By Matthew F. Carlucci
The Florida Senate recently passed Senate Bill 2, wide-ranging ethics legislation, and a version of that bill has been reviewed by the House Ethics and Elections subcommittee, which likely will issue its own bill soon.
SB 2 contains many recommendations made by the Florida Commission on Ethics. Chief among them are the ability of the commission to accept referrals from various entities and to place liens on the property of persons who don’t pay their financial disclosure fines. My colleagues on the commission and I applaud the inclusion of these important provisions and their commitment to ethics reform. After further review, though, there are some potential unintended consequences contained in the bill, which I hope the House will address.
The definition of “special private gain” in the voting conflicts provision is so narrow that it actually could allow votes that are now prohibited. The proposed financial disclosure provisions would allow officials who file an erroneous disclosure to have a “do over” if a complaint is filed against them — removing any incentive to file the report accurately in the first place. Finally, the blind trust language gives officials protection from the conflict-of-interest laws without requiring them to disclose to the public what assets they put in a blind trust.
These clearly unintentional oversights could result in weaker ethics laws, the opposite of what the Legislature intends. In stating this, I offer only my opinion. Except for its own recommendations, the Commission on Ethics usually does not take a position on legislation, as policymaking is the job of the Legislature.
However, there is one aspect of the bill on which the full commission has taken a position: the provision that says the commission “shall dismiss” any allegation or violation which is “de minimis,” being defined as “unintentional and not material in nature.”
The commission already has discretion to dismiss a complaint at any stage if it finds that proceeding further on the complaint would not serve the public interest. But requiring the commission to dismiss violations that are “unintentional and not material in nature,” as SB 2 states, would mean that in every case the commission would have an additional burden not in current law — to prove that the violation was intentional or material.
Assume that a city official votes on something that will benefit him, in violation of the voting conflicts law. His defense is that he didn’t know it was against the law and that it didn’t matter anyway, because the measure would have passed even without his vote. Under the proposed language, the commission would have to prove that the official was aware of the law or that the violation was so significant that it must be prosecuted.
Defense attorneys would argue that their client’s wrongdoing was “unintentional and not material” at every stage of the proceeding, from the initial response to the complaint to the commission’s final action and then on appeal, creating substantial litigation and expense to the taxpayer, and making it much harder for the commission to do its job.
Speaking for myself, I hope the House will close all the unintended loopholes. Speaking for the commission, I hope the House will at least remove the requirement that the commission dismiss “de minimis” violations, and allow that to remain a matter for the commission’s discretion.
Matthew F. Carlucci is an insurance agent from Jacksonville and a member of the Florida Commission on Ethics.