Ethics & Campaign Finance Reform Report Discussion

1. Discussion of Ethics Recommendations From the Final Report of the Task Force on Ethics & Campaign Finance Reform Presented by Thomas B. Drage, Jr. County Attorney and Dana Crosby, Assistant County Attorney April 22, 2008

2. Discussion Outline • Introduction • Legal background • Recommendations and discussion • Board direction

3. Discussion Outline • Introduction • Legal background • Recommendations and discussion • Board direction

4. Introduction The Task Force on Ethics and Campaign Finance Reform met from March to November of 2007. The Task Force presented its Final Report to the BCC on January 29, 2008. The Final Report contained 20 recommendations -- -- 16 recommendations on ethics -- 4 recommendations on campaign finance

5. Introduction At the request of the BCC, the campaign finance recommendations were brought back on February 26, 2008. The BCC took the following action on the four campaign finance recommendations: • 2 provisions were added to the BCC legislative priorities for this year; • 1 provision will be implemented by a change in the County procurement ordinance; • the BCC took no action on 1 provision.

6. Introduction Issues to consider as we go through the recommendations- Issues of Broad Applicability -- 1. How will the recommendations be implemented? 2. What will be the enforcement mechanism and penalties for noncompliance? 3. What will be the effective date of any adopted recommendation?

7. Introduction Issues concerning specific recommendations -- 4. On disclosure requirements -- Should there be retroactive applicability? Is two years a reasonable period? 5. On post-employment restrictions -- Should this provision apply broadly to those doing any business with the County or more narrowly to those lobbying for compensation before the BCC? Should current County officers and/or employees be grandfathered? 6. On staff level approvals -- How broad should this extend?

8. Discussion Outline • Introduction • Legal Background • Recommendations and discussion • Board direction

9. Legal Background Local Authority -- • State law allows local governments to impose more stringent standards of conduct or disclosure requirements than state law; • Requirements cannot conflict with state law. (s. 112.326, F.S.) • State Ethics Commission is only empowered to enforce violations of the State Code of Ethics. • Enforcement of more stringent local provisions must occur at the local level. (CEO 79-62)

10. Legal Background Local Authority -- Examples include: • Miami-Dade County, City of Jacksonville and City of Tampa have local ethics commissions. • Florida law contains a public records exemption for complaint and records relating to preliminary investigations for the State Commission on Ethics, the Miami-Dade Ethics Commission, or any municipal ethics commission. (s. 112.324(2)(a), F.S.)

11. Legal Background Penalties -- Penalties available to the Commission on Ethics for state ethics violations by public officers may include: • Loss of Office/Employment • Suspension • Public Censure or Reprimand • Civil Fines or Penalties • Restitution of any benefit received due to violation • Felonies for conviction of bribery, Misuse of Office (s.112.317, F.S.)

12. Legal Background Penalties -- Penalties for local government are dependent on the enforcement mechanism. Enforcement available to local governments include: • Criminal Misdemeanor or • Civil Infraction

13. Legal Background Criminal penalty • Notice to Appear or arrest made by Sheriff’s deputies at time of offense. • Prosecuted by the State Attorney. • Penalty is determined in court. May be up to 60 days in jail and/or a fine of up to $500. Section 1-9, County Code, and Section 125.69, FS

14. Legal Background Civil infraction • Civil citation is issued by Code Enforcement Officer. • Administrative process. • Penalty is as provided in the code but fine cannot exceed $500. Article III, Chapter 11, County Code, and Part II, Chapter 162, FS

15. Legal Background Post-employment restrictions -- • Florida Constitution authorizes restrictions on personal representation before the governmental body of which a person was an officer for two years after vacating office. (Art. II. Sect. 8, Fla. Const.) • Florida law provides that a person who has served on the BCC may not personally represent another for compensation before the BCC for 2 years after vacating office. (s. 112.313(14), F.S.)

16. Legal Background Post-employment restrictions -- • Florida legislature extended post-employment restrictions to certain of its employees but provided for a 'grandfather' clause. (s.112.313(9), F.S.) • Florida law allows a county to adopt an ordinance to provide that an appointed county officer or county employee may not personally represent another for compensation before the BCC for 2 years after leaving office or terminating employment. (s. 112.313(13), F.S.)

17. Discussion Outline • Introduction • Review of legal Background • Recommendations and discussion • Board direction

18. TF Recommendation #1 County should seek legislation to extend public records and open meeting exemptions for ethics violation complaints until probable cause is found to all counties having a local ethics commission (by whatever name known). Recommendation

19. Discussion TF Recommendation #1 • Task Force did not recommend a local commission on ethics for Orange County. • Legislative changes are required to implement this recommendation. • Public Records exemption requires a separate bill. • Request for legislation can be added to County's 2009 Legislative Priorities.

20. TF Recommendation #2 The Mayor and members of the BCC enact an ordinance to require that officers and employees filing financial disclosure (specifically including the chair of the Development Review Committee), file quarterly financial disclosure within thirty (30) days after quarterly cut-off dates. One quarterly report may be an income tax return. However, all sources of income, business associates, subsidiary entities and real estate holdings (the latter - not homestead- in Orange County) must be disclosed quarterly. Recommendation

21. Discussion • Can be implemented by ordinance. • For elected officers BCC must establish an enforcement mechanism and specify penalties for noncompliance. • For employees, enforcement can be per policy manual or by same method used for elected officials. • BCC must establish an effective date. TF Recommendation #2

22. TF Recommendation #3 County provide enhanced ethics training to all officers and employees, regardless of whether they are subject to financial disclosure. Recommendation and Discussion This item can be implemented by executive action.

23. Recommendation and Discussion TF Recommendation #4 -- The Task Force recommended the County establish a new position (Ethics Officer) to provide ethics training, information and guidance but not enforcement. County Attorney's office currently has an attorney who provides ethics guidance and assistance to officers and employees. Task Force suggested this position not be in the County Attorney's office. This item can be implemented by executive action.

24. TF Recommendation #5 County should adopt a local code of ethics applicable to all County officers and employees. Recommendation

25. TF Recommendation #5 Discussion • County Charter contains a code of ethics which defers to the Florida Statutes. • Per Florida law, County can adopt an ordinance containing more stringent standards of conduct and disclosure requirements. • BCC must establish an effective date, an enforcement mechanism and penalties for noncompliance.

26. TF Recommendation #6 County should implement electronic sign-in of all visitors to the 5th floor of County Administration, including lobbyists registered under the County lobbying ordinance. Recommendation and Discussion County staff is looking into implementation of this program at this time.

27. TF Recommendation #7 The Mayor and BCC should enact an ordinance that requires that the Mayor and BCC members disclose any “business dealings” entered into by such individual within seven (7) days of the formation of or entering into of the “business dealing.” In an ordinance or by charter amendment, the BCC is asked to define what constitutes a "business dealing." Recommendation

28. Discussion • This recommendation can be implemented by County ordinance. • BCC must establish in the ordinance an effective date, enforcement mechanism and penalties for noncompliance. • Locally defined terms cannot conflict with state law. TF Recommendation #7

29. TF Recommendation #8 The BCC should determine which County reviews and approvals should come before the BCC for consideration and approval rather than County staff, when such approval would or could affect the Mayor or a member of the BCC, or his or her business partner, family member, or employer. Recommendation

30. Discussion Transactional: BCC approval not required for contracts $100,000 or less per s.17-310(h) of the County Code. Examples of County transactional staff reviews and approvals done each and every day: -Citizens' Commission for Children grants; -Community Action programs; -Head Start programs -SHIP contractors; -M/WBE certification approvals;     -Parks & Recreation Field of Dreams;      - PCAN providers;      - Ryan White Title 1 providers; and     - Many other transactional grants and awards. TF Recommendation #8

31. Discussion Development Activity: County staff reviews and approves applications for development activity which may not require Board approval. For example, numerous reviews and approvals are done daily by staff in the County's Division of Building Safety, Zoning Division, Environmental Protection Division, and Public Works and Utilities Departments. TF Recommendation #8

32. Discussion Permits: County staff reviews and approves numerous permits each and every day, such as: Boat dock permit Capacity Encumbrance Letters (concurrency) Concurrency Vested Rights Certificate Consistency Vested Rights Certificate Electrical permit Fence permit Fire service permit Floodplain permit Mechanical permits (a/c, heating, ventilation) Moving of structures Plumbing permit Right-of-way utilization permit Roofing or sheet metal permit Shoreline alteration permit Sign permit Tree removal permit Underground utilities permit TF Recommendation #8

33. Discussion • Boards: • County also has a myriad of staff level boards with final authority including: • Concurrency Review Committee (ch. 30, Code); • Development Review Committee (ch. 34, Code); • Alternative Road Impact Fee Committee (Rule 4.02, Co. Admin. Regs.); and, • in some cases, the Road Agreement Committee. TF Recommendation #8

34. Discussion • This recommendation contains a specific issue on which we request BCC direction. • BCC is asked to determine how broadly we apply this recommendation. For example, should it extend only to staff level boards with development-related approval? • This recommendation can be implemented by County ordinance. TF Recommendation #8

35. TF Recommendation #9 A county-wide Local Ethics Advisory Board should be created to monitor ethics compliance, recommend the need for additional regulation, and oversee and evaluate ethics training and education, and to encourage consideration of ethics policies in other jurisdictions within the county. Recommendation

36. Discussion • This recommendation can be implemented by the Mayor/BCC by ordinance, resolution or even charter amendment; however, Mayor/BCC must clearly establish scope, purpose and composition of such a Board. • All work of such a Board is subject to public records and Sunshine laws until such time as Legislature grants County an exemption. TF Recommendation #9

37. TF Recommendation #10 A ban on gifts to the Mayor and BCC except for up to $35 for meals at meetings of professional, civic, non-profit and charitable organizations, and de minimus gifts, and except for those meals at a function where the Mayor or member is the featured speaker and the meeting is open to the public (even if an admission is charged). Recommendation

38. Discussion • This recommendation can be implemented by County ordinance. • BCC must establish in the ordinance an effective date, enforcement mechanism and penalties for noncompliance. • Locally defined terms cannot conflict with state law. TF Recommendation #10

39. TF Recommendation #11 The Mayor and members of the BCC should by ordinance adopt a policy to prohibit the Mayor, members of the BCC, or those County employees who file financial disclosure from doing business with the County or representing anyone for compensation before the County within one year of leaving office or employment. The County Administrator may grant a waiver as to any affected ex-employee for good cause shown (including hardship). Recommendation

40. Discussion • State law currently provides that a person who has served on the BCC may not personally represent another for compensation before the BCC for 2 years after vacating office. • State law also allows the County to enact an ordinance to provide for limited 2 year post-employment restrictions for County employees. • Recommendation as drafted is much broader than requirements of law and is applicable to officers and employees. TF Recommendation #11

41. Discussion • This recommendation contains a specific issue on which we ask for BCC direction -- whether to grandfather existing employees and whether the activity should be limited to lobbying activity. • Additionally, if implemented by ordinance BCC should provide direction on the following -- • establishing an enforcement mechanism, • establishing penalties for violation, and • establishing objective criteria for waiver for use by the County Administrator. TF Recommendation #11

42. TF Recommendation #12 The Mayor and members of the BCC should require that vendors seeking or awarded a contract by the County not hire or engage any individual who, as a County employee, worked on that bid or proposal package for one year after the employee leaves the county. The County Administrator may grant a waiver as to any affected ex-employee for good cause shown (including hardship). This provision could be included in the bid package and contract. Recommendation

43. Discussion TF Recommendation #12 • State law allows County to enact an ordinance to provide for limited 2 year post-employment restrictions for County employees. • If BCC seeks to adopt such an ordinance, direction will be needed: • to establish an enforcement mechanism, • establish penalties for violation, • determine whether to grandfather existing employees, and • establish objective criteria for waiver. • Future procurement documents can include this restriction as a condition, a violation of which will make a contract voidable.

44. TF Recommendation #13 The Mayor and members of the BCC should by ordinance require that “Business Relationships” (as defined by ordinance or Charter amendment) of the Mayor or BCC members be disclosed in writing prior to a meeting or verbally at a meeting when that person brings a matter before the County or when matters benefit any such person. Recommendation

45. Discussion • This recommendation can be implemented by ordinance. • BCC must establish in the ordinance an effective date, enforcement mechanism and penalties for nondisclosure. • Locally defined terms cannot conflict with state law. TF Recommendation #13

46. TF Recommendation #14 The Mayor and members of the BCC should enact an ordinance requiring that the Mayor or member of the BCC abstain from voting on any matter coming before the BCC if the matter is brought by or benefits a person with whom the Mayor or member has a Business Relationship at the time of the vote or had a Business Relationship within the previous two (2) years prior to the matter coming before the BCC. Recommendation

47. Discussion • State law contains criteria for abstaining from a vote. • BCC could locally adopt an ordinance defining this as a factor to create an appearance of conflict. • This recommendation contains a specific issue for BCC direction -- does BCC want retroactive application? • Additionally, BCC must: • determine if 2 years is reasonable, • establish an enforcement mechanism, and • set penalties for noncompliance. • Locally defined terms cannot conflict with state law. TF Recommendation #14

48. TF Recommendation #15 The Mayor and BCC should adopt an ordinance or policy requiring if the Mayor or member votes favorably on a matter before the BCC and within 1 year after such vote the Mayor or member enters into a business relationship with the person who brought the matter to the BCC or benefits from it, the relationship must be disclosed and attached to the minutes of the BCC meeting at which the vote previously occurred. Recommendation

49. Discussion • BCC can implement this disclosure recommendation by ordinance. • BCC must establish an effective date, enforcement mechanism and penalties for noncompliance. • Minutes, which are corrected and approved by the BCC in a timely manner following each meeting, are records of board action and should not be altered in this manner. TF Recommendation #15

50. TF Recommendation #16 The terms “business relationship” and “benefits” should be defined by ordinance and should be broadly construed as to its application. These definitions should not include any ownership interest by the Mayor or member or “relative” as defined in law of less than 5% of the stock or other ownership interest in a corporation which is traded on a recognized stock exchange. Recommendations