What We Meant By “Avoid Even the Appearance of Impropriety”
(Pembroke Pines Commissioner Angelo Castillo served on the county’s charter commission, which considered ethics laws for the county government nine years ago. Here Castillo discusses what type of ethics regulations are needed and why some of the laws being discussed go too far.)
BY ANGELO CASTILLO
Guest Columnist
I had the honor of serving on the Broward County Charter Review Commission from 2000 – 2002.
I will always be thankful to my good friend Commissioner Diana Wasserman Rubin for that appointment. It came at a point in my life when I was ready for this substantive and exciting assignment in public policy.
This was a particularly active Charter Commission with very capable people. Dan Lewis served ably as chair of that commission. In the end, we nearly re-wrote the entire County Charter, proposing a whopping 13 Amendments, all of them adopted by the voters, almost all overwhelmingly.
Our work was a huge success.
I took an interest in all our discussions, but focused my efforts primarily on four items: Converting the position of Commission Chair to Mayor (that’s as good as we were going to get), creating an independent Office of Commission Auditor, creating a Whistleblower Protection provision, and last, strengthening our county ethics rules.
The first three were accomplished. The debate over strengthening ethics rules is still underway.
During our discussions years ago, I recommended the use of a phrase well understood in federal ethics regulations. The phrase is “avoid even the appearance of impropriety.” I believe that should become the standard by which county officials would conduct themselves when facing actual or potential cases of conflicts of interest.
Combating conflicts of interest — that was the only context in which this language was proposed.
The following is based on my best recollection of those discussions.
Basically, in promulgating the new ethics language, what we meant was if you, as a public official, face any situation in which your official involvement would even appear to suggest that your office is being used for personal gain, then your duty is to avoid that situation. This was done to expand the “actual conflicts” prohibition to include appearances of conflict as well. The purpose was to significantly bolster public trust in county government.
After the voters adopted this language, six years went by. The county didn’t do all it might have to confront that requirement and codify their determinations as rules governing official conduct.
There was an obligation to create an Ethics Commission to complete this charter-mandated task. It was predictable that this would occur and that the voters would support that measure.
The resulting Board has been created and is in the process of tackling that duty. They are mindful of higher ethics laws at the State and Federal levels, as well as criminal statutes that have all have a bearing on what official conduct is permissible.
But here’s a list of ethical activities that nobody on the 2000-2002 Charter Commission ever suggested to exclude.
Nobody ever said that elected officials shouldn’t help charities. Indeed, we’ve strayed far from the core of ethics when officials are made to wonder whether they can help charities.
The purpose of ethics is to guide us toward good behavior and away from bad behavior. Yet because concern has been expressed about this issue, an ethics rule may be in order to make plain what behavior is allowed and what is not.
Nobody ever suggested that public officials be prohibited from helping able candidates for office to get elected. This is a First Amendment right that everyone has, including public officials. Ethics should rarely intrude on established rights. Rules might help make that ethical behavior more clearly understood.
Nobody suggested that public officials should be hermits. Ethics rules shouldn’t prevent a public official from going to someone’s house for dinner, or having a cup of coffee with a constituent or business leader. A public official shouldn’t walk the earth in constant fear of persecution.
Simply, we meant don’t use your office for personal gain. If you confront a situation that doesn’t involve personal gain but fails to pass the sniff test, then avoid that situation also.
Secondly, that rules be made to resolve issues and placed in a code of official conduct. It’s amazing how many people seem to have forgotten the context in which those important discussions actually occurred.
Let me offer you a few examples of areas where the Ethics Commission should be focusing their attention.
County Commissioners serve on selection negotiation committees that recommend vendors for county contracts. This is a long standing practice in county procurement.
Nobody elects a county commissioner based on their procurement prowess, yet the involvement of commissioners on procurement boards is not unusual in government practice. Notwithstanding, an appearance of impropriety is created because many of those vendors, seeking county contracts, and the persons that represent them, make campaign contributions to the very commissioners on those committees.
Now, if the County wants to continue having it’s commissioners on selection negotiations committees and yet comply with the charter provision, it must create ethics rules that say this activity is allowed and govern it to the extent necessary. Ethics rules never eliminate an ethical dilemma, ethics rules resolves them.
For example, if an ethics rule says that a particular activity is permitted, then it generally cannot be said to be an ethics violation. Rules may impose certain requirements, such as disclosure or recusal, or if it is deemed to serve a higher best interest, none at all. Those are rulemaking concerns.
However, prohibitions on activities are generally rare in ethics rules, and typically result only when a conclusion is made that the activity presents irreconcilable differences with advancing the public good. This is how proper ethics rules are generally crafted.
Similarly, there’s been some discussion about employment issues affecting county elected officials.
County commissioners are assumed to work part-time in our system of government although some choose to serve full-time. The law allows them to have outside employment and the expectation is that most will. As such, there will be occasional voting conflicts.
The last Charter Board supported the current charter requirement; that commissioners with voting conflicts absent themselves from any discussion on that subject.
This is a strong form of recusal that resolves but can’t eliminate an ethical dilemma. But the rule did not go so far as to say that certain professions were to be prohibited if you want to serve as a county official. There the employment rights and needs of citizens aspiring to office will need to be balanced against the rights of the public to have honest government.
However the point is simple. Ethics rules are supposed to steer us toward more, better behavior and also toward less, bad behavior. We must do that with a level headed sense of perspective. It is in the advancement of that effort that the public trust is bolstered.
Ethics is supposed to be a good thing, not an oppressive thing.
Angelo Castillo is a City Commissioner in Pembroke Pines, a former Broward Charter Review Board member, and a former adjunct professor of business ethics at St. Thomas University
April 28th, 2009 at 12:07 pm
This is the best explanation of ethics I have seen in any of the local media.
It raises some questions to clarify your position. Could a commissioner’s part time job be as a lobbyist? Would it be ethical for the lobbyist to represent a client in, for instance,Pembroke Pines if they never represent anyone at the county level? This has been a persistent problem with commissioners in the past.
April 28th, 2009 at 1:11 pm
Thomas:
Thanks. You’re asking my opinion and so I will offer it mindful that ethics matters can and should generate a great deal of debate as this too is the nature of ethics.
I happen to think professional lobbyists should choose not run for public office because the likelihood of them becoming entangled in ethical or legal problems is relatively high. People will always wonder if they are taking fees for the votes they cast and this has the long-term effect of diminishing public trust, even when it’s not true.
Having said that, I don’t believe that any rule would stand that says lobbyists are barred from running for elected office.
However, jurisdictions could have a rule that says that professional lobbyists who become elected officials can’t be involved in business deals that would come before their elected bodies for decisions. So, say you’re a county commissioner and you’re also a lobbyist that does with clients in Highlands County who have no expectation of ever doing business in Broward. I think that’s a very different situation than if your lobbyist clients are land use applicants in Broward, seeking the approval of your own commission, or construction companies seeking your own county’s contracts.
I personally see those as two very different situations. I do not know for certain if this has been a persistent problem in the past, but it is a problem that can be avoided in the future through effective ethics rule making.
Hope that helps.
Angelo
April 28th, 2009 at 2:00 pm
I think the most important thing is to strictly regulate the contacts between lobbyists and commissioners. The contacts shouldn’t be forbidden, however they should have to document each discussion of business whether inside or outside the commission offices. Commissioners should NOT ask lobbyists for anything. Rodstrom is right about this. If they ask for charity donations and are given them, how can the commissioner then vote on a project without it looking like payback?
April 28th, 2009 at 4:15 pm
About a year ago, I wrote and it was passed (not unanimously) prohibiting any elected officials from county or higher government, that represent Lauderhill or anywhere in Broward, from being a paid Lobbyist in Lauderhill, specifically exempting in their position for the body they are elected to represent.
It has happened, and it was very uncomfortable to try and deny one of our elected officials for Lauderhill when they represented a private client. Still I believe we did the right thing, but I don’t know if any of them held a grudge from it that could effect us in the future.
April 28th, 2009 at 5:51 pm
Lobbyists solicit members of a legislature for the purpose of influencing their vote. Typically, they make informational arguments about a bill or matter and in that way attempt to influence how legislators vote. Many make political contributions because the law permits it. If people want that to stop, they will reform their campaign finance laws.
Lobbyists are not inherently evil. They’re trying to make a living by meeting the needs of their clients. So long as they keep an arms length relationship with an elected official, it’s really not much to worry about assuming the official has a backbone.
Lobbyists do have value. They specialize in bringing forward information and viewpoints on matters that often escape the attention of government staff. By making arguments, they clarify the differences between competitors. All of that information is important for legislators to consider when deciding matters.
Everybody blames lobbyists for the ills in government. It’s become somewhat trendy to blame them. But if you don’t like your government, the problem is not the lobbyists and the answer is not how to govern them. The problem your elected officials and how they govern themselves. Lobbyists can be powerful, but the one thing a lobbyist can never do is cast a vote. Only an elected official can do that.
April 29th, 2009 at 5:48 am
Richard Kaplan and Lauderhill have a great idea. Any public official representing Broward County should be forbidden from being a paid lobbyist at the county commission. The would have to include attorneys who pretend they are not lobbyists, just attorneys, i.e. Steve Geller.
In addition, any county commissioner should be prohibited from lobbying any jurisdiction in the county. Commissioners who represent, for instance, Pompano Beach should not go to Pompano Beach and lobby their city commission.
Either of these don’t pass Angelo’s smell test.
But
Angelo? How are you ever going to be a county commission with an independent, ethical vote when your wife works for a lobbyist? Wouldn’t you have to recuse yourself from every vote involving Judy Stern, who employs your wife?
April 29th, 2009 at 6:44 am
County Resident:
You raise a legitimate question which I am happy to answer in my own context. First, to clarify, I am running for re-election in Pembroke Pines and am not a candidate for the county commission. Second, if I were ever to serve on the county commission, my duty would be to follow the ethics rules that they establish and otherwise apply. Soon they will have some. Third, your assumption that my wife’s part-time job somehow affects how I vote, well, let me put it to you this way. Go look at my voting record and then try to make that argument. I think you’ll find that in my case anyway, that’s a very hard case to make. But hey, by all means, go ahead and look. I invite you.
And that’s exactly how it should be. Public officials unafraid to stand by their voting records.
No one can completely control the world around them. As people, and this obviously includes public officials, you only have control over two things in life — yourself and what you do (your vote). You are either a dutiful, independent thinker with backbone and the courage of your convictions, or you are not. It’s really just that simple and that’s a big part of why ethics is important. I appreciate the question.
Angelo
April 29th, 2009 at 6:58 pm
Second, if I were ever to serve on the county commission, my duty would be ……blah, blah, blah. Sounds like a political speach to me. For someone not running for a county seat, you sure are working hard at getting your name out there. I said it once and I’ll say it again (and again), the only commissioner in Pembroke Pines who should consider running for ANY higher seat in the county is Iris Siple. She is a woman of her word and is always there for her supporters/city.
April 30th, 2009 at 6:26 am
Miami-Dade has an ethics commission which is independent from the county commission and has the power to investigate complaints. Why shouldn’t their be a permanent ethics commission in Broward to investigate ethics violations of all government bodies and report them to the authorities is need be? The members could be residents of the county appointed by the governor, the Legislative Delegation, the League of Cities. What do you think, Angelo and others?
April 30th, 2009 at 7:44 am
Dear Question:
Good question.
The purpose of my article was to publish my best recollection of the ethics discussions that took place during the Charter Commission of 2000 – 2002. I’ve been contacted by a few former members who thanked me for “having the guts” as one put it, to discuss the subject openly. They concurred with my restatement of our discussions as being accurate. I just hope it helps remind folks of our original focus and don’t personally see my doing that as being a particularly courageous thing to do. Anyhow,
The suggestion you make about having a local Ethics Commission was considered during those discussions, but the majority view was that ethics investigations and enforcement should largely remain a State function and that multiple ethics authorities would be problemmatic and costly. Some disagreed. But at the time, a sharp distiction was drawn between the state of ethics in government in Miami Dade County, which had created an independent Ethics Commission, and that of Broward County.
We took lots of testimony on the subject, including Merritt Steirheim, who came before us to testify on that subject among others and ultimately the Charter Commission found his testimony to be very sound and persuasive.
After much consideration, a majority view emerged that what Broward needed was enhance our basic ethics standard as it applied to conflicts of interest(which was done by charter amendment) and to promulgate appropriate local ethics rules which is now in progress.
NOTE: Whenever you work on a committee, a commission or a legislative body, a reasonable goal is to be a utilitarian. That means doing the greatest good possible for the greatest number. It means finding and working within the “zone of possible agreement” known in negotiations jargon as ZOPA. It means being able to compromise. It means that sometimes you may not get all that you want in a measure, but you get a measure that brings you closer to the goal than you were before. Dismissing that approach often means you end up with nothing. We were a committee of 19 very strong minded “A” type personalities, struggling to re-define the organic law of our region, mindful of how weighty a matter that truly was, keeping our sense of excitement alive also also within check and restraint.
Nothing at all got onto that ballot without 13 votes — think of that — it took 13 of 19 votes to get anything done! And yet we basically rewrote the charter. Amazing.
Overall we produced a great product. Could it have been better? Of course. But that was the best that this particular committee, at that particular moment in time, was collectively able to produce. There is always opportunity and hope for others to do better.
Hope this clarifies.
Angelo
March 10th, 2011 at 1:49 pm
I clearly have a view of what things shouldn’t be like! And sure even as a child to just last week, I have seen how from a special interest group to any government office or person, how things are done “OLD SCHOOL!” Time for a change, back too the America Our fore father were thinking of!!!
March 10th, 2011 at 1:51 pm
Back to the America Our fore fathers had in mind!!!!!