Ethical Behavior in Office: Know the , Trust Your Conscience

by John Hubbard

have been a city attorney since 1972, nice enough to review these materials. It’s Not Just Statutory and I have been the Dunedin city at- Any misstatements or typographical Long before the people of Itorney since 1974. During that time, errors are mine, not his. put in their constitution that we would I have had extensive experience with have an ethics law, certain principles Florida’s ethics and how it af- A Brief Overview of the of appropriate conduct for an elected fects the elected officials and other em- official or a public employee were ployees in the cities I have represented. Ethics Law (Chapter 112, articulated in the (case It seems to be the case with many Part III, Florida ) law) of Florida. communities that there is a very lim- In the case of Lainhart v. Burr in ited or no discussion of the state’s The ethics law in the State of Florida 1905, the Florida Supreme Court ruled ethics statute initiated by those cities. is based primarily on three principles: that a county commissioner could Public officials who are willing to at- 1. “A public office is a public not buy supplies for the county from tend the Institute of Elected Municipal trust.” himself. At least two of the underlying Officials (IEMO) programs get a two- 2. A situation that “tempts to principles are implicated here: hour training session on the statute. dishonor.” 1. No man can serve two masters; However, even that much time is not 3. No man can serve two masters. and really sufficient to fully discuss it. The first statement is from Article II, 2. Don’t get yourself into a situa- When teaching the IEMO course, I Section 8 of the Florida Constitution. tion that “tempts to dishonor.” attempt to briefly discuss the common The second statement is from Florida The case is interesting because of the law (), as well as state and case law and opinions of the state Com- fact that the court ruled that this was federal statutes that deal with some of mission on Ethics. The third statement unlawful conduct not because a wrong the subjects that are also found within is from the Bible and Florida case law. inevitably results, but because it may Chapter 112, . The application of these three con- and probably will result. The court said The following article is a quick cepts in a situation where an elected or proof that no wrong was intended or summary of many of the subjects that I appointed public official is concerned committed, or that no fraud resulted, cover in my IEMO presentation. I have about an issue of ethical behavior will does not make the behavior legally found that IEMO students appreciate generally yield an answer consistent acceptable. In this case, the contract specific, real-life examples, as they are with statutory and case law. for the sale of goods was voided by very helpful in understanding the scope the court. of the statute. (See page 28 for informa- You Can’t Always Know What to In 1934, the Florida Supreme Court tion about upcoming IEMO sessions.) Do by Reading the Statute decided the case of the City of Leesburg Please understand that some of the The ethics law for the State of v. Ware, in which the court voided a comments made in these materials are Florida is set forth in Part III of Chapter bond-purchase transaction as being somewhat “editorial” in nature since I 112, Florida Statutes. You can read the against public policy because the city have rather strong opinions on the im- statute and still be somewhat uncertain bond trustee was also the president of portance of ethical behavior by public as to your ethical duties. The statute is the bank from which the bonds were officials and employees. interpreted by Commission on Ethics purchased. This was in the middle of It is appropriate to give credit to formal opinions, informal opinions, the Great Depression, and the president Phil Claypool, director of the Florida Florida’s attorney general opinions, of the bank sold certain bonds to the Commission on Ethics, since he was and case law. city. The bonds were of little value,

32 Florida League of Cities PHOTO©ISTOCKPHOTO.COM/MAREK ULIASZ and there was certainly an apparent eral prosecutors on the basis of what 3. Another Palm Beach County conflict in the duties of the president is commonly referred to as “honest commissioner voted to extend to his bank and the duties of that same services fraud.” development rights that in- person as a city bond trustee. The opin- In 1988, Congress enacted the Hon- creased the value of properties ion in this case is wonderfully written est Services Fraud statute, 18 U.S.C. in which he held a secret inter- and articulates the underlying principle §1346, to provide federal prosecutors est and received a share of the that no man can serve two masters or with another method of criminally profits therefrom; and be a judge in his own cause. prosecuting public officials who forget 4. A Palm Beach County commis- What is important to remember here that public service is not undertaken sioner advocated and voted for is that the common law of Florida, as to benefit themselves but to provide a real estate transaction that well as Chapter 112, Florida Statutes, “honest services” to their constituents. benefited his secret financial defines appropriate conduct of elected Federal prosecutors have used this interests in the subject realty. and appointed officials in Florida and statute to react to many different types Cases throughout the country some- that even if a gap exists in the statutory of abuse of office by elected officials. times involve what used to be expected language, the common law principles The application of the statute to pub- political behavior, but which are no may serve to void or otherwise punish lic officials still generates substantial longer lawful, including 1) giving out unethical conduct. discussion in the courts, but as of the thousands of civil service jobs based writing of this analysis, the statute has on political patronage, and 2) hiring or Criminal Statutes not been deemed to be unconstitutional promoting based on nepotism. Secrecy Certain criminal statutes are also and has been applied in many different as to the relationship or act appears applicable to specific types of un- situations. to be a common theme in these cases. ethical conduct. Chapter 838, Florida Essentially, the case law has defined Statutes, deals with bribery, unlawful violations of honest services as follows: The Constitution and the compensation, official misconduct (for “When a political official uses his of- Commission on Ethics example, falsifying or concealing pub- fice for personal gain, he deprives his Article 2, Section 8 of the Florida lic records, or obstructing information constituents of their right to have him Constitution is the basis for govern- about a felony), misuse of confidential perform his official duties in their best mental ethics in the State of Florida. information, bid tampering, and other interest.” The Eleventh Circuit has Its first sentence is: “A public office unlawful acts by public officials. Chap- opined that “public officials inherently is a public trust.” The next sentence ter 839, Florida Statutes, addresses the owe a fiduciary duty to the public to is: “The people shall have the right to misuse of confidential information, make governmental decisions in the secure and sustain that trust against withholding official records, falsifying public’s best interest. If the official abuse.” records and withholding records from instead secretly makes his decision As mentioned earlier, the ethics a successor by public servants. Some of based on his own personal interest . . . statute is found in Part III of Chapter these criminal statute concepts are re- the official has defrauded the public of 112, Florida Statutes. This statute is flected In Chapter 112, Part III, Florida his honest services.” enforced by the Commission on Ethics. Statutes, with different standards and The cases fall into two broad cat- The commission has nine members. different penalties. egories: 1) bribes or kickbacks, and Five members are appointed by the When considering the issue of ethi- 2) cases involving self-dealing. The governor, two members are appointed cal conduct while holding an elective failure to disclose a conflict of interest by the president of the Senate, and or appointive office, or working as a falls within the intent of the statute. two members are appointed by the public employee, there are at least three has been particularly speaker of the House of Representa- areas of the law that govern proper subject to prosecution based on honest tives. Appointments are bipartisan. conduct: services fraud. Appointments are for two years, and 1. The common law; Some recent examples may be members may be reappointed only one 2. The criminal law; and helpful: time. There can be no more than five 3. Chapter 112, Part III, Florida 1. A Palm Beach County com- members from any one political party. Statutes. missioner voted on multiple The commission has two duties. All of these are potentially applicable bond awards to underwriting The first is to issue legal opinions to a given fact situation and may pro- firms where her husband was when requested by a public officer or vide relief against the unethical (or employed without disclosing employee. Opinions of the Commission illegal) conduct of a public official. this information to the public; on Ethics, unlike those of your city at- 2. That same person and her hus- torney, or even the attorney general of Honest Services Fraud band received gifts, such as free the State of Florida, are legally binding Besides the criminal statutes quoted and discounted stays at hotels, determinations of law subject to ap- above, there has been a recent trend of from parties who had matters peal to a District Court of Appeal. Of prosecution of public officials by fed- before the County Commission; course, all of the pertinent facts must

Quality Cities — March/April 2011 334 be accurately provided to the Commis- have known was given to him county commissioner who used sion on Ethics for that opinion to be or her to influence a vote or county equipment and person- truly binding. other action. In other words, it nel to repair a road on his farm The Commission on Ethics’ second is a quid pro quo understand- (use of public property); and duty is to investigate violations of the ing. The title makes it sound a county commissioner who ethics law. The commission may not like a true gift, but it is, in fact, threatened to fire a county institute an investigation, and its pow- a bribe. employee if the employee’s wife ers begin when it receives a legally 2. Doing Business with One’s did not withdraw as a candidate sufficient complaint, which must be Agency. This statute includes for the school board against the submitted on the forms provided by two different relationships. A county commissioner’s friend the commission. All of these materials public official cannot do busi- (misuse of office). There are may be obtained online. ness for his agency with an also several cases or situations It has been my experience that a entity in which he or his spouse involving attempts to avoid a wide variety of people file ethics com- or child is an officer, partner or traffic ticket (misuse of office). plaints. You don’t have to have any proprietor or in which he, his 5. Conflicting Employment or special knowledge or special interest spouse or child has a material Contractual Relationship. in the behavior of an elected or ap- interest of 5 percent or greater. This portion of the statute pre- pointed official, or public employee, This statute also covers that cludes public officials from hav- to file a complaint. Sometimes they are same public official in his pri- ing an employment or contrac- filed based only on newspaper reports. vate capacity doing business tual relationship with a business Unsurprisingly, the great majority of with his agency. entity doing business with the ethics complaints are filed either by 3. Unauthorized Compensa- agency, or having employment citizen activists or political opponents. tion. This part of the statute or contractual relationships provides that a public official, that create a continuing or The Essence of Ethics spouse or minor child may not frequently reoccurring conflict The Florida ethics statute is not accept anything of value if the between the official’s private in- about ethics taught on an academic official, with exercise of reason- terests and the performance of level, which generally discuss a body able care, should have known his public duties or that would of principles of right or good conduct, that it was given to influence impede the full and faithful dis- or the study of the general nature of a vote or other action. This is charge of his public duties. Par- morals or moral choices. It is, rather, not a quid pro quo. This is not ticularly in small communities, money-based or personal benefit-based. a bribe. This part of the statute this provision can be difficult. It The statute’s primary thrust is using an helps to define a legal gift – that has the added requirement that office or a position to obtain a benefit is, a gift that is given but does the public official, in the event for yourself, a member of your family, not influence the actions of of such conflict, must choose an employer, or others. Essentially, it the public official. There will between continuing in office is about using an office or a position be more about this later in the or continuing the employment to benefit yourself in a manner that article. or contractual relationship. would not be possible without the use 4. Misuse of Public Position. This This often leads to a fairly of that office. The ethics statute deals part of the statute does not harsh result, and that fact is with conflicts between the duties and allow a public official to “cor- acknowledged by the Commis- responsibilities of an office or posi- ruptly” use his official position sion on Ethics. This portion of tion and the personal interests of the or any property or resource of the statute is highly dependent person holding that office. It concerns that position to secure a special on the facts of each situation. itself with situations in which a regard privilege or benefit for himself 6. Disclosure or Use of Certain for a private interest tends to lead to a or for others. Keep in mind that Information. As most public disregard of a public duty. this deals with the powers of the officials and employees are office as well as the resources aware, they often will have ac- What Does the Statute Include? (property) of the office. There cess to information not gener- The primary topics of the ethics law are lots of Commission on Eth- ally available to members of the in Florida are: ics cases on this particular part public. This type of information 1. Solicitation or Acceptance of of the statute, including a circuit cannot be used for the official’s Gifts. This is essentially a bribe, court clerk who prevented a personal gain or benefit, or the which requires the acceptance person from purchasing prop- personal gain or benefit of any by a public officer, spouse or erty at a foreclosure sale in other person or business entity. minor child of anything of value order to acquire the property 7. Nepotism. Nepotism is the that the public officer should for his son (misuse of office); a employment or promotion of

34 Florida League of Cities relatives. The issue is addressed A City’s Right to Require More why such a gift is being given to you. in Section 112.3135, Florida Stringent Standards Can you accept it? Do you want to ac- Statutes. There is a specific Chapter 112.326, Florida Statutes, cept it? What is the public perception exemption for municipalities allows political subdivisions and agen- if you accept it? If it doesn’t feel right, with a population of fewer than cies to establish more stringent stan- don’t accept it. 35,000 people, but this exemp- dards of conduct than those specified in As discussed previously, you can- tion does not apply to boards Chapter 112, Part III, Florida Statutes, not solicit or accept a gift based on an with land planning or zoning provided that those standards don’t understanding that you would be influ- responsibilities. The term “rela- conflict with the state statute. Several enced by that gift. That is essentially a tive” is quite broad in its scope. Florida communities are adopting their bribe, and it is absolutely prohibited. The public official is precluded own ethics ordinances. Unlike legal gifts, the amount of such from appointing, employing, Among the cities I represent, one has a gift is not relevant. [See Chapter promoting, advancing or ad- established substantially more stringent 112.313 (2), Florida Statutes.] vocating an individual who is gift standards, precluding gifts of any The other part of the statute deal- a relative of the official. The kind to a city employee, elected official ing with gifts is titled “Unauthorized limitation is on the individual or board member. This can be done by Compensation” and says that a public employee as well. ordinance, if desired. officer or employee will not accept If people give you gifts when you are anything of value when that person General Rules in office and you think it is because they knows it was given to influence a vote Use of the following general rules like you, why do the gifts stop when or other action. You can accept a gift in may help avoid charges of unethical you leave office? any amount: 1) if it is not based on an behavior: understanding that your vote or judg- 1. If you think it might be wrong, Gifts ment would be influenced by the gift, it is. The two biggest areas of questions and 2) if you reasonably know that it 2. Don’t get yourself into a situa- that I get as a city attorney are 1) con- was not given to you to influence a vote tion that “tempts to dishonor.” flicts of interest, and 2) gifts. or other action. 3. Is there anyone who gives you The statute contains a definition The result of this is that you can ac- something who doesn’t want of the term “gift.” The statute is so cept a gift from most regular people. or expect something in return, broad that it basically covers anything A major exception to this is gifts from except your mother? (And you of value. It covers things (tangible lobbyists. Lobbyists are addressed in can’t be sure about her.) property), the use of things, the use Chapter 112.3148, Florida Statutes. 4. People don’t give elected offi- of land, forgiveness of a debt, food A lobbyist is a natural person who is cials or government employees and beverages, entrance fees and per- paid by someone over the preceding gifts because they like them, but sonal services, and then concludes by 12 months to influence your decision because they want something including “any other similar service or making, if you are someone who is re- – at best, it is a sense of obliga- thing having an attributable value not quired to file public disclosure of your tion. already provided for in this Section.” financial interests (or if you are a state 5. Can you accept a gift that does The term “gift” does not include procurement employee.) not influence you? salaries, benefits, fees associated with You need to be particularly careful employment, political contributions, about lobbyists, because not only is the The Gift Law an honorarium, an award, certain actual lobbyist covered by this statute, As was previously discussed, the honorary memberships, the use of a but the principal of the lobbyist is as statute deals with the subjects of Solici- public facility or public property made well. That is to say, the person hiring tations or Acceptance of Gifts [Chapter available by a government agency for the lobbyist comes under the same 112.313(2)], which is essentially a bribe a public purpose, transportation pro- limitations and requirements as does and is absolutely unlawful under any vided to a public officer or employee the lobbyist. A lobbyist has to be a circumstances. The statute also deals by a governmental entity in relation natural person. with Unauthorized Compensation to a officially approved governmental Also, some agencies require lobby- [Chapter 112.313(4)], which discusses business, or gifts provided directly or ists to register with the agency. Perhaps gifts that are legal. To be legal, the indirectly by a state or national orga- yours does, perhaps it does not. In elected official or employee must rea- nization primarily composed of elected either case, you need to identify who is sonably conclude that the gift was not or appointed officials or staff, if your a lobbyist, and you also need to iden- given to the official to influence a vote city is a member of that organization. tify who is the person who hired that or other action. You can see, then, that the term lobbyist. You need to be particularly “gift” is very inclusive. You should careful as to both. always look behind a gift as to who is the donor and ask yourself the reason

Quality Cities — March/April 2011 354 Solicitation of Gifts custody of your governmental entity 501(c) IRC tax-exempt organization Except for very limited circumstanc- or charity. that enters into a business relationship es, you should never solicit a gift. This You may not solicit an honorarium with the officer’s agency and: 1) the is true whether it is from a lobbyist or related to your public duties from officer’s employment is not directly or anyone else. You are specifically pro- anyone. You may not accept an hono- indirectly compensated as a result of hibited by the statute from soliciting rarium from a lobbyist for any reason. such contract; 2) the officer in no way a gift from a lobbyist. This limitation Theoretically, you can accept a gift participated in the agency’s decision also includes a partner, firm, employer of any amount (except from a lobby- to contract; and 3) the officer abstains or principal of a lobbyist. You are al- ist and the principal of a lobbyist) as from voting. lowed to solicit gifts if they are not for long as you reasonably know that it Chapter 112.3143(3)(b), Florida your personal benefit or that of another was not given to you to influence a Statutes, provides an exception to the reporting individual or procurement vote or other action. Obviously, the voting prohibition because of conflict employee, or any member of the im- greater the gift in amount or value, the for a commissioner of a community mediate family of that person. more likely it is that it will influence redevelopment agency. You are absolutely prohibited from you in some fashion. Any gift creates accepting, directly or indirectly, a gift a sense of obligation under the theory Limitation on Appearances and from a lobbyist if you know or reason- of “reciprocity.” However, the law Lobbying by Employees and ably believe that the gift has a value in presumes that you can receive a gift Elected Officials excess of $100. Any gift from a lobby- in any amount that does not influence A person who has been elected to ist that exceeds $25 must be reported you as to your public duties. a municipal office may not personally by the lobbyist. Please note that the represent another person or entity for absolute limitation on a gift from a Exceptions compensation before the governing lobbyist is $100. There are certain statutory exemp- body of the city for a period of two The amount of a gift from a normal tions [Chapter 112.313(12), Florida years after vacating office. There are person (which is unlimited) does not Statutes] to the limitations as described also specific limitations on local gov- apply to lobbyists or the people who in “Doing Business with One’s Agen- ernment attorneys. hire lobbyists. An example of how this cy” and “Conflicting Employment or limitation can sneak up on you is found Contractual Relationship.” City Employees Holding Office in a Commission on Ethics opinion in These limitations can be waived as An employee of a city is precluded which a state legislator accepted a gift to advisory boards by the appointing from holding elective office as a mem- of football tickets from a county com- body (normally a city commission or ber of a city commission or city council mission chairman. The gift value was city council) upon full disclosure to the while that employee continues to work in excess of $100. The Commission on appointing body prior to the waiver, for the city. In other words, you can’t Ethics ruled that the gift was unlawful and an affirmative vote by that body be both an employer and an employee because the county employed a lobbyist by a two-thirds majority. within the same city government. to lobby the Legislature. The commis- Other exceptions are: 1) a rotation sion opinion concludes that the legisla- system; 2) competitive bidding with Limitation on Appointed Official tor did not know that the acceptance no participation by the official and no Representation of the gift would be unlawful. effort to persuade agency employees, A city has the right to adopt an It was a fine decision for that par- and filing a statement disclosing the ordinance providing that an appointed ticular legislator, but given the fact official’s interest or the interest of the officer or a regular employee may not that the commission has now issued official’s spouse or child; 3) purchase or personally represent another person or that opinion, it is unlikely that the as- sale of legal advertising, utilities service entity for compensation before that city sumption of innocence would benefit or for passage on a common carrier; for a two-year period following vaca- another person in the same situation. 4) an emergency purchase; 5) a sole tion of the office or termination of the Always look behind a gift and make source of supply with full disclosure; employment (except for the purposes sure that whoever is giving you the and 6) if the total amount of the trans- of collective bargaining). Your city gift does not hire a lobbyist to lobby action is less than $500 per calendar has to adopt an ordinance to this ef- your city, even if the person is another year. There are certain exemptions for fect, and if it has not already done so, elected official. stockholders, officers or directors of it should seriously consider this type A lobbyist may give you a gift in banks that will not bar a bank from of limitation in order to avoid the ap- excess of $100 if you are accepting it becoming a depository for public pearance of conflict. Elected officials on behalf of your governmental entity funds. There is an additional exemp- are not allowed to conduct lobbying or a charitable organization, but you tion for elected public officers having activities for a period of two years, and may not have custody of this gift for a conflicting employment or contractual it seems logical that this same type of period of time in excess of that neces- relationships, if that officer maintains limitation should pertain to appointed sary to arrange for its transfer to the an employment relationship with a officers and employees.

36 Florida League of Cities Duty to Vote The remote and speculative test orally at the meeting following when Chapter 286.012, Florida Statutes, provides that if there is uncertainty at the conflict is known, a written memo- requires members of municipal gov- the time of the vote as to whether there randum has to be filed within 15 days, ernmental boards or commissions who will be any gain or loss to the elected the memorandum must become part of are present in a meeting to vote unless official, then there is no special private the minutes, and the memorandum has and except “there is, or appears to be, gain or loss that can be identified. to be distributed to the other members a possible conflict of interest” pursuant In the event that an elected official of the agency and read publicly at the to Chapter 112. Failure to vote requires or appointed official has some concern next subsequent meeting. the filing of the disclosure requirements, about whether or not a voting conflict In the instance of an appointed both orally and in writing. The bottom exists, the best practice is to discuss the public officer being considered for line on this is that if you are an elected matter with the attorney for the entity appointment or reappointment, the or appointed official on a board that is and request that the attorney’s opinion appointing body is supposed to con- voting on a matter, you must vote unless be rendered in writing. Not voting and sider the number and nature of the you have a conflict of interest. declaring a conflict in a questionable memorandums of conflict filed. situation is almost always without There is an interesting distinction Voting Conflicts risk, and, often is seen as a careful and between the duties of an elected of- The law on voting conflicts is found responsible decision. ficial and an appointed official. The in Chapter 112 at Section 112.3143, elected official must state the conflict, Florida Statutes. This but there is nothing is probably the por- in the statute that tion of the ethics law My experience has been that the great appears to limit the that creates more participation of the questions than any majority of elected officials want to act elected official on other (with the pos- ethically. Most violations are committed the matter before sible exception of the the elected body. gift law). Most city unintentionally and without forethought. The fact of the attorneys deal with conflict only needs voting-conflict ques- to be made public tions on a fairly frequent basis. Conduct If There Is a Conflict prior to the vote. This could obviously For there to be a voting conflict, the The voting-conflicts portion of the occur long after the elected public of- matter being voted on must inure to the ethics law (Chapter 112.3143, Florida ficial gave his or her opinion on the officials “special private gain or loss,” Statutes) treats appointed and elected issue and attempted to persuade the or to the gain or loss of a principal by public officials somewhat differently. other members of the city commission whom such official has been retained An elected public official may not or city council to a particular decision. or to a relative or business associate. vote if there is a conflict, and prior to An appointed public official is much As previously mentioned, a specific the vote being taken must reveal the more restricted because that official exception is found in this statute for conflict, abstain from voting and file cannot “participate” without first dis- commissioners of community redevel- the necessary written document ex- closing the conflict. The statute defines opment agencies. plaining such conflict within 15 days. the term “participate” to mean any The Commission on Ethics has That document must be incorporated attempt to influence the decision by devised two basic rules to determine into the minutes of the meeting. (City oral or written communication. From whether or not a conflict of interest clerks should be aware of this.) State the reading of this statute, it appears exists. They are: officers may vote. that an elected official can attempt to a. The size of the class test, and An appointed public officer may influence a decision even though that b. Remote and speculative test. not participate or vote in a conflict official has a conflict. Appointed offi- Commission on Ethics decisions situation and must file a written memo- cials are not so privileged. There must boil down to a 1 percent rule for the randum reflecting such conflict prior have been a public-policy reason why size of the class test. In other words, to the meeting at which the matter is the statute was written this way, but it if the number of people or properties considered. This memorandum also seems to me that if elected officials took being affected by a particular vote is must be incorporated into the minutes full advantage of their ability to try to so sizeable that the elected official’s of the meeting, must be provided to influence a vote, and then declared a interest represents 1 percent or less of the other members of that board or conflict at the last second before the that class, no conflict of interest exists committee, and must be read publicly vote was actually taken, the public because the elected official’s interest in at the next meeting held subsequent to would have a hard time understanding the matter is not “special,” meaning it the filing of the written memorandum. why this was proper ethical behavior. is enjoyed by a large number of people If the conflict is unknown prior to the Surprisingly, state officials can partici- or properties. meeting, a disclosure has to be made pate and vote in a conflict situation.

Quality Cities — March/April 2011 374 My advice to clients is that if a are found in Chapter 112.317, Florida fect of law. Treat these issues seriously, voting conflict is known, it should be Statutes. They include impeachment, for they have serious consequences. announced as soon as possible. Usually removal from office, suspension from they are known well before the meet- office, public censure and reprimand, Final Advice ing, if the commissioners or council forfeiture of salary, civil penalties and The ethics statute is hard to navi- members are diligent in reviewing the restitution. The penalties described by gate, and it is complex. Get proper materials distributed to them before statute do not limit the power of the advice when an issue arises. There are the meeting. The smart ones clarify city to discipline its own officers and lots of opinions decided by the Com- the conflict issue, determine what they employees in addition to the statutory mission on Ethics that explain the law, must do, and give me a call to get my penalties. Criminal penalties also apply or, at least, help us to understand the opinion on it as well. Even if I have when criminal are violated. law. (See www.ethics.state.fl.us.) A told them there is no legal conflict, I For elected officials, the statute review of these opinions and the court encourage them to bring the matter specifically provides that a violation of cases interpreting the statute is best up at the meeting, get it on the record, the ethics law constitutes malfeasance, accomplished with legal help. and have me tell them in a public forum misfeasance and neglect of duty for the Also consult your inner ethical that they do not have a voting conflict. purposes of removal from office. If the compass. Most people will be able to Further, I advise my clients to leave violation of the ethics statute rises to identify situations that at least raise the dais and absent themselves from the point of being a felony, Chapter a red flag requiring further study, or the room, if that is possible. I think 112.3173, Florida Statutes, provides may just discourage an act that will that the appearance of someone with that a public officer or employee for- come back to haunt you. Most elected a voting conflict sitting on the dais feits all rights under a public retirement officials enjoy the prerogatives of during the discussion (even if not system. In addition to those penalties, their office, but be careful in using participating in the discussion) sends the status of a public official or public them in circumstances that bring a a bad message to citizens. Eye rolling, employee in their community and question to your mind. Nobody gives nodding, smiling and other types of among their friends would be greatly you gifts because they like you, except body language certainly are a form affected. If nothing else, the public longtime friends and family members. of communication. I think the public embarrassment of being found in vio- If they didn’t give you gifts before and the elected official are best served lation of this statute should be more you got elected to office, be careful by complete non-participation. Most than enough motivation to discourage about accepting them when an elected citizens’ opinion of their government questionable behavior. official. By the way, gifts from relatives is usually not particularly high, and, My experience has been that the are an exception to the definition of at the moment, is at a particularly low great majority of elected officials want “gifts” in the statute. Using your office point. We can all improve the public’s to act ethically. Most violations are to get a benefit for yourself or others opinion of government officials and committed unintentionally and with- that you couldn’t accomplish without employees by not only acting ethically, out forethought. These are unfamiliar that office is probably going to violate but doing everything we can to appear rules. If you have been elected or ap- the statute. to act ethically. Merely obeying the pointed recently, it is possible you have There are criminal statutes and case dictates of the statutes sometimes is not been fully briefed on them. Refer- law (common law) that also come into not enough. ence to standard business ethics is not play in proper circumstances. enough. A pure heart is not enough Finally, occasionally refer back to Conclusion (Almost) – learn the statute. the five “general rules” provided earlier The foregoing is truly a brief discus- in this article. They are a pretty good sion of the ethics law. It does not begin Consult Your Attorney litmus test. It is very difficult to “serve to cover the subtleties or complexities In most circumstances, the very best two masters,” you should do every- of that law. I have not addressed all and first step that you can make is to thing you can to avoid a situation that the rules on the various filings that are consult with your city attorney. If the “tempts to dishonor,” and the guiding required annually and quarterly. I have issue is a matter of some consequence, principal in Florida ethics law is “A not addressed how gifts are valued. ask your attorney for an opinion in public office is a public trust.” A reading of Part III of Chapter 112, writing or that the opinion be given Florida Statutes, is advised. There is orally at a public meeting. John Hubbard has been a city attorney much detail that a brief discussion of If you are in a very difficult situa- since January 1972, and has been city the law cannot cover. tion with great consequences, you may attorney of Dunedin since 1974. He has wish to follow this up by getting either also served as city attorney for several Penalties a formal or informal opinion from the other municipalities in Pinellas County, The penalties for violating the eth- Florida Commission on Ethics. Re- including Belleair Beach, Belleair Bluffs, ics law in Florida are extensive. They member: A formal opinion has the ef- Oldsmar and Tarpon Springs.

38 Florida League of Cities