted down the motion to repeal.

Unlike the BCEC also, where public comment was solicited at every meeting and the testimony of county commissioners was public and on the record, the ethics committee based its work on private discussions with the commissioners whose contents were never made public. Public comment was not solicited, nor welcomed, until the last meeting, last night, when the principal decisions had already been made.

The city ethics committee was a "citizens" committee only in terms of its composition, but not in terms of its representation. The committee represented the city commissioners, not the people of Deerfield Beach. No ordinary citizen rose to speak, when citizens finally had a chance, to advocate that elected officials be allowed to ask for and be showered with gifts from grateful constituents.

Notwithstanding, the committee could have made recommendations aimed at making the code more effective -- it isn't a perfect document -- and it did make some good suggestions, mostly technical in nature. But from the first meeting, it seemed more obsessed with the gift provision and "abuse of process" than it did in making the law better for citizens. That's because, as one citizen pointed out, the people they actually represented did not want, at least privately, to make it better.

The decision of the committee to repeal the "don't ask, don't take" gift rules applicable mainly to developers and city contractors, and allow commissioners to take up to $50 per year from every person and company that represents these interests, is the biggest disappointment and, in my opinion, its largest mistake.

Granted, the now infamous section 2(o) is a unique provision. Most ethics codes allow "small" gifts. But it is not totally unique.

In fact, the BCEC is adopting a zero-tolerance rule for its code similar to our current provision, prohibiting gifts of any kind or size from contractors and lobbyists.

So as they move towards our position, we move backwards.

Both the Miami Herald and Sun-Sentinel have editorialized in favor of zero-tolerance when it comes to gifts to public officials. The Herald put it this way: "[W]hy public officials should be allowed to accept any gifts other than honorary plaques is anybody's guess."

Editors, we know why, and it's no guess. Honest officials will not accept, let alone solicit, gifts of any value from people who have business with the city, no matter what the law says. That's because they know that gifts, just as campaign contributions, are offered for a reason. That reason is to influence decisions.

What the proposed amendment does, in effect, is to give wiggle room to dishonest officials who don't give too many damns about the public trust. Just look at the politicians who wanted to repeal the code outright.

Only one committee member opposed the revision. She even offered a compromise, say ten bucks, to allay concerns that inconsequential, doodad-type gifts elected officials get from time-to-time might trigger an ethics complaint from a persnickety citizen. But I seriously doubt most of the politicos around here are worried about refrigerator magnets and cheap ball point pens. They are worried more about the Bloody Marys at the Cove and free lunches at JB's they are now denied. This leads me to a question:

What difference does it make if the gift is $1 or $100 -- or an aggregate of gifts totaling $50 per year -- if it influences a public official to make a decision that is not in the public interest?

The only way to avoid this conundrum is to prohibit gifts of any value.

It's now up to the commission to do it right. Unfortunately, I can count and we know the history of Deerfield Beach.