Florida Senate passes sweeping ethics law but questions remain

Daniel B. Krassner, Executive Director of Integrity Florida

Daniel B. Krassner, Executive Director of Integrity Florida stated in an email, “Senate President Don Gaetz, House Speaker Will Weatherford, Senate Ethics and Election Committee Chairman Jack Latvala and House Ethics and Elections Subcommittee Chairman Jim Boyd are all to be commended for their constructive, bipartisan pursuit of ethics reform. Floridians have not seen our state leaders prioritize and pass comprehensive ethics reform since the implementation of the 1976 Sunshine Amendment.”

However, former Florida Commission on Ethics Executive Director Phil Claypool identified areas of concern about Senate Bill 2, the ethics reform bill just passed 40-0 by the Florida Senate.  Claypool shared the things good about the bill as well as his concerns in a memo to Integrity Florida.  Claypool’s analysis includes these not-so-goods:

[Blind Trusts]

For the first time in Florida, the bill would provide for “blind trusts,” an ethics concept from the federal government and many other states that the Ethics Commission has recommended for several years. In these other jurisdictions, this allows a public official to create a trust for his or her assets, to hand off responsibility for investing those assets to a trustee, and then to “blind” the official to what he or she owns by prohibiting the trustee from telling what is owned or sold. If an official doesn’t know what he or she owns, then the official should not be influenced in his or her public decisions by considering personal gain or loss.

Unfortunately, the bill as currently written takes the Ethics Commission’s recommendations regarding blind trusts and eliminates most of the parts that would protect the public. In effect, the proposal stands the concept of a “blind trust” on its head. Instead of protecting the public from conflicts of interest that a public official may have through “blinding” the official to what he or she owns, the proposed law would allow officials to use their positions for private gain while “blinding” the public to what’s going on.

[Financial Disclosure; Fines; Amendments; Investigations]

The bill requires the Commission to treat an amended disclosure form as if it were the original, so long as the form is filed by Sept. 1st. The intent is to allow an official to file an incorrect disclosure, be notified of the error when a citizen has investigated and files a complaint, and then correct the filing without consequence if he or she can by Sept. 1st.

Someone is being protected here! And it isn’t the public. Shouldn’t officials take personal responsibility for their actions? Already, officials can amend their forms at any time to fix mistakes. Shouldn’t they treat financial disclosure – which they file under oath and make only because they hold the public trust – as seriously as their income tax returns?

[Ethics Commission Investigative Authority]

Part of the bill would allow the Ethics Commission to investigate possible violations when referred by one of several different officials, thus not requiring those officials to file a complaint with the Commission (and allege that they believe there has been a violation) if they believe a situation should be investigated.

This has been one of the Commission’s recommendations and would be a positive step forward, although still a step short of allowing the Commission to initiate investigations on its own. However, the bill also would limit the Commission’s jurisdiction to investigate if the complaint or referral is filed within 30 days of an election against a candidate. This extends the 5-day limitation that is in the current law to 30 days.

This appears to take a step backward – why do public officials need even greater protection?

[Voting Conflicts of Interest]

This is a very technical subject, one that I spent hours lecturing on at various seminars. Currently, State-level officers (as opposed to local government officials) can vote on measures in which they have a conflict of interest, but are required to disclose the conflict within 15 days of the vote (if an elected official), or prior to the vote (if an appointed official). A conflict is created when the measure under consideration would inure to the special private gain or loss of the official, of a principal by whom the official is retained, or of a relative or business partner of the official.

The bill would prohibit State-level officers from voting on a measure that would inure to their special private gain or loss. That is a change in the law. They still would be allowed to vote on matters benefiting their principals, relatives, and business partners but would have to disclose the conflict within 15 days.

It also would amend the law on when State and local officials have a conflict requiring them to abstain and/or disclose the conflict, by defining “special private gain or loss.”

[Gifts from PC’s and CCE’s]

This section creates an entirely new prohibition against some gifts being given to public officials and their families by Political Committees and Committees of Continuous Existence. But not all gifts – just the ones that are “not primarily related to contributions, expenditures, or other political activities” under Ch. 106.

Without seeing any examples of what is intended or without having a specific definition, it is difficult to determine what would be “primarily related to” contributions, expenditures, or other political activities, and what would not. It may be that a definition would make this clearer.

Click here to read the full Phil Claypool Memo to Integrity Florida – Ethics Reform Bill Analysis

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