Robert J. Sniffen Chair Susan Horovitz Maurer Vice Chair Morgan R. Bentley Matthew F. Carlucci I.

Martin Ford Jean M. Larsen Linda McKee Robison Edwin Scales, III Stanley M. Weston

Virlindia Doss Executive Director C. Christopher Anderson, III General Counsel/ Deputy Executive Director (850) 488-7864 Phone (850) 488-3077 (FAX) www.ethics.state.fl.us

State of Florida COMMISSION ON ETHICS P.O. Drawer 15709 Tallahassee, Florida 32317-5709 3600 Maclay Boulevard South, Suite 201 Tallahassee, Florida 32312 "A Public Office is a Public Trust"

______________________________________________________________________ MEMORANDUM

TO: FROM: SUBJECT: DATE:

Commission Members Virlindia Doss, Deputy Executive Director Proposed Legislation for 2013 May 29, 2012

As you recall, the Commission, in hopes of getting a jump on the 2013 Legislative Session, decided at its last meeting to take up its legislative package at the June meeting. The following will, I hope, give you the background you need and explain your options regarding proposed legislation this year. History The Commission is statutorily required to make recommendations for legislation, and that it does that in its annual report. The Commission is not required to actively seek sponsors for and lobby a legislative agenda, although it has done so for the last several years. In 2009 the Commission unsuccessfully sought a number of small changes to the existing law. In 2010 and 2011, in addition to all the small changes, the Commission's legislative packages addressed more substantive issues such as blind trusts and self-initiation. These efforts were also unsuccessful. In 2012, the Commission included its entire list of recommendations"tweaks" as well as substantive issuesin its Annual Report as recommendations, but actively lobbied only one issue: a remedy for the financial disclosure write-offs. Notwithstanding apparently universal agreement that this is a matter crying out to be addressed, that effort too was unsuccessful.

May 29, 2012 Page 2

Options The Commission can elect to make its legislative recommendations exclusively through inclusion in the annual report, through drafting language for the use of the Legislature without engaging in active lobbying efforts, or though active lobbying. The Commission can seek to actively lobby all its recommendations, or can select some or, as it did last year, only one, for active lobbying. Proposals The recommendations from the 2012 session are attached for your consideration. This list has grown substantially over the years, and you may wish to delete or modify some of the proposals. If the Commission chooses to actively lobby its legislative recommendations, it may wish to focus its efforts on a single issue, as it did last year, and reflect the remaining recommendations in its annual report.

May 29, 2012 Page 3

PRIOR LEGISLATIVE RECOMMENDATIONS OF THE COMMISSION 1. Automatic Fines The problem of officials who fail to pay the automatic fines they receive for failing to make financial disclosure is well-documented. Last year, the Commission proposed amending the law to allow it to record its final orders in these matters as liens on the debtor's real property. This year, the Commission may want to consider expanding its proposal to include putting liens on personal property, and/or requiring the Department of Financial Services to assign the cases to a collection attorney (as opposed to a collection agency) who could reduce the fines to a judgment. 2. Investigations Give the Commission limited authority to investigate situations without having to receive a complaint, and allow the Commission to investigate a situation when referred by the Governor, the Chief Financial Officer, a State Attorney, FDLE, or the Statewide Prosecutor. This authority could be limitedfor example, by allowing the Commission to investigate a situation only if it has received reliable and publicly disseminated information indicating a violation of the ethics laws and only when an extraordinary majority of the Commission agree to investigate. 3. Increased Penalties If the consensus is that the ethics laws lack "teeth," then one approach would be to increase the range of penalties that could be assessed. The Commission has previously recommended increasing the maximum civil penalty from $10,000 to $100,000, but any amount that seems sufficiently severe would be appropriate. 4. Change Standard for Awarding Attorney's Fees against Complainants As a way in which to address the perceived "chilling effect" on potential Complainants, created by the 1st District Court of Appeal's decision in Brown v. State, Comm'n on Ethics 969 So. 2d 553 (Fla. 1st DCA 2007), the Commission has previously recommended legislatively overturning the case. This would restore the law on recovery of attorney fees to the way it had been construed by the Commissionthat Complainants are held to the same standard applicable to media publications regarding public figures. 5. Change the Burden of Proving a Violation from "Clear and Convincing Evidence" to a "Preponderance of the Evidence" Another way to make the ethics laws more enforceable would be to change the burden of proving a violation from "clear and convincing evidence" to a "preponderance of the evidence." The preponderance standard was used by the Commission from 1974 until the

May 29, 2012 Page 4

1st District Court of Appeal ruled in Latham v. Florida Comm'n on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997) that it should be the "clear and convincing" standard. 6. Financial Disclosure a. The Commission occasionally receives inquiries about why certain State and local government officers/employees are not required to file financial disclosure. Also, many filers do not specify the method of valuing financial interests (filers have the choice of picking either percentage thresholds or dollar thresholds). Therefore, the Commission has recommended that the financial disclosure law cover board members of local community redevelopment agencies and local government finance directors, and clarify that the filer must specify which disclosure thresholds are being used. b. Also, all candidates for state and county offices now qualify before the July 1st deadline for financial disclosure. Previously, they qualified a week or two after July 1st, and so the law allows a candidate who also is an incumbent to file a copy of the financial disclosure form that had already been filed (with the Commission or with the Supervisor of Elections) as part of the qualifying papers. Candidates who have filed their disclosure forms when qualifying ought to be allowed to file a copy of that form as their annual financial disclosure filing. c. In opinion CEO 08-09 the Commission concluded that Assistant Regional Counsel/Criminal Conflict were not required to file financial disclosure, even though they are similar to the assistant public defenders who are required to file now. There is no reason why they should not be treated the same as the public defenders and assistant public defenders. d. In 2009 the Legislature amended Sec. 348.003, to require members of expressway authorities, transportation authorities, bridge authorities, and toll authorities created pursuant to legislative enactment to file full disclosure, rather than limited disclosure under Sec. 112.3145. Therefore, the Commission recommended Sec. 112.3145 be amended to delete references to these bodies. 7. Executive Branch Lobbying Law The provisions of the Executive Branch Lobbying Law (Sec. 112.3215) regarding procedures and penalties for violations do not parallel those provided in the Legislative Lobbying Law (Sec. 11.045). This appear to have been an oversight which the Commission has suggested should be corrected. 8. Gift Law a. State "procurement employees" are subject to the gift law. This broad category of State employees is identifiable based only on the employees' particular activities.

May 29, 2012 Page 5

It would help agencies and these employees if the statute gave a more precise definition of who is a "procurement employee" and for how long. b. Also, in some instances a vendor currently doing business with an agency is not the principal of a lobbyist within the past 12 months, even though all would agree that the vendor should not be providing honoraria or gifts worth more than $100 to the officers and employees of that agency. The Commission has previously recommended that vendors be specifically added to the list of prohibited donors in Sec. 112.3148. 9. Voting Conflicts Law a. There have been several publicized situations involving local officials participating in discussions and attempting to influence agency decisions even though they had a voting conflict that precluded them from voting on the matter. One of these officials was convicted of criminal activity arising out of this conduct. The Commission proposed the law regarding voting conflicts be changed to prohibit local officials from making any attempt to influence a decision in which they have a conflict. b. In the past, the Commission reviewed a situation where the official voted on a matter that benefited the corporate "sibling" of his employer. It suggested specifically adding corporate siblings to the list of entities which would trigger a voting conflict. c. The Commission has also previously recommended that the voting conflict standard for appointed State officials (as opposed to elected State officials) should be changed to mirror the standard for local officials. This means that appointed State officials would be required to abstain from voting on matters where they have a conflict of interest, whereas now they are not prohibited from voting, and would be prohibited from making any attempt to influence a decision in which they have a conflict. d. Finally, the Commission has previously recommended that the law prohibit an official who has a conflict that requires him or her to abstain from a vote from making any attempt to influence staff about the matter, or to use staff members to influence the outcome of that matter. 10. Blind Trusts The ethics laws of many states, as well as the U.S. government, allow a public official to place private financial interests that may pose a conflict of interest with public duties into a "blind trust." This kind of trust is intended to remove temptation from the official and reduce even the appearance that public decisions are based on the official's private interests, by limiting the official's ability to control investments that may involve

May 29, 2012 Page 6

conflicting interests and limiting the official's ability to even know how his interests may be affected by public policy decisions. The Ethics Commission's past recommendation covered the Governor, Lieutenant Governor, and each Cabinet member, although the law easily could be amended to include other public officers and employees. The recommendation provided that the public official's economic interests in the trust would not give rise to either a prohibited conflict of interest or a voting conflict of interest under the Code of Ethics, thereby protecting the official from unwarranted accusations. The recommendation also prohibited the official from exercising any control over the trust, except for general directions regarding investment goals, requests for distributions, and directions for dealing with assets which might pose a conflict of interest. In addition, it prohibited the official from learning about the trust's investments, except to the limited extent necessary for personal tax returns. The recommendation also: described how interests in a blind trust would be reported on the official's financial disclosure statements; required disclosure of the assets going into the trust when created; limited who can serve as a trustee; prohibited the trustee from investing trust assets in businesses which the trustee knows are regulated by or doing significant business with the official's public agency, and provided for full disclosure if the blind trust is terminated. Finally, the recommendation called for the blind trust to be approved by the Ethics Commission. 11. Anti-Nepotism Law The Commission has reviewed a situation where a public official's relative was appointed to a position by the board on which the official served, with the official abstaining from voting. It recommended that the law should make it clear that the non-voting relative will be held responsible under these circumstances. 12. Appearance of Impropriety Standard Despite the specific, good standards that have been enacted by the Legislature, the Commission has expressed concern that too many members of the public believe that public officials act more out of consideration of personal gain than for the public welfare. In part, this is because of a number of situations where public officials may not have violated an existing standard, but the public believes that there has been, at least, the appearance of impropriety. The Commission has been wary of enacting a standard that is too vague to be applied fairly, but notes that there currently are a number of ethical standards that apply to lawyers, judges, and even members of the Public Service Commission that address actions that give the appearance of impropriety. Attempting to address the problem of appearance of impropriety with more specificity, the Commission has suggested that it is possible to create an ethical standard that prohibits knowingly acting in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy the official's favor in the performance of official duties, or that

May 29, 2012 Page 7

the official is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. 13. Definitions a. The definition of "business entity," in the Code of Ethics, currently includes corporations, firms, enterprises, or associations. The Commission has suggested in the past that the definition be amended to clarify that "limited liability companies" (LLCs) meet the definition. b. The Commission has recommended that the definition of "candidate" in the Code of Ethics under Sec. 112.312(6), should make it clear that candidates for nonpartisan offices are covered. That statute refers to candidates who file their candidate's oath under Sec. 99.021 and should also refer to the oath under Ch. 105.