ETHICS TRAINING FEBRUARY 14, 2014Miami -Dade Commission on Ethics and Public Trust ETHICS TRAINING CITY OF MIAMI BEACH ELECTED OFFICIALS February 14, 2014
STATE OF FLORIDA Section 286.011, Florida Statutes GOVERNMENT -IN -THE -SUNSHINE LAW
STATE OF FLORIDA CONSTITUTION ARTICLE I, SECTION 24 (a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board and commission, or entity created pursuant to law or this Constitution.
All meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public and meetings of the legislature shall be open and noticed as provided in Article III, Section 4 (e), except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution . STATE OF FLORIDA CONSTITUTION ARTICLE I, SECTION 24(b)
THE SUNSHINE LAW F.S.286.011(1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting .
“The statute should be construed so as to frustrate all evasive devices . This can be accomplished only by embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion is conducted by any committee or other authority appointed and established by a governmental agency, and relates to any matter on which foreseeable action will be taken .” Justice Adkins in Town of Palm Beach v . Gradison, 296 So 2 d 473 (Fla . 1974 ) THE SUNSHINE LAW : CONSTRUCTION
1.Meetings must be open to the public. THE SUNSHINE LAW: BASIC REQUIREMENTS 3. Minutes of meetings must be taken. 2. Reasonable notice of the meetings must be given.
THE SUNSHINE LAW: THE “PER SE” BOARD MEETING “In order for their to be a violation of F.S. 286.011, F.S.A., a meeting between TWO OR MORE public officials must take place which violates the spirit, intent, and purpose. The obvious intent of the [Sunshine Law] was to cover any gathering of some of the members of a public board where members discuss some matters on which foreseeable action may be taken by the board “ (Emphasis added) Hough v. Stembridge, 278 So.2d 288 (Fla. 3 rd DCA 1973)
SUNSHINE LAW AND THE JENNINGS RULE SUNSHINE LAW JENNINGS RULE LEGISLATIVE YES NO QUASI -JUDICIAL YES YES Jennings v. Dade County, 589 So. 2d 1337 (Fla. 3 rd DCA 1991), review denied, 598 So.2d 75 (Fla. 1992), established presumption of prejudice when board members engage in ex parte communications during quasi -judicial proceedings. Section 286.0115(1), Florida Statutes, allows counties or municipalities, by ordinance or resolution, to remove presumption of prejudice from ex parte communications by establishing a disclosure process.
THE JENNINGS RULE IN MIAMI BEACH Miami -Beach Code, Section 2 -512 •Establishes procedure for ex parte communications in quasi -judicial proceedings by City boards. •Ex Parte communications, investigations or site visits by board members, and expert opinions received by board members, must be placed in public record prior to final action. •If not placed into the record prior to the public meeting, the ex parte communication or other activity must be orally stated on the record at the public meeting. •Those with contrary opinions to the communication must be given opportunity to refute or respond to it. •Removes presumption of prejudice under Jennings .
THE SUNSHINE LAW: PUBLIC ACCESS •Board meetings should be held in buildings that are open to the public and not at inaccessible locations such as private homes •Avoid private lunches or dinners in public dining rooms •The building cannot be locked or have restrictions that unduly impede public access, e.g., cannot be in a place requiring name or I.D. for access (AGO 2005 -13)
THE SUNSHINE LAW: PUBLIC ACCESS OUT -OF -TOWN MEETINGS Whether meeting may be held at remote location will depend on balancing interests of public in having reasonable opportunity to attend against the board’s need to conduct the meeting at a remote distance See Rhea v. School Board of Alachua County , 636 So. 2d 1383 (Fla. 1 st DCA 1994) -- School Board meeting over 100 miles from its headquarters violated Sunshine Law
THE SUNSHINE LAW: PUBLIC ACCESS ELECTRONIC AND TELEPHONE MEETINGS •Online meetings -not permissible unless the public is provided with the means to access the meeting Local boards: •A quorum physically present in one location is generally required •Telephonic participation by a board member permissible if quorum is present and it is permitted by board rules State Agencies : Boards are permitted to conduct meetings without quorum physically present with proper notice of the availability of communications facilities for public access See Section 120.54 (5)(b)2., Florida Statutes
THE SUNSHINE LAW: ONE -WAY/TWO -WAY COMMUNICATIONS Oral Communications •The Sunshine Law prohibits one -way oral communications between board members, i.e., where one party speaks and the second party does not respond Electronic or Written Communications • The Sunshine law prohibits electronic or written two -way communications between two board members about board business. •A one -way electronic or written communication by a board member is permissible if it is kept as a public record and there is no response to it from another board member except at a public meeting.
THE SUNSHINE LAW: LIAISON •It is not permissible to intentionally communicate to another board member through a third party •It is inevitable that some unintentional communication through third parties will occur, e.g., media, office gossip •Violation depends on “intent” of the communicator
THE SUNSHINE LAW: DELEGATION •When a public board delegates any portion of its decision -making authority to another group, individual or entity, that other group, individual or entity becomes subject to the Sunshine Law
•Staff meetings are generally not subject to the Sunshine Law BUT “When a member of the staff ceases to function in his capacity as a member of the staff and is appointed to a committee which is delegated authority normally within the government body, he loses his identity as staff while operating on that committee and is accordingly included within the Sunshine Law . News -Press Publishing Co . v . Carlson , 410 So 2 D 546 , 548 (Fla . 2 d DCA 1982 ) THE SUNSHINE LAW: STAFF MEETINGS
THE SUNSHINE LAW : PUBLIC PARTICIPATION •The Sunshine Law does not require that members of the public be permitted to speak at public meetings. •In 2013 the Legislature passed Section 286.0114, Florida Statutes , which requires boards, subject to limited exceptions, to give members of the public a reasonable opportunity to be heard on propositions before them.
THE SUNSHINE LAW: ADVISORY BOARDS Advisory boards created by government which make recommendations to decision makers but themselves lack decision -making authority may be subject to the Sunshine Law because they are deemed part of the decision -making process.
THE SUNSHINE LAW: FACT -FINDING COMMITTEES •Limited exception for advisory committees established for fact -finding or information gathering •Fact -finding exception does not apply to boards that have “ultimate decision -making authority” Finch v. Seminole County School Board , 995 So. 2d 1068(Fla. 5 th DCA 2008)
THE SUNSHINE LAW: RECORDING While boards may adopt reasonable rules and policies to ensure orderly conduct of meetings, the Sunshine Law does not allow boards to ban non -disruptive videotaping, tape recording, or photography at public meetings.
THE SUNSHINE LAW: SHADE MEETINGS •Attorney Client E xemption: Pending Litigation - Notice Required at public meeting - o ther participants limited to attorney, chief administrative officer and court reporter - Complete transcript required to be made public at conclusion of litigation -Limited to settlement negotiations or strategy sessions related to litigation expenditures •Collective Bargaining Strategy Sessions - Must be actual and impending collective bargaining -Limited to discussions between chief executive officer or representative and legislative body of the public employer
THE SUNSHINE LAW: THE DE FACTO MEETING •It is not improper for non -board members to meet with individual board members; e.g., city manager, municipal attorney, lobbyists •Beware of creating a DE FACTO meeting where a non -board member meets with every board member on an important issue just prior to a meeting and the issue is then decided with minimal or no discussion at the meeting See Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5 th DCA 1979)
THE SUNSHINE LAW: COMMUNITY FORUMS •2 or more board members may be present and address the public provided that they are not purposely communicating with each other •Best Practice: Either advertise the gathering as a public session or leave the room while the other board member is speaking
THE SUNSHINE LAW: COMPETITIVE SOLICITATION EXEMPTION Section 286.0113, Florida Statutes •2011 exemption permits closing of any portion of meetings conducted during a competitive solicitation process where: 1) A vendor makes an oral presentation or answers questions, or 2) Negotiation strategies are discussed by negotiation team members •Exemption permits, but does not require, closed meetings •May conflict with cone of silence provisions in some local governments
THE SUNSHINE LAW: CURING A VIOLATION The civil consequences of a violation, i .e ., voiding the decision or nullifying the process ab initio, may be avoided if the board does not perfunctorily ratify or ceremoniously accept a tainted decision, but takes independent final action in the sunshine following a public discussion of any matters taken up privately . See Tolar v . School Board of Liberty County, 398 So . 2 d 427 (Fla . 1981 )
Section 286.011, Florida Statutes •Criminal Penalties for “knowingly” violating the Sunshine Law - Up to 60 days in jail and/or $500 fine - Removal from office at the discretion of the Governor PROSECUTION OF SUNSHINE LAW VIOLATIONS : PENALTIES • Non -Criminal Penalty – up to $500 fine
STATE OF FLORIDA PUBLIC RECORDS LAW CHAPTER 119, FLORIDA STATUTES
F .S . 119 .011 (1 ) “Public records” means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency . PUBLIC RECORDS: DEFINED
F .S . 119 .07 (1 )(a) Every person who has custody of a public record shall permit the records to be inspected and examined by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records or his designee…. PUBLIC RECORDS: CUSTODIAN
•Public has right of access to the records of state and local governments as well as to private entities acting on their behalf. •In the absence of statutory exemption, this right of access applies to all materials made or received by an agency in connection with the transaction of official business which are used to perpetuate , communicate or formalize knowledge . •Shevin v. Byron Harless , Schaffer, Reid and Associates, 379 So. 2d 633, 640 (Fla. 1980) PUBLIC RECORDS: SCOPE
“Inter -office memoranda and intra -office memoranda communicating information from one public employee to another or merely prepared for filing, even though not a part of an agency’s later, formal public product, would nonetheless constitute public records inasmuch as they supply the final evidence of knowledge obtained in connection with the transaction of official business .” Shevin v. Byron Harless, Schaffer, Reid and Associates, Inc. 379 So. 2d 633,640 (Fla. 1980) PUBLIC RECORDS: DRAFT MEMOS/REPORTS
• Notes and Drafts •Written vs. Oral Requests •E -Mail/Computer Records/Social Media •Transitory Messages •Records transferred to another agency •Judicial Records •Retention and Disposal Issues: Division of Library and Information Services, Florida Department of State PUBLIC RECORDS LAW: Special Situations
•All exemptions strictly construed •Active criminal investigative and intelligence records •Active commission on ethics and inspector general investigations •Active Whistleblower investigations •Patient medical records •Student records •Social security records •Bank account numbers •Personal information of specified categories of public officials and employees PUBLIC RECORDS LAW: Exemptions
• Criminal Penalties A public officer who “knowingly” violates the provisions of F .S . 119 .07 (1 ) is subject to suspension and removal or impeachment and is guilty of a misdemeanor of the first degree, punishable by up to one year in prison, or $1 ,000 fine, or both . PUBLIC RECORDS LAW VIOLATIONS: CONSEQUENCES • Civil Actions - A petitioner who claims to have been denied the right to inspect and/or copy public records is entitled to an immediate hearing . - Attorney’s fees are recoverable by the petitioner even where access is denied on a good faith but mistaken belief that the documents are exempt from disclosure . • Mediation By Office Of Attorney General, F .S . 16 .60
MIAMI -DADE COMMISSION ON ETHICS AND PUBLIC TRUST Code of Ethics for Public Officials and Employees Chapter 112, Section III, Florida Statutes Conflict of Interest and Code of Ethics Ordinance Section 2 -11.1, Miami -Dade Code of Ordinances Miami Beach Code of Ordinances, Sections 2 -446 – 2 -486
GIFTS: M iami -Dade County Code Sec . 2 -11.1(e) ethics.miamidade.gov Hotline: (786) 314 -9560 What is a gift? •The transfer of anything of economic value without adequate and lawful consideration . What forms may a gift take? •money, service, loan, travel, entertainment and hospitality . What are the major exceptions? 1) political contributions 2) gifts from relatives or household members 3) professional or civic awards 4) materials of an informative or advertising nature
When may a gift be solicited by an elected official? Short Answer : Almost Never. See Section 2 -11.1(e)(3), Miami -Dade Code : “[City officials and employees] shall neither Solicit nor demand any gift.” Exceptions • Gifts solicited by Municipal employees or officials on behalf of the Municipality in performance of their official duties for use solely by the governmental entity in conducting its official business. 2 -11.1(e)(2)(f) • Gifts solicited by elected officials or their staff members on behalf of any nonprofit organization where neither the official nor his or her staff receives any compensation as a result of the solicitation. 2 -11.1(e )(2 )(g). GIFTS : Solicitation Miami -Dade County Code Sec. 2 -11.1(e)
GIFTS : Acceptance Miami -Dade County Code Sec. 2 -11.1(e) When may a gift be accepted by a public official or employee in his/her official capacity? Short Answer : Rarely. •Section 2 -11.1(e)(3), Miami -Dade County Code •Section 112.3148 (4 ), Florida Statutes (lobbyist and vendors, political committees) •Section 2 -11.1(w) Miami -Dade County Code (travel expenses) •Section 112.313 (4), Florida Statutes (Unauthorized Compensation) •Section 2 -449, Miami Beach Code (Improper Influence)
PROHIBITED GIFTS (COUNTY) (Sec. 2 -11.1(e )(3)) •No elected official or employee may accept any gift for or because of: •An official public action taken or to be taken, or which could be taken; •A legal duty performed or to be performed, or which could be performed; or •A legal duty violated or to be violated, or which could be violated by any elected official. •It is also a violation to offer the gift in exchange for the above. •Very close to Bribery, a 2d Degree Felony Crime •Ethics Opinion: Major developer in municipality wanted to host a fancy dinner party for elected officials and administrators. COE advised officials not to attend as developer will continue to go before city officials as project continues. Viewed as gift in return for official action to be taken. ethics.miamidade.gov Hotline: (786) 314 -9560
PROHIBITED GIFTS (STATE LAW) LOBBYISTS & VENDORS BAN ON ACCEPTANCE OF CERTAIN GIFTS IN EXCESS OF $100 (Sec. 112.3148(4), F.S.) •Elected officials may not accept gifts valued over $100 from lobbyists or city vendors or political committees. •Exception: •May be accepted on behalf of a governmental entity or charitable organization. ethics.miamidade.gov Hotline: (786) 314 -9560
TRAVEL EXPENSES FROM MUNICIPAL VENDORS M iami -D ade C ounty C ode S ec. 2 -11.1(w ) ethics.miamidade.gov Hotline: (786) 314 -9560 Prohibition on acceptance of travel expenses from City vendors: •No public official or employee shall accept, directly or indirectly, any travel expenses, including, but not limited to, transportation, lodging, meals, registration fees and incidentals from any city contractor, vendor, service provider, bidder or proposer. •City Commission may waive the requirements of this subsection by a majority vote of the Commission. •The provisions of this subsection shall not apply to travel expenses paid by other governmental entities or by organizations of which the City is a member if the travel is related to that membership. •Example: Complimentary Cruises
GIFTS : Acceptance Summary When may a gift be accepted by a public official or employee? •No gifts connected to public duties •No gifts over $100 from lobbyists, vendors or political committees •No travel expenses from city contractors/vendors without waiver, even if some public purpose involved unless waived by the City Commission
What gifts must be disclosed? Any elected official receiving a gift in excess of $100 must report it by filing a gift disclosure form. How must a gift be disclosed? This disclosure shall be made by filing a copy of the disclosure form required by Chapter 112, Florida Statutes, for “local officers ” with the Florida Secretary of State . When must the gift disclosure be filed? No later than July 1 of each year for the preceding calendar year ending December 31 . Quarterly (3/31, 6/30, 9/30, 12/31) GIFTS: DISCLOSURE Miami -Dade County Code Sec. 2 -11.1(e )(4)
BRIBERY/ UNLAWFUL COMPENSATION (SECS. 838.015 & 838.016, F. S.) Definition : •Giving a benefit to any public servant with an intent to influence the performance of any act or omission in the performance of a public duty . •A public servant requesting or accepting a benefit with an intent to influence the performance of any act or omission in the performance of a public duty. •2 nd degree felony – punishable by up to 15 years in prison. •Bribery – prospective; Unlawful Compensation – timing irrelevant •Adkins -Grad Case: Commissioner in Broward municipality who was given leased vehicle and victory party in exchange for her vote. •Defense: “stupidity” Found: “not guilty.” ethics.miamidade.gov Hotline: (786) 314 -9560
UNAUTHORIZED COMPENSATION (SEC. 112.313(4), F. S.) ethics.miamidade.gov Hotline: (786) 314 -9560 Unauthorized Compensation (SEC. 112.313(4), F.S.) No public officer may accept any compensation, payment or thing of value when he knows or with the exercise of reasonable care, should know” that it is given to influence an action by the employee . No spouse or minor child of the public officer may accept the gift . Improper influence (Miami Beach Code, Section 2 -449) No officer or employee of the city shall accept any gift, favor or service that might reasonably tend improperly to influence him in the discharge of his official duties.
UNAUTHORIZED COMPENSATION EXAMPLES •Mayor receives free cable television service from city’s cable franchisee. •City officials receive free membership to Country Club leasing its facilities from City. •DCF employee paid $100 to participate in survey regarding a company doing business with the department. ethics.miamidade.gov Hotline: (786) 314 -9560
LOBBYING Section 2 -485.2, Miami Beach Code •Who is a lobbyist? •Person, firm or corporation employed by principal (paid or unpaid) who seeks passage, defeat or modification of: •Ordinance, resolution, action/decision of City Commission, •Action/decision/recommendation of the City Manager or any City board or committee, •Action/decision/recommendation of City personnel during the entire decision -making process. •Lobbyist specifically includes principal. •All lobbyists shall register before engaging in lobbying activity . •Separate registration required for each principal •City official may not knowingly permit a person who is not registered to lobby him/her. ethics.miamidade.gov Hotline: (786) 314 -9560
TWO -YEAR RULE Miami -Dade County Code, Sec. 2 -11.1(q) •No elected official or employee may: •Lobby any City officer, departmental personnel/employee, •For 2 years after leaving City employment, •In connection with any proceeding, application, bid, contract, claim, controversy, charge or accusation…in which the City is a party or has any interest (direct or indirect). •Section does not prohibit “routine administrative request or application” to a City department. •Exception: if employee becomes employed by and is representing a non -profit organization before the City. e thics.miamidade.gov Hotline: 786 -314 -9560
EXPLOITATION & MISUSE OF OFFICIAL POSITION Exploitation of official position (Miami -Dade County Code Sec. 2 -11.1(g)) No elected official shall use or attempt to use his/her official position to secure special privileges or exemptions for himself/herself or others. Misuse of official position (Sec. 112.313(6), F.S.): •No public officer…shall corruptly use or attempt to use his/her official position or any property or resource which may be within his/her trust, or perform his/her official duties, to secure a special privilege, benefit, or exemption for himself/herself or others. •“Corruptly” means done with a wrongful intent and for the purpose of obtaining a benefit from some act or omission of a public servant which is inconsistent with the proper performance of his/her public duties. ethics.miamidade.gov Hotline: (786) 314 -9560
EXPLOITATION OF OFFICIAL POSITION INVOLVING NON -PROFIT •Vice Mayor of municipality used her position to steer $5,000 of city money to an event being organized by a non -profit listing the Vice Mayor as its sole officer/director. •Charged with exploitation and entered into settlement agreement: •$1,500 fine •Public reprimand ethics.miamidade.gov Hotline: (786) 314 -9560
EXPLOITATION OF OFFICIAL POSITION INVOLVING GOVERNMENT RESOURCES •Mayor of municipality used city -issued cell phone to make personal and international calls for private business, accruing charges in excess of $70,000 . •Mayor then directed manager to “make the charges go away.” •Charged criminally with exploitation and was convicted at trial: •Sentenced to probation and community service •Removed from office by the governor. ethics.miamidade.gov Hotline: (786) 314 -9560
MISUSE OF OFFICIAL POSITION EXAMPLES •Use of publicly -owned facilities or equipment to operate private business. •Avoid a mandatory public bidding process solely to benefit a business owned by a political supporter or relative. •Sexual harassment of a subordinate public employee. •Using a public employee working on government time to perform home repairs or personal services. •Demanding an upgrade of airline seat based upon one’s position as a public official. •Using public facilities or public employees working on government time in a political campaign. ethics.miamidade.gov Hotline: (786) 314 -9560
CONFLICTS OF INTEREST To understand ethical conflicts requires preparation, study, patience and legerdemain…like tongue twisters Conflict Provisions Voting Conflicts (State, County and City) Compulsory Disclosure (County and City) Prohibition Against Transacting Business with the City (County) Prohibition Against Transacting Business with the City Through a Business Entity (County) Prohibited Investments (County) Acquiring Financial Interest (County) Prohibition on Conflicting Employment (County) ethics.miamidade.gov Hotline: (786) 314 -9560
VOTING CONFLICTS Section 1 12.3143, F lorida Statutes •(3)(a) No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer . • Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. ethics.miamidade.gov Hotline : (786) 314 -9560
VOTING CONFLICTS Miami -Beach Code, Section 2 -458(a) •Requires public officer with conflict of interest to file written disclosure of the nature of the conflict, individuals involved, and all material facts before discussion begins on the subject agenda item; and •Have it read into the record at the meeting. ethics.miamidade.gov Hotline: (786) 314 -9560
VOTING CONFLICTS Miami -Dade County Code, Section 2 -11.1(d) •No City Commissioner shall vote on or participate in any way in any matter presented to the City Commission if said person has any of the following relationships with any of the persons or entities which would be or might be directly or indirectly affected by any action of the City Commission: •(i ) officer, director, partner, of counsel, consultant, employee, fiduciary or beneficiary; OR •(ii) stockholder, bondholder, debtor, or creditor if in any instance the transaction or matter would affect you in a manner distinct from the manner in which it would affect the public generally ; OR •If the Commissioner might, directly or indirectly, profit or be enhanced by the action of the City Commission •Requires Commissioner to absent himself or herself during the discussion. ethics.miamidade.gov Hotline: (786) 314 -9560
VOTING CONFLICTS ACTIONS PROHIBITED WHEN FINANCIAL INTERESTS INVOLVED Miami -Dade County Code, Sec. 2 -11.1(n ) •No City official or employee shall participate in any official action directly or indirectly affecting a business in which he or any member of his immediate family has a financial interest. •A “financial interest” has been interpreted by the Ethics Commission to mean more than just an investment or something in the nature of an investment. •It can also include employment where the employment may be affected by the official action. ethics.miamidade.gov Hotline: (786) 314 -9560
WHAT SHOULD YOU DO? •Elected officials in Miami Beach, when they are aware that they have a conflict on an item that is to be discussed and/or voted upon at a meeting and they are present for any portion of that meeting, should do the following : • 1) announce publicly at the meeting the nature of the conflict before the item is heard; •2 ) file written memorandum disclosing all material facts which shall be read into the record; and •3) absent themselves from that portion of the meeting during which the item is discussed and/or voted upon. ethics.miamidade.gov Hotline: (786) 314 -9560
WHAT SHOULD YOU DO? ethics.miamidade.gov Hotline: (786) 314 -9560 •1. Announce your conflict •2. File disclosure •3. Absent yourself
COMPULSORY DISCLOSURE BY EMPLOYEES OF FIRMS DOING BUSINESS WITH THE CITY Miami -Dade County Code, Sec. 2 -11.1(f ) •Should any City official or employee be employed, either himself or herself or through a member of his or her immediate family, by a corporation, firm, partnership or business entity in which he or she does not have a controlling financial interest, and should the said corporation, firm partnership or business entity have substantial business commitments to or from the City or any City agency, or be subject to direct regulation by the City or a City agency, then said person shall file a sworn statement disclosing such employment and interest with the Clerk of the Circuit Court in and for Miami -Dade County. ethics.miamidade.gov Hotline: (786) 314 -9560
SUPPLEMENTAL DISCLOSURE OF FAMILY OR BUSINESS RELATIONSHIPS Miami Beach Code, Section 2 -458(b) •Applies to public officers where there is no legal conflict or declared appearance of conflict. •Requires written disclosure and public announcement of the existence of family or business relationship with person or business entity directly benefited by the subject vote of the officer’s agency. •Family includes spouse, domestic partner, parents, stepparents, in -laws, children, and stepchildren of the public officer. •Business relationship includes person/business entity being the customer of the public officer (or vice -versa) and transacting more than $10,000 of business in 12 -month period preceding the subject vote. ethics.miamidade.gov Hotline: (786) 314 -9560
PROHIBITION AGAINST TRANSACTING BUSINESS WITH THE CITY Miami -Dade County Ethics Code 2 -11.1(c)(1) •Commissioners and their immediate family members are prohibited from entering into a contract or transacting any business with the City in which the Commissioner or his or her immediate family has a financial interest, direct or indirect . •Immediate family members: spouse, domestic partner, parents, stepparents, children, stepchildren. •Transaction /contract is voidable. •Willful violation constitutes malfeasance – and may lead to forfeiture of office/position. ethics.miamidade.gov Hotline: (786) 314 -9560
PROHIBITION AGAINST TRANSACTING BUSINESS WITH THE CITY: WAIVER Miami -Dade County Code, Section 2 -11.1(c) Waiver can be granted by City Commission – requires a supermajority of the board (2/3). Based on a finding that the proposed transaction will be in the best interest of the City and any one of the following: •Open -to -all, sealed competitive bid has been submitted by City personnel; or •Bid has been submitted by architect, professional engineer, or registered land surveyor; or •Services or property involved in transaction are unique; or •Services or property are offered to City at cost of no more than 80% of fair market value (based on certified appraisal). ethics.miamidade.gov Hotline: (786) 314 -9560
FURTHER PROHIBITION AGAINST TRANSACTING BUSINESS WITH THE CITY Miami -Dade County Code, Section 2 -11.1(d) •Commissioners and their immediate family members are prohibited from entering into a contract or transacting any business with the City through a firm in which the Commissioner or his or her immediate family has a financial interest, direct or indirect. •Contract may be rendered voidable . ethics.miamidade.gov Hotline: (786) 314 -9560
PROHIBITED INVESTMENTS Miami -Dade County Code, Sec. 2 -11.1 (l ) •No City official, employee or immediate family member of such official or employee shall have personal investments in any enterprise, either himself, herself or through a member of his or her immediate family, which will create a substantial conflict between his or her private interests and the public interest. ethics.miamidade.gov Hotline: (786) 314 -9560
ACQUIRING FINANCIAL INTEREST Miami -Dade County Code, Sec. 2 -11(o ) •No City official or employee shall acquire a financial interest in a project, business entity or property at a time when he or she believes or has reason to believe that the said financial interest will be directly affected by his or her official actions or by official actions by the City or City agency of which he or she is an official, officer, employee or contract staff. ethics.miamidade.gov Hotline: (786) 314 -9560
PROHIBITION ON CONFLICTING EMPLOYMENT M iami -D ade C ounty C ode , S ec. 2 -11.1 (j ) Elected officials, City Manager, City Attorneys , department heads, advisory board members, and employees may not: •a ccept other employment •w hich would impair his or her independence or judgment •in the performance of his or her public duties ethics.miamidade.gov Hotline: (786) 314 -9560
PROHIBITION ON RECOMMENDING PROFESSIONAL SERVICES Miami -Dade County Code , Sec. 2 -11.1 (p ) •Elected officials, City Managers , department heads, City Attorneys, and advisory board members and employees may not recommend the services of any lawyer or law firm, architect or architectural firm, public relations firm, or any other person or firm, professional or otherwise to assist in any transaction involving the City or any of its agencies •Such recommendation may be properly made : •when required to be made by the duties of office •and when noticed in advance at a public meeting attended by other City officials, officers, or employees ethics.miamidade.gov Hotline: (786) 314 -9560
CERTAIN APPEARANCES AND PAYMENT PROHIBITED Miami -Dade County Code, Sec. 2 -11.1 (m ) •Commissioners, the Mayor, departmental personnel, employees or contract staff shall not appear before any City board or agency and make a presentation on behalf of a third person with respect to any license, contract, certificate, ruling, decision, opinion, rate, schedule, franchise, or other benefit sought by the third person. •Nor shall such person receive compensation, directly or indirectly or in any form, for services rendered to a third person, who has applied for or is seeking some benefit from the City or a City agency in connection with the particular benefit sought by the third person. •Nor shall such person appear in any court or before any administrative tribunal as counsel or legal advisor to a party who seeks legal relief from the City or a City agency through the suit in question. ethics.miamidade.gov Hotline: (786) 314 -9560
CERTAIN APPEARANCES AND PAYMENT PROHIBITED Miami Beach Code, Section 2 -459 •No member of a city board, agency or committee shall directly or through an associate appear on behalf of or as a lobbyist for a third person before the city commission or any city agency. •Limited exception: board, agency or committee member or associate may appear before a non -standing agency on behalf of a not -for -profit entity where the member or associate appearing 1) is not a managerial employee; 2) appears without special compensation or reimbursement; 3) to express support of or opposition to any item ethics.miamidade.gov Hotline: (786) 314 -9560
PROHIBITION ON CERTAIN BUSINESS TRANSACTIONS Miami -Dade County Code, Section 2 -11.1(u ) •No person who is serving as an elected City official or a member of the staff of an elected official, or as City Manager, senior assistant to the City Manager or department director shall enter into a business transaction with any person or entity that has a contract with the City or any shareholder, partner, officer, director or employee of said contractor, unless said business transaction is an arms -length transaction made in the ordinary course of business. ethics.miamidade.gov Hotline: (786) 314 -9560
Section 112.3135, Florida Statutes •Prohibits a public official from appointing, employing, promoting a relative or advancing same •“Relative” includes immediate family, aunt, uncle, niece, nephew, in -law, first cousin, but not fiance or household member •Relative of a board member may not be appointed by the board, regardless of whether the related board member participates in the appointment •Exception made for municipalities with less than 35,000 population for boards not having land -planning or zoning responsibilities •Delegation of authority to hire, promote or advance does not avoid statutory prohibition •Applies to paid and unpaid positions, CEO 95 -12 Section 2 -448, Miami Beach Code •Prohibits relatives of City Commissioners from being appointed or promoted relatives if the City Commission exercises control over the decision. NEPOTISM
e thics.miamidade.gov Hotline: 786 -314 -9560 CONE OF SILENCE Miami Beach Code, Section 2 -486
Cone of Silence e thics.miamidade.gov Hotline: 786 -314 -9560 •Begins when RFP, RFQ or bid is advertised. •Ends when City Manager makes a written recommendation to the City Commission or, for contracts less than $25K, when the City Manager executes the contract. •Prohibits oral communications between the Mayor, City Commissioners or their respective staffs and 1 . Any member of city’s administrative staff, including City manager and his/her staff 2 . A member of a city evaluation and/or selection committee 3 . A potential vendor, service provider, bidder, lobbyist, or consultant
Cone of Silence - Exceptions e thics.miamidade.gov Hotline: 786 -314 -9560 •Competitive processes for the award of CDBG, HOME, SHIP and Surtax Funds administered by the city office of community development •Communications with the City Attorney and his/her staff •Oral communications at pre -bid conferences •Oral presentations before selection committees •Contract negotiations during any duly noticed public meeting •Public presentations made to the City Commission during a duly noticed public meeting •Contract negotiations with staff following the award of an RFP RFQ or bid by the City Commission
Cone of Silence - Exceptions e thics.miamidade.gov Hotline: 786 -314 -9560 •Communications in writing and filed with the City Clerk at any time, with any City employee, official or member of the City Commission, unless specifically prohibited by bid documents •City Commission meeting agenda review meetings between the City Manager, the Mayor and individual City Commissioners •Communications regarding matters of process or procedure between procurement director (and his/her staff) and a member of the selection committee AND between any person and the procurement director (and his staff) •Duty noticed site visits to determine the competency of bidders •Emergency procurement of goods/services
CONE OF SILENCE PENALTIES Penalties for violations 1.Award is voidable. 2.Bidder may be debarred. 3.Violator is barred from serving on a Miami Beach competitive selection committee. 4.Employees are subject to disciplinary action. 5.State Attorney may file criminal charges against violators. 6.Ethics Commission may fine or reprimand offending parties . Hotline: (786) 314 -9560 ethics.miamidade.gov
PENALTY PROVISIONS MIAMI BEACH CODE, SECTION 2 -447 •Removal from office •Dismissal from employment •Any other penalty provided by law ethics.miamidade.gov Hotline: (786) 314 -9560
PENALTY PROVISIONS MIAMI -DADE COUNTY CODE OF ETHICS •Penalty , Section 2 -11.1 (cc), •(1) Proceeding before Ethics Commission . •A finding by the Ethics Commission that a person has violated the Code shall: •subject that person to an admonition, letter of instruction or public reprimand and/or •Fines - ($500.00) for the first such violation and one thousand dollars ($1,000.00) for each subsequent violation. ethics.miamidade.gov Hotline: (786) 314 -9560
PENALTY PROVISIONS •Fines Double When Intentional •If the Ethics Commission finds that a person has intentionally violated the Code: •subject to a fine of One Thousand dollars ($1,000.00) for the first offense and Two Thousand dollars ($2,000.00) for each subsequent violation •Costs can be imposed up to $500 per violation, if intentional •Actual costs incurred by the Ethics Commission • not exceeding five hundred dollars ($500.00) per violation , may be assessed where the Ethics Commission has found • an intentional violation of the Code . ethics.miamidade.gov Hotline: (786) 314 -9560
PENALTY PROVISIONS •Restitution • The Ethics Commission may also order you to pay restitution. •Restitution - paying back the value of the benefit wrongly received by the ethics violator or a third party as a result of the violation. •It is NOT necessary for the Ethics Commission to find that the violation was intentional for them to order the payment of restitution. ethics.miamidade.gov Hotline: (786) 314 -9560
SAO HAS CONCURRENT JURISDICTION The State Attorney’s Office (SAO) has concurrent jurisdiction over all the provisions of the Conflict of Interest and Code of Ethics Ordinance. • If any of these provisions are prosecuted by the SAO they are classified as 2 nd degree misdemeanors and are punishable by a $500 fine and/or 30 days imprisonment or both. ethics.miamidade.gov Hotline: (786) 314 -9560
THE MIAMI -DADE COUNTY COMMISSION ON ETHICS AND PUBLIC TRUST Citizens’ Bill of Rights
CITIZENS’ BILL OF RIGHTS Charter Preamble We, the people of this County, in order to secure for ourselves the benefits and responsibilities of home rule, to create a metropolitan government to serve our present and future needs, and to endow our municipalities with the rights of self determination in their local affairs, do under God adopt this home rule Charter . ethics.miamidade.gov Hotline: 786 -314 -9560
•Contained in Miami -Dade Home Rule Charter adopted May 21, 1957 •Commission on Ethics empowered to review, interpret and render advisory opinions regarding Citizens’ Bill of Rights (Section 2 -1072, Miami -Dade County Code (1997) •Commission on Ethics provided with authority to enforce Citizens’ Bill of Rights and impose penalties set out in Section 2 -11.1(cc)(1) of Miami -Dade County Code of Ethics Ordinance (Charter Amendment passed November 6, 2012; Amendment to Section 2 -1072, Miami -Dade Code of Ethics Ordinance, 2013) ethics.miamidade.gov Hotline: 786 -314 -9560 CITIZENS’ BILL OF RIGHTS
(A) This government has been created to protect the governed, not the governing. In order to provide the public with full and accurate information, to promote efficient administrative management, to make government more accountable, and to insure to all persons fair and equitable treatment, the following rights are guaranteed: ethics.miamidade.gov Hotline: 786 -314 -9560 CITIZENS’ BILL OF RIGHTS
1.Convenient Access . Every person has the right to transact business with the county and municipalities with a minimum of personal inconvenience . It shall be the duty of the County Manager and the Commission to provide, within the County's budget limitations, reasonably convenient times and places for registration and voting, for required inspections, and for transacting business with the County . ethics.miamidade.gov Hotline: 786 -314 -9560 CITIZENS’ BILL OF RIGHTS
2.Truth in Government No County or municipal official or employee shall knowingly furnish false information on any public matter, nor knowingly omit significant facts when giving requested information to members of the public . ethics.miamidade.gov Hotline: 786 -314 -9560 CITIZENS’ BILL OF RIGHTS
3. Public Records. All audits, reports, minutes, documents and other public records of the county and the municipalities and their boards, agencies, departments and authorities shall be open for inspection at reasonable times and places convenient to the public . ethics.miamidade.gov Hotline: 786 -314 -9560 CITIZENS’ BILL OF RIGHTS
4 . Minutes and Ordinance Register •The Clerk of the Commission and of each of the municipal council shall maintain and make available for public inspection an ordinance register separate from minutes showing the votes of each member on all ordinances and resolutions listed by descriptive title . •Written minutes of all meetings and the ordinance register shall be available for public inspection not later than thirty (30 ) days after the conclusion of the meeting . ethics.miamidade.gov Hotline: 786 -314 -9560 CITIZENS’ BILL OF RIGHTS
5. Right to be Heard •So far as the orderly conduct of public business permits, any interested person has the right to appear before the commission or any municipal council or any county or municipal agency, board, or department for the presentation, adjustment or determination of an issue, request or controversy within the jurisdiction of the governmental entity involved… •…matters shall be scheduled for the convenience of the public, and the agenda shall be divided into approximate time periods so that the public may know approximately when a matter will be heard. Nothing herein shall prohibit any governmental entity or agency from imposing reasonable time limits for the presentation of a matter. ethics.miamidade.gov Hotline: 786 -314 -9560 CITIZENS’ BILL OF RIGHTS
6. Right to Notice •Persons entitled to notice of a county or municipal hearing shall be timely informed as to the time, place and nature of the hearing and the legal authority pursuant to which the hearing is to be held . •Failure by an individual to receive such notice shall not constitute mandatory grounds for cancelling the hearing or rendering invalid any determination made at such hearing . •Copies of proposed ordinances or resolutions shall be made available at a reasonable time prior to the hearing, unless the matter involves an emergency ordinance or resolution . ethics.miamidade.gov Hotline: 786 -314 -9560 CITIZENS’ BILL OF RIGHTS
7. No Unreasonable Postponements •No matter once having been placed on a formal agenda by the county or any municipality shall be postponed to another day except for good cause shown … •…and then only on condition that any person so requesting is mailed adequate notice of the new date of any postponed meeting . •Failure by an individual to receive such notice shall not constitute mandatory grounds for cancelling the hearing or rendering invalid any determination made at such hearing . ethics.miamidade.gov Hotline: 786 -314 -9560 CITIZENS’ BILL OF RIGHTS
8.Right to Public Hearing. •Upon a timely request of any interested party a public hearing shall be held by any County or municipal agency, board, department or authority upon any significant policy decision to be issued by it which is not subject to subsequent administrative or legislative review and hearing . •Does not apply to Law Department or advisory bodies. •Reasonable times and other limitations may be established. ethics.miamidade.gov Hotline: 786 -314 -9560 CITIZENS’ BILL OF RIGHTS
9. Notice of Actions and Reasons. •Prompt notice shall be given of the denial in whole or in part of a request of an interested person made in connection with any county or municipal administrative decision or proceeding when the decision is reserved at the conclusion of the hearing . •The notice shall be accompanied by a statement of the grounds for denial . ethics.miamidade.gov Hotline: 786 -314 -9560 CITIZENS’ BILL OF RIGHTS
10. Mayor’s, City Managers’ and Attorneys’ Reports. The County Mayor and County Attorney and each City Manager and City Attorney shall periodically make a public status report on all major matters pending or concluded within their respective jurisdictions . ethics.miamidade.gov Hotline: 786 -314 -9560 CITIZENS’ BILL OF RIGHTS
11. Budgeting. •The County Mayor shall prepare a budget showing the cost of each program for each budget year . •Prior to County Commission’s first budget hearing, the County Mayor shall make public a budget summary. •The summary shall set forth the proposed cost of each individual program and reflect all major proposed increases and decreases, purposes and estimated millage cost, contingency and carryover funds for each program. ethics.miamidade.gov Hotline: 786 -314 -9560 CITIZENS’ BILL OF RIGHTS
12. Quarterly Budget Comparisons. •The County Mayor shall make public a quarterly report showing the actual expenditures during the quarter just ended against a quarter of the proposed annual expenditures set forth in the budget . •Such report shall also reflect the same cumulative information for whatever portion of the fiscal year that has elapsed. ethics.miamidade.gov Hotline: 786 -314 -9560 CITIZENS’ BILL OF RIGHTS
13. Adequate audits. •Annual audit of the County and each municipality shall be made by an independent certified public accounting firm in accordance with generally accepted auditing standards . •Summary of results, including any deficiencies shall be made public. •Proprietary functions shall be audited separately and depreciation on proprietary facilities accrued so the public may determine the amount of any direct or indirect subsidy. ethics.miamidade.gov Hotline: 786 -314 -9560 CITIZENS’ BILL OF RIGHTS
14.Regional Offices. ethics.miamidade.gov Hotline: 786 -314 -9560 Regional offices of the county's administrative services shall be maintained at locations in the county for the convenience of the residents. CITIZENS’ BILL OF RIGHTS
15. Financial Disclosure ethics.miamidade.gov Hotline: 786 -314 -9560 Requires ordinance that provides for: •Filing under oath of personal financial statements by all County and municipal elected officials, candidates for County and municipal elected offices and other designated officials, employees and outside consultants receiving funds from the County or municipalities. •Filing annually under oath of a report by fulltime County and municipal employees of all outside employment and amounts received therefrom. •The Mayor and City manager may require monthly reports from individual employees or groups of employees for good cause. CITIZENS’ BILL OF RIGHTS
16. Representation of Public. ethics.miamidade.gov Hotline: 786 -314 -9560 The commission shall endeavor to provide representation at all proceedings significantly affecting the county and its residents before state and federal regulatory bodies. CITIZENS’ BILL OF RIGHTS
17. Commission on Ethics and Public Trust . CITIZENS’ BILL OF RIGHTS 19 West Flagler, Suite 820, Miami FL 33130 •Establishes Independent Commission on Ethics and Public Trust •Provides authority to review, interpret, render advisory opinions and enforce the county and municipal code of ethics ordinances, conflict of interest ordinances, lobbyist registration and reporting ordinances, ethical campaign practices ordinances, and citizens' bill of rights.
Miami Beach Charter Additional Provisions: ethics.miamidade.gov Hotline: 786 -314 -9560 •Conserve and protect natural resources •No discrimination based upon race, color, national origin, religion, gender, sexual orientation, disability, marital status, familial status or age •Highest standards of ethics for Miami Beach officials and employees who shall abide by and be subject to all applicable codes of ethical conduct •Equal responsibility of citizens for successful operation of government •Remedy for violation: civil suit in Miami -Dade Circuit Court •Officials or employees found in violation shall forfeit office or employment CITIZENS’ BILL OF RIGHTS
Members of the Ethics Commission •Nelson Bellido, Chair •Hon. Lawrence A. Schwartz, Vice -Chair •Dawn Addy •Charlton Copeland •Kerry E. Rosenthal •Joseph M. Centorino, Executive Director and General Counsel Hotline: 786 -314 -9560 E -mail: ethics@miamidade.gov Fax: 305 -579 -0273 Request a speaker: 305 -350 -0630 ethics.miamidade.gov