Ethics Overview Applicability

1. Overview of Ethics and Sunshine Laws New Trustee Orientation August 22, 2012Office of General Counsel

2. Ethics Overview Applicability As public officers, the members of the University of West Florida Board of Trustees are subject to the Code of Ethics for Public Officers and employees, Chapter 112 (Part III), Florida Statutes. Members are also governed by the Board’s Conflicts Policy (See Attachment 1).

3. Ethics Overview Requirements State of Florida legal/ethical requirements generally consist of two types of provisions: Those prohibiting certain actions or conduct; Those requiring that disclosures be made.

4. Ethics Overview Considerations Ethical considerations include: Solicitation and Acceptance of Gifts Unauthorized Compensation Misuse of Public Position Disclosure or Use of Certain Information Solicitation or Acceptance of Honoraria Discrimination, including Sexual Harassment Personal Use of University Resources Personal Use of University IP Nepotism Doing Business With One’s Agency Conflicting Employment/Conflict of Interest Conflicting Contractual Relationships Contractual Services: Prohibited Employment

5. Ethics Overview Personal Gifts/Benefits ALL public officers, employees, local government attorneys and candidates are prohibited from soliciting or accepting anything of value--including a gift, loan, reward, services, discounts, promise of future employment, or favor--based upon any understanding that their votes, official actions, or judgments would be influenced thereby. Sections 112.313(2), 112.313(3) and 112.313(4), Florida Statutes

6. Ethics Overview Personal Gifts • Remember: • No solicitation of gifts if you are a “reporting individual” (a “RIPE”) (You are one.) (BTW, don’t forget to report!) • RIPEs may not directly or indirectly accept a gift valued at more than $100 from lobbyists who lobby their agencies, from the partners, firms, employers, or principals of such lobbyists, or from political committees or committees of continuous existence. Although a RIPE may accept a gift with a value that does not exceed $100 from someone in the prohibited group, the lobbyist/donor must report the gift on a quarterly disclosure statement. The donor must notify the RIPE at the time a reportable gift (a gift valued at over $25 but not exceeding $100) is given that it will be. • (For this law, a “lobbyist” means any person who, for compensation, seeks or sought during the preceding 12 months, to influence the governmental decision-making of a reporting individual or procurement employee or his or her agency or seeks, or sought during the preceding 12 months, to encourage the passage, defeat, or modification of any proposal or recommendation by the reporting individual or procurement employee or his or her agency.)

7. Ethics Overview Personal Gifts • Executive Branch Lobbyists, Section 112.3215 • Effective January 1, 2006, there were modifications to the lobbying laws in Florida which affect State-level reporting individuals. • ONLY reporting individuals in the Executive Branch are subject to the expenditure acceptance prohibitions in this statute. (This is YOU.) • Notwithstanding the gifts law and honoraria law, which contemplate limitation of value and reporting, Executive Branch reporting individuals are prohibited from accepting, and Executive Branch lobbyists and their principals are prohibited from making, any direct or indirect “expenditure”. • An “expenditure” is defined as a payment, distribution, loan, advance, reimbursement, deposit, or anything of value made by a lobbyist or principal for the purpose of lobbying. If you take it, you must provide payment for the "thing of value" prior to or at the time the gift is given (when the expenditure is made, not within ninety days). • The definition of "lobbyist" for purposes of this section differs from the gifts law definition. A lobbyist is considered anyone who is registered (or should be registered) to lobby the Executive Branch, regardless of whether or not that lobbyist actually lobbies your agency. For example, a registered lobbyist who frequently appears before the Department of Transportation would still be prohibited from buying lunch for a reporting individual who works for the Department of Revenue or the University of West Florida.

8. Ethics Overview Personal Gifts • Honoraria • The Ethics Laws prohibit RIPEs from soliciting an honorarium which is related to their public office or duties. The law also prohibits a RIPE from knowingly accepting an honorarium from a lobbyist who has lobbied his or her agency within the past 12 months, or from a political committee or a committee of continuous existence. • Although RIPE's cannot accept honoraria from those in this prohibited group, they may accept the payment of actual and reasonable transportation, lodging, food and beverage expenses, and registration fees related to an honorarium event for themselves and their spouses. • The person or entity providing these expenses must provide a statement listing the name and address of the donor, a description of the expenses, and the total value of the expenses given. This statement should be attached to the annual disclosure form the RIPE is required to file if he or she receives such payment of expenses related to an honorarium event.

9. Ethics Overview Personal Gifts • Danger, Danger! • A “lobbyist” is defined as a person who, for compensation, seeks, or sought during the preceding twelve months, to influence the governmental decision-making of a reporting individual or procurement employee or his or her agency, or to encourage the passage, defeat, or modification of any proposal or recommendation by the reporting individual or procurement employee or his or her agency. “Persons” include individuals and entities, including corporations and groups. • Rules of the Commission on Ethics presume that certain gifts are “expenditures” within the meaning of Section 112.3215, including, but not limited to, transportation in personally owned aircraft. In other words, if you are called to question, you will have the burden of proving that the gift is not made for the purpose of lobbying. • Generally, a thing of value is a gift if you don’t pay for it within ninety days of receipt unless it is payment from your organization related to your service for the organization. There are exceptions, such as gifts from close relatives or from direct service organizations. When in doubt, get back to them. • For most purposes of the gift laws, all vendors of the University during the preceding twelve months are lobbyists. (I am only the messenger.)

10. Ethics Overview Doing Business A university officer cannot: • purchase, rent, or lease any realty, goods or services for his or her agency from a business of which the officer (or their spouse or children) is an officer, partner, director, proprietor, or owner of a “material interest” (more than 5% of the total assets or capital stock of the business). • hold a contractual or employment relationship with any entity that is regulated by or is doing business with the University, • have or hold any employment or contractual relationship that • i. would create a continuing or frequently recurring conflict between his or her private interests and the performance of her or his University duties, or • ii. would impede the full and faithful discharge of her or his University duties. § 112.313(7), Florida Statutes.

11. Ethics Overview Doing Business • You can ask for help • The Commission on Ethics receives more requests for opinions, both formal and informal, on these sections than on any others. Since the interpretation of these laws hinges on the specific facts surrounding the relationships and since there are exemptions to the prohibitions in these laws, public officers and employees should seek advice from their agency attorneys or from the Ethics Commission when they have a question about whether a conflict exists between their private interests and public duties. They are uniformly helpful and courteous. • The University Office of General Counsel is also available to assist.

12. Ethics Overview Doing Business • Exemptions • The above prohibitions may not apply: • When the business is awarded through the bid process and the official, spouse, or child has not attempted to persuade University personnel to enter into the contract and certain procedural safeguards are followed. • If the purchase or sale is for legal advertising, utilities service, or for passage on a common carrier. • When an emergency purchase must be made to protect the public health, safety, or welfare and proper certifications are filed. • When the business entity is the sole source and there is full disclosure (Ethics Commission FORM 4A must be filed). • When the aggregate of the transactions does not exceed $500 in a calendar year. • When the transaction involves sponsored research or intellectual property provided certain safeguards are met, including specific approval by University President and Board of Trustees Chair. • When the University officer or employee purchases from a business entity which is doing business with his or her agency upon the same terms available to the general public. • There is a “one-off” concept in the enforcement of the prohibition against doing business with entities doing business with the University.

13. Ethics Overview Employees Holding Office • No person can be an employee of a state agency, county, municipality, special taxing district, or other political subdivision of the state and simultaneously hold office as a member of the governing board, council, commission, or authority which is his or her employer. Section 112.313(10), Florida Statutes. • The Chair of the Faculty Senate holds office on the Board by virtue of a constitutional provision that trumps the statute.

14. Ethics Overview Dual Office Holding • Article II Section 5 of the Florida Constitution provides that no person holding an office of emolument under any foreign government, civil office of honor or of emolument under the United States or any other state. Generally, no person may hold at the same time more than one office under the government of the state and the counties and municipalities therein. State law. There are exceptions for notaries, constitutional revision commissions, constitutional conventions, bodies with advisory powers, and officers of special districts. • The Florida Attorney General publishes an excellent outline on Dual Office Holding http://myfloridalegal.com/pages.nsf/Main/92e25864d475966f85256cc6007b96cb

15. Ethics Overview Misuse of Public Position • Public officers, public employees, and local government attorneys may not corruptly use or attempt to use their official positions to secure a special privilege, benefit or exemption for themselves or someone else. The word “corruptly” is defined to mean “done with a wrongful intent and for the purpose of obtaining, or compensating, or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties.” Section 112.312(9), Florida Statutes. • .

16. Ethics Overview Misuse of Information • Current and former public officers, public employees, and local government attorneys are prohibited from disclosing or using information not available to members of the general public and gained by reason of their official positions, except for information relating exclusively to governmental practices, for their personal gain or benefit or for the personal gain or benefit of any other person or business entity. Section 112.313(8), Florida Statutes.

17. Ethics Overview Lobbying After Office • A member of the Legislature or a statewide elected or appointed official is prohibited from representing another person or entity for compensation before the government body or agency of which he or she was an officer or member for two years following vacation of office. Art. II, Sec. 8(e),Florida Constitution and Section 112.313(9), Florida Statutes.

18. Ethics Overview Voting Conflicts • A voting conflict arises when an official is called upon to vote on any measure which would inure to the officer’s special private gain or loss; which the officer knows would inure to the special private gain or loss of any principal by whom the officer is retained (other than a governmental agency) or to the parent organization or subsidiary of a corporate principal by which the officer is retained; or which the officer knows would inure to the special private gain or loss of a relative (father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, or daughter-in-law) or business associate of the public officer. Section 112.3143, Florida Statutes. • No state public officer is prohibited from voting on any matter. However, any state officer who votes on a measure that presents a voting conflict shall, 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 same in the minutes. Section 112.3143(2) , Florida Statutes.

19. Ethics Overview Voting Conflicts • State appointed public officers should not participate in any matter in which they have a voting conflict without first disclosing the nature of their interest in the matter. The definition of “participate” in this subsection is “any attempt to influence the decision by oral or written communication, whether made by the officer or at the officer’s direction.” If you have a conflict, and want to abstain from participation, you should abstain and follow up with the written form within 15 days. If you do intend to participate, you must make disclosure before you participate and follow up with the written form within 15 days. • In the event that disclosure has not been made prior to the meeting or that any conflict is unknown prior to the meeting, the disclosure should be made orally at the meeting when it becomes known that a conflict exists. A written memorandum disclosing the nature of the conflict then should be filed within 15 days after the oral disclosure with the person responsible for recording the minutes of the meeting and be incorporated into the minutes of the meeting at which the oral disclosure was made. • Section 112.3143(4), Florida Statutes.

20. Ethics Overview Financial Disclosure • All persons who fall within the categories of “state officers,” “local officers,” “specified state employees,” as well as candidates for elective local office, are required to file the “limited” financial disclosure statement (Form 1 – Statement of Financial Interests). (This includes you.) • Initially, each local officer, state officer, and specified state employee must file within 30 days of the date of his or her appointment or the beginning of employment. Appointees who must be confirmed by the Senate must file prior to confirmation, even if that is less than 30 days from the date of their appointment. Thereafter, local officers, state officers, and specified state employees are required to file by July 1st following each calendar year in which they hold their positions. If not received by September 1, there is an automatic fine of $25 per day after that, up to $1,500. (The fine is sometimes waived in the event of inadvertent non-filing.) • Section 112.3145, Florida Statutes.

21. Ethics Overview Other Disclosures • Other required disclosures, if applicable, include: • Gift reports (Section 112.3148(8), Florida Statues); • Annual Disclosure of Gifts from Governmental Entities and Direct Support Organizations (Section 112.3148(6)(d), Florida Statutes); • Annual Disclosure of Honorarium-Event Related Expenses (Section 112.3149, Florida Statutes).

22. Ethics Overview Resources • Visit the Commission on Ethics web site,www.ethics.state.fl.us, for additional information on ethics laws, rules, and opinions and to view and print required forms. • See www.myfloridalegal.com for additional information on the Sunshine Laws, including FAQ's, searches, views, and downloads of the Sunshine Manual and related materials, and on Dual Office Holding considerations. • Much of this material is taken from the course offered by the Florida Institute of Government entitled Florida’s Code of Ethics, Sunshine Law and Public Records Act. Please Advise the Office of the President or General Counsel if you would like to register for the full course.

23. Sunshine Laws Overview The Sunshine Laws • F.S. Chapter 286, the “Open Meetings Law,” often referred to as the “Sunshine Law” protects the public from “closed door” decision making and provides a right of access to governmental meetings. • F.S. Chapter 119, the “Public Records Law,” creates a right of access to records made or received in connection with official business of a public body.

24. Sunshine Laws Overview Open Meetings • Chapter 286, Florida Statutes, applies to all meetings of any board or commission of any state agency with decision making authority. It requires: • All meetings of the Board must be open meetings (public must be given a reasonable opportunity to attend: considerations of accessibility, distance, chilling effect of meetings at meals). • Reasonable notice of Board meetings (generally, seven days published notice is Board practice). • Minutes of meetings must be promptly recorded and made available for inspection

25. Sunshine Laws Overview Meetings • Includes any discussions or deliberations, formal or casual, between two or more Board members about a matter on which the Board might foreseeably take action. • Includes workshops, telephone conversations, e-mail communications, social and sports events, seeing each other at the grocery store. • Generally, staff is not subject to Open Meetings law, but a staff member may not function as a go-between. In other words, you may meet individually with staff, but these meetings may not substitute for public meetings of the Board. Staff should not be used to carry information among Board members.

26. Sunshine Laws Overview Written Reports The use of a written report by one Board member to inform other members of a subject which will be discussed at a public meeting is not a violation of the Sunshine Law if prior to the meeting, there is no interaction related to the report among the members. In such cases, the report, which is subject to disclosure under the Public Records Act, is not being used as a substitute for action at a public meeting as there is no response from or interaction among the commissioners prior to the meeting. Florida Institute of Government, Florida’s Code of Ethics, Sunshine Law and Public Records Act

27. Sunshine Laws Overview Blogging Board members may conduct informal discussions and workshops over the Internet, provided that proper notice is given, and interactive access by the public is provided. However, the use of an electronic bulletin board to discuss matters over an extended period of days or weeks, which does not permit the public to participate online, violates the Sunshine Law by circumventing the notice and access provisions of that law. In addition, for meetings where a quorum is necessary for action to be taken, physical presence of the members making up the quorum would be required in the absence of a statute providing otherwise.

28. Sunshine Laws Overview Exemptions There are a number of exemptions to required disclosures under Chapter 119 (Public Records Law). However, the existence of an exemption under Chapter 119 does not imply an exemption from Chapter 286 (Open Meetings Law). There are exemptions allowing out of the Sunshine meetings with counsel (i.e. collective bargaining negotiations; settlement offers in litigation); however, they are narrow exemptions. Caution is advised.

29. Sunshine Laws Overview Don’t Even Think About It • "Every thought, as well as every affirmative act, of a public official as it relates to and is within the scope of his official duties, is a matter of public concern; and it is the entire decision-making process that the legislature intended to affect by the enactment of the statute before us." Florida Institute of Government, Florida’s Code of Ethics, Sunshine Law and Public Records Act

30. Sunshine Laws Overview Public Meetings - Penalties • Criminal Penalties • Any member of a board or commission or of any state agency or authority of a county, municipal corporation, or political subdivision who knowingly violates the Sunshine Law is guilty of a misdemeanor of the second degree. A person convicted of a second degree misdemeanor may be sentenced to a term of imprisonment not to exceed 60 days and/or fined up to $500. • Conduct which occurs outside the state which constitutes a knowing violation of the Sunshine Law is a second degree misdemeanor. Such violations are prosecuted in the county in which the board or commission normally conducts its official business. • Removal From Office • When a method for removal from office is not otherwise provided by the Constitution or by law, the Governor may suspend an elected or appointed public officer who is indicted or informed against for any misdemeanor arising directly out of his or her official duties. If convicted, the officer may be removed from office by executive order of the Governor. • Noncriminal Infractions • Section 286.011(3)(a), Florida Statutes, imposes noncriminal penalties for violations of the Sunshine Law by providing that any public officer violating the provisions of the Sunshine Law is guilty of a noncriminal infraction, punishable by a fine not exceeding $500. The state attorney may pursue such actions on behalf of the state.

31. Sunshine Laws Overview Public Records • Florida Statutes Chapter 119 defines Public Records as: • all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material regardless of physical form or means of transmission made or received pursuant to law in connection with transaction of official business by the agency. There is also a constitutional right of access to public records established by Article I, Section 24 of the Florida Constitution. • It is content that determines whether a document is a public record, not the media upon which it is recorded.

32. Sunshine Laws Overview Public Records Exemptions • There are a number of exemptions from disclosure under the Public Records law, including, but not limited to: • Employee’s Social Security numbers • Employee’s Medical information • Personnel information prior to 7/1/95 • Academic evaluations of faculty • Disciplinary records while discipline is in process • Student records under FERPA or Section 1002.22, F.S

33. Sunshine Laws Overview Keep It or Pitch It? If the purpose of a document prepared in connection with the official business of a public agency is to perpetuate, communicate, or formalize knowledge, then it is a public record regardless of whether it is in final form or the ultimate product of an agency. If it is a public record, consult retention schedules prior to destruction. Florida Institute of Government, Florida’s Code of Ethics, Sunshine Law and Public Records Act

34. Sunshine Laws Overview Public Records Requests What do you do if you get a Public Records Request? Contact the General Counsel’s office for guidance. We generally respond to these on behalf of the University. Time to respond is “reasonable”- no delays permitted Although only the custodian is charged with the duty to maintain, any person having public records in his or her possession is obliged to disclose them upon request.

35. Sunshine Laws Overview Public Records Penalties Penalties for violations range from fines to incarceration Note that attorney's fees are recoverable against the agency even where access is denied on a good faith but mistaken belief that the documents are exempt from disclosure.

36. Sunshine Laws Overview Resources The Florida Attorney General oversees compliance with the Sunshine Laws. Visit www.myfloridalegal.com for information on the Sunshine Law, including FAQ's, searches, views, and downloads of the Sunshine Manual and related materials. Attorney General Toll Free Number: 1-866-966-7226 Much of this material is taken from the course offered by the Florida Institute of Government entitled Florida’s Code of Ethics, Sunshine Law and Public Records Act. Please Advise General Counsel if you would like to register for the full course.

37. Attachment 1 UBOT Conflicts Policy Text here