Ethical Behavior in Office: Know the Law, 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 Florida 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 statute 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 common law (case It seems to be the case with many Part III, Florida Statutes) 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 (case 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, Florida Statutes. 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 South Florida 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.