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Miami-Dade Commission on Ethics and Public Trust

Miami-Dade Commission on Ethics and Public Trust. NIGP Training. Florida Sunshine Law Florida Public Records Act Miami-Dade Ethics Code. Florida Sunshine Law – “Public Meetings”, Fla. Stats. Sec. 286.011. The Sunshine Law applies to: Any collegial boards/committees;

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Miami-Dade Commission on Ethics and Public Trust

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  1. Miami-Dade Commission on Ethics and Public Trust

  2. NIGP Training Florida Sunshine Law Florida Public Records Act Miami-Dade Ethics Code

  3. Florida Sunshine Law – “Public Meetings”, Fla. Stats. Sec. 286.011 • The Sunshine Law applies to: • Any collegial boards/committees; • any gathering (formal or informal) of 2 or more members of the same board; • staff members – but this depends on the nature of the actions they perform. • any discussion of public business or any matter that will foreseeably come before the board for action. ethics.miamidade.gov Hotline: (786) 314-9560

  4. Sunshine Law & Selection Committees • Sec. 286.0113, Fla. Stats., carves out an exception for selection committees. • May close portions of meeting where (1) vendor makes oral presentations or answers questions or (2) negotiation strategies are discussed by team. • Disallowed in Miami-Dade County because it violates the Cone of Silence. • Municipalities that opted out of the Cone of Silence, may close the meeting in these circumstances. • Municipalities that adopted their own Cone of Silence,need to verify if theirs allows it. ethics.miamidade.gov Hotline: (786) 314-9560

  5. Three basic requirements of the Sunshine Law: • meetings must be open to the public; • the public must receive reasonable notice of meetings; • minutes of the meetings must be taken and open to public inspection. ethics.miamidade.gov Hotline: (786) 314-9560

  6. Types of meetings subject to the Sunshine Law: • gathering of 2 or more members of the same board/committee; • written communications – i.e. when reports are circulated among members for comments and these comments are provided to other members; • telephone conversations; • informal discussions - i.e. workshops; • meetings to discuss personnel matters; • Exemptions: meetings regarding certain confidential material, e.g. investigative meetings, pending litigation. ethics.miamidade.gov Hotline: (786) 314-9560

  7. Notice and other procedural requirements of the Sunshine Law: • Reasonable notice – definition varies but consider including the following: • Notice the time and place of meeting, along with the agenda, if available; • Prominently display the notice in the agency’s office, in a place set aside for that purpose; • Notice emergency meetings at least 24 hours in advance; • Send press releases, make phone calls, and for matters of critical public concern, advertise in local newspapers of general circulation. ethics.miamidade.gov Hotline: (786) 314-9560

  8. Notice and other procedural requirements cont.: • reasonable notice is also required for a rescheduled meeting; • meetings at facilities that discriminate or unreasonably restrict public access are prohibited; • luncheon meetings should be avoided; • out-of-town meetings are generally prohibited, but balancing test may be used; • inspection trips permitted, as long as no discussion related to business of the board; • excluding certain members of the public is not allowed, unless they are unruly and disruptive; • cameras and tape recorders are permitted; • publishing an agenda is not required. ethics.miamidade.gov Hotline: (786) 314-9560

  9. Public’s right to participate in meetings: • The public has an inalienable right to be present and be heard at all deliberations. • The public must be allowed a meaningful opportunity to participate, • Public boards/committees may adopt reasonable rules to: • Limit the amount of time an individual may address the board; • Confine the speaker to agenda items; • Require speakers to register in advance of the meeting. ethics.miamidade.gov Hotline: (786) 314-9560

  10. Voting by Boards/Committees & the Sunshine Law • Use of secret ballots, coded letters, or numbers is prohibited. • Abstaining from voting is not allowed by law, unless the member has or believes he/she has a conflict of interest. • Members may absent themselves prior to a vote being taken, but this is discouraged, particularly if it results in the board losing a quorum. ethics.miamidade.gov Hotline: (786) 314-9560

  11. Minutes & the Sunshine Law • Written minutes must be kept and be open to public inspection. • Minutes need not be verbatim transcripts – a summary or series of brief notes is acceptable as long as all official votes are recorded and members’ preferences are identified for the record. • Audio recordings are not required. ethics.miamidade.gov Hotline: (786) 314-9560

  12. Penalties for noncompliance with the Sunshine Law: • Criminal misdemeanor in the second degree for a knowing violation. • Removal from office. • Non-criminal infractions – fines up to $500. • Reasonably attorney’s fees (against board or individual member), unless board acted on the advice of counsel. • Official actions taken by the board are voided. • Additional injunctive or declaratory relief may be ordered. ethics.miamidade.gov Hotline: (786) 314-9560

  13. Florida’s Public Records ActFreedom of Information, Fla. Stats., Ch. 119 • Florida Constitution provides public with the right to access any public record made or received in connection with the official business of any public body, regardless of the physical form of the record. ethics.miamidade.gov Hotline: (786) 314-9560

  14. Florida Public Records Act –Types of Records • Print materials; • Computer data, e.g. e-mails; • Personnel records (exempt: medical records, social security number and records of certain employees); • Data on wireless or digital devices, e.g. smartphones, tablets, etc. ethics.miamidade.gov Hotline: (786) 314-9560

  15. Florida Public Records Act –“Right of Access” • “Right of Access” means: • Access at any reasonable time, under reasonable conditions, and under the supervision of the custodian of the public record; • “reasonable time” means during regular business hours – government cannot establish arbitrary times for inspection; • “access” includes the right to photocopy as well as examine all public records. ethics.miamidade.gov Hotline: (786) 314-9560

  16. Florida Public Records Act – Other provisions • Records must be open to any person for personal inspection – requester does not need a special interest or reason. • Request need not be made in writing. • Request need not be specific. • Requester cannot require that request be provided in a specific format. • Response must be made within a reasonable period of time – automatic delays impermissible. ethics.miamidade.gov Hotline: (786) 314-9560

  17. Florida Public Records Act – Other provisions cont. • Government cannot refuse to comply because records are not in custodian’s physical possession. • If government claims an exemption, the custodian must state, in writing, the basis for the exemption, including the statutory citation. • If only some information is exempt, the exempt parts should be redacted. • When disposing of or destroying records, government must act in accordance with State records-retention schedule (even if record is exempt). ethics.miamidade.gov Hotline: (786) 314-9560

  18. Fees for public records requests: • No charge is permitted for mere inspection of records. • Fees for copying and additional charges for certified copies are established by State statute. • Special service charges for extensive clerical or IT services are permitted, but they may not be routinely imposed. ethics.miamidade.gov Hotline: (786) 314-9560

  19. Florida Public Records Act –Remedies • A requestor who was denied access may seek relief through court orders (e.g. mandamus, injunctive relief). • A requestor may obtain attorney’s fees related to legal actions taken to obtain documents from government. • Criminal penalties may be imposed on government. • Mootness is not a defense, i.e. government may not claim that the record is no longer relevant. ethics.miamidade.gov Hotline: (786) 314-9560

  20. Miami-Dade Conflict of Interest and Code of Ethics Ordinance, Sec. 2-11.1, M-D County Code ethics.miamidade.gov Hotline: (786) 314-9560

  21. Financial Disclosure (State)(Sec. 112.3145, Fla. Stats.) • Who? • Elected officials (including Mayor) • Manager • Chief administrative employee • County/Municipal attorney • Chief Building Inspector • Water Resources Coordinator • Pollution Control Director • Environmental Control Director • Official with power to grant/deny land development permit • Police Chief • Fire Chief • Clerk • Purchasing agent with authority to make purchases exceeding $20K. ethics.miamidade.gov Hotline: (786) 314-9560

  22. Financial Disclosure (State) Cont. • What? • State Form 1 - www.ethics.state.fl.us • Copy of income tax return. • When? • July 1st of each year. • Where? • County Elections Dept. • If municipal official/employee –municipal clerk’s office. ethics.miamidade.gov Hotline: (786) 314-9560

  23. Financial Disclosure (County) (Sec. 2-11.1(i), M-D County Code) • Who? • County/City Attorney • Assistant County/City Attorney • County/City Manager • Assistant County/City Manager • Special Assistants to County/City Managers • Department Directors • Assistant Department Directors • Employee of police dept. with rank of Captain, Major or Chief • Zoning Inspectors ethics.miamidade.gov Hotline: (786) 314-9560

  24. Financial Disclosure (County) Cont. • What? • County Source of Income Statement – ethics.miamidade.gov • Copy of income tax return. • When? • July 1st of each year. • Where? • County Elections Dept. • If municipal official/employee –municipal clerk’s office. ethics.miamidade.gov Hotline: (786) 314-9560

  25. Transacting business (Sec. 2-11.1(c)(1), M-D County Code) • Elected officials/employees (or their immediate family members) may not contract with the County/City department for which he/she works. • Immediate family of the board member may not do so either. • “Immediate family” is defined as: spouse, domestic partner, parents, stepparents, children and stepchildren. ethics.miamidade.gov Hotline: (786) 314-9560

  26. Gifts (Sec. 2-11.1(e), M-D County Code) • It is unlawful to solicit or demand a gift in exchange for an official duty or public action. • “Gift” is anything of economic value, including: meals, travel, loans, entertainment, hospitality, or a promise of such, without adequate consideration. • Gifts (within a quarterly period) exceeding $100 must be reported. • Difference in market value & discounted price = gift • Department policy may be more restrictive – County Procurement Dept. has NO gift policy. ethics.miamidade.gov Hotline: (786) 314-9560

  27. What is not a gift? • Gifts solicited for official government business (i.e. County sponsored events); • Gifts exchanged between co-workers, relatives and friends; • Political contributions; • Awards for civic or professional achievement; • Informational books/pamphlets; • Gifts solicited by County Commissioners or their staff on behalf of non-profits. ethics.miamidade.gov Hotline: (786) 314-9560

  28. Gift Disclosure (Sec. 2-11.1(e)(4), M-D County Code) • Who? • Elected officials and employees. • What? • Quarterly gift disclosure form –ethics.miamidade.gov • When? • End of the quarter following the quarter in which the gift was made (i.e. Jan-Mar). • Where? • Clerk of the Board of County Commissioners. • If municipal official/employee –municipal clerk’s office. ethics.miamidade.gov Hotline: (786) 314-9560

  29. Gifts (State Law) • Unauthorized Compensation (Sec. 112.313(4), Fla. Stats.) • No public employee may accept any compensation, payment, or thing of value when he knows that it was given to influence an action by the employee. • No spouse of minor child of the employee may accept either. • Standard: whether employee knows or should have known. ethics.miamidade.gov Hotline: (786) 314-9560

  30. Bribery (Sec. 838.015, Fla. Stats.) • 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. • Examples: • Quid pro quo – something offered for something in return • Kick back – something given to employee after the fact • Extortion – threat with intent to coerce person to do something • Grease payments – payment to expedite (i.e. tipping) • 2nd degree felony – punishable by up to 15 years in prison ethics.miamidade.gov Hotline: (786) 314-9560

  31. Outside employment(Sec. 2-11.1(k), M-D County Code) • Before engaging in outside employment, employee must file a “Request for Outside Employment” form with their department, including approval from supervisor. • Once engaged in outside employment, employee must file “Outside Employment Statement” on July 1st of each year with County Elections Dept. (or municipal clerk’s office for municipal employees). ethics.miamidade.gov Hotline: (786) 314-9560

  32. Gifts from Vendors –Accepting travel expenses(Sec. 2-11.1(w), M-D County Code) • No elected officials or employees may accept travel expenses from any County vendor, contractor, service provider, bidder or proposer. • Travel expenses – transportation, lodging, meals, registration fees, incidentals. • Can not accept directly or indirectly. ethics.miamidade.gov Hotline: (786) 314-9560

  33. Conflicting employment (Sec. 2-11.1(j), M-D County Code) • Elected officials and employees can not accept outside employment which would impair his/her independence of judgment in the performance of his/her public duties. ethics.miamidade.gov Hotline: (786) 314-9560

  34. Exploitation of official position (Sec. 2-11.1(g), M-D County Code) • No elected official or County/municipal employee may use or attempt to use their official position to secure special privileges or exemptions for themselves or others. • Examples (from previous complaints): • Video production – Employee used County personnel, resources and equipment to produce a video tape tribute celebrating his parents’ 50th wedding anniversary. Was charged with exploitation of official position and paid a fine and costs. • Stealing time – Employee, who was responsible for PARS, took leave and did not deduct the hours from his bank. Was charged with exploitation of official position, paid a fine and received a letter of reprimand. ethics.miamidade.gov Hotline: (786) 314-9560

  35. Exploitation – Outside Employment • Even when an employee obtains permission to engage in outside employment and files Source of Income Statement yearly, engaging in outside employment mayconsistute an exploitation of official position. • Examples include: • Employee engages in outside employment during County hours. • Employee uses County supplies and/or equipment in the performance of her outside employment. • Employee uses her County position in order to gain the outside employment. • Employee uses information gained as a County employee to aid her outside employer. ethics.miamidade.gov Hotline: (786) 314-9560

  36. Prohibited investments(Sec. 2-11.1(l), M-D County Code) • Elected officials and employees may not have personal investments in any enterprise which will create a substantial conflict between his/her private and public interests. • Includes investments held through immediate family. ethics.miamidade.gov Hotline: (786) 314-9560

  37. Confidential Information(Sec. 2-11.1(h), M-D Count Code) • Elected officials and employees may not: • accept employment or engage in any business or professional activity that they might reasonably expect would induce them to disclose confidential information acquired by reason of their official position; • disclose confidential information obtained through their official position with the County/City; or • use such information, directly or indirectly, for personal gain or benefit. ethics.miamidade.gov Hotline: (786) 314-9560

  38. Appearances(Sec. 2-11.1(m)(1), M-D County Code) • Elected officials and employees, may not: • appear before any County/City board or agency on behalf of 3rd parties with respect to any license, contract, certificate, ruling, decision, opinion, rate schedule, franchise or other benefit. • Receive compensation from 3rd parties seeking a benefit from the County/City. ethics.miamidade.gov Hotline: (786) 314-9560

  39. Action prohibited when financial interests involved(Sec. 2-11.1(n), M-D County Code) • Elected officials and employees shall not participate in any official action directly or indirectly affecting a business in which he/she or any member of his/her immediate family (as previously defined) has a financial interest. ethics.miamidade.gov Hotline: (786) 314-9560

  40. Recommending professional services(Sec. 2-11.1(p), M-D County Code) • Elected official and employees may not recommend the services of any lawyer, architect, public relations firm, or any other person or firm to assist in any transaction involving the County/City or any of its agencies. ethics.miamidade.gov Hotline: (786) 314-9560

  41. Lobbying (Sec. 2-11.1(s), M-D County Code) • “Lobbyist” is defined as anyone seeking to encourage the passage, defeat or modification of: • Any ordinance, resolution, action or decision of the County/City Commission; • Any action, decision or recommendation of any County/City board or committee; • Any action, decision or recommendation of County/City personnel. • Others considered lobbyists are: • Employee whose normal scope of employment includes lobbying activities, • Principals of company (but not required to pay registration fee). ethics.miamidade.gov Hotline: (786) 314-9560

  42. Lobbying Registration in County (Cities may have different requirements.) • Must register and pay annual fee. • Must complete ethics training course within 60 days of registration. • Must file timely expenditure statements (by July 1st of each year unless no expenses incurred). • Must register on behalf of each entity represented but not on each issue. • Cannot accept contingency fees. ethics.miamidade.gov Hotline: (786) 314-9560

  43. Who is not a lobbyist? • Attorneys or other representatives in quasi-judicial proceedings where the law prohibits ex-parte communications; • Expert witnesses; • Employees whose normal scope of employment does not include lobbying activities; • Representatives of nonprofit organizations (must register but fee waived); • Representatives for community based organization applying for a grant; • Individuals appearing in their individual capacity for the purpose of self-representation; • Any public officer, employee or appointee who appears in his/her official capacity. ethics.miamidade.gov Hotline: (786) 314-9560

  44. Two-Year Rule(Sec. 2-11.1(q), M-D County Code) • No elected official or employee may: • lobby any County/municipal officer, departmental personnel/employee • for a period of 2 years after leaving County/municipal employment • In connection with any proceeding, application, bid, contract, claim, controversy, charge or accusation…in which the County is a party or has any interest (direct or indirect). • Section does not prohibit “routine administrative request or application” to a County department. • Exception for those who are employed by non-profit corporation, government entity, or educational institution. ethics.miamidade.gov Hotline: (786) 314-9560

  45. Reverse Two-Year Rule (Sec. 2-11.1(x), M-D County Code) • No employee who in the previous 2 years, • was employed by or held a controlling financial interest in a for-profit business entity, • may perform any County contract-related duties regarding that entity. • “Contract-related duties” – • service as member of selection committee; • approval/recommendation of award of contract; • contract enforcement, oversight or administration; • amendment, extension or termination of contract; • forbearance regarding any contract. ethics.miamidade.gov Hotline: (786) 314-9560

  46. Cone of Silence(Sec. 2-11.1(t), M-D County Code)Applies to Miami-Dade County. Municipalities may opt out, use the County’s or adopt their own. When does Cone of Silence apply? → • If the recommendation is referred back to the Mayor, the Cone is re-imposed until Mayor or equivalent makes a subsequent written recommendation. • If Mayor or equivalent delegated the authority to award, the Cone is generally lifted at the time the award recommendation is issued. Mayor/ Manager/CEO (JMH) makes Recommendation to BCC/PHT RFP, RFQ, Bid advertised ethics.miamidade.gov Hotline: (786) 314-9560

  47. County’s Professional Staff; • Members of selection committee; • Mayor, County Commissioners or their staff Potential vendor/ bidder/lobbyist /consultant Prohibited Oral Communications & & & • County’s Professional Staff; • Members of selection committee Mayor/County Commissioner/ staffs County’s professional staff Members of the selection committee. ethics.miamidade.gov Hotline: (786) 314-9560

  48. Cone of Silence Exceptions • Communications with the County Attorney and his or her staff; • Communications regarding small business and/or minority business programs; • Communications with employees regarding matters of process or procedure; • Duly noticed site visits to determine the competency of bidders; • Communications by vendor, service provider or bidder with employees of the Department of Procurement Management or other department identified in the solicitation document as the issuing department provided that a written record of the communication is logged; Note: Procurement department policy limits such communications to the contracting officer in the department or other individual designated to act in that capacity. • Consultations by employees of the Department of Procurement Management with professional procurement colleagues; ethics.miamidade.gov Hotline: (786) 314-9560

  49. Exceptions Continued • Pre-bid conferences; • Oral presentations before selection committees; • Contract negotiations during any duly noticed public meeting; • Public presentations made to the Board of County Commissioners during any duly noticed public meeting; • Oral briefings between members of the BCC and the Mayor or his designees after the selection committee recommendation provided that the briefings are not intended to influence the recommendation; • Meetings or conversations with personnel at the Miami-Dade Commission on Ethics and Public Trust or the Miami-Dade Office of Inspector General. ethics.miamidade.gov Hotline: (786) 314-9560

  50. Permitted Communications under the Cone of Silence All written communications, unless specifically prohibited by the applicable RFP, RFQ or bid documents. Note: Copy of written communication must be filed with Clerk of the Board. ethics.miamidade.gov Hotline: (786) 314-9560

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