A state ethics measure that would prohibit politicians and public employees from using their official positions for personal gain is hitting a wall of opposition from developers, cities, counties, sheriffs and other governmental organizations.
More than six million Florida voters backed a state constitutional amendment last fall to prohibit officer-holders and public employees from using their government positions to provide themselves, their businesses or families with a “disproportionate benefit.”
The amendment left it to the Florida Ethics Commission – an appointed board – to define what constitutes an improper benefit.
“This (measure) could be the Swiss Army knife of ethics enforcement,” former state Senate President Don Gaetz, a Niceville Republican, wrote in an April column published by the South Florida Sun Sentinel. Gaetz was the one who crafted the ethics amendment when he was a member of the Florida Constitution Revision Commission.
The ethics amendment received the most votes of any constitutional change in 2018. It included a six-year ban on politicians lobbying after they leave office, as well as other restrictions to prevent public officials from working as lobbyists while in office. The Florida Phoenix reported on the other aspects of the amendment in this story.
“It’s a defining moment to go bold or go easy,” Gaetz wrote. “I don’t expect the Ethics Commission will get another chance like this for a very long time.”
From the start, Gaetz (who is the father of U.S. Rep. Matt Gaetz) said the amendment was not “popular with the political class.”
“In fact, power players in both parties pressured me to drop the amendment or, if not, demanded that I carve out exemptions for them. Failing that, they tried to kill it,” Gaetz wrote.
That opposition has now broken out into the open as the Ethics Commission works to come up with the rule on what constitutes an “improper benefit.” The commission delayed a vote on a proposed rule last month, while setting a July 26 workshop to review more public reaction.
Among the loudest critics are the state’s influential developers and “special development districts,” which developers use to raise money to provide roads, drainage, utilities and other services in their developments. A well-known example is The Villages, the sprawling retirement community and GOP stronghold in Central Florida, which has 16 such development districts. The Villages opposes the ethics rule.
The Association of Florida Community Developers and the Florida Association of Special Districts objected to the Ethics Commission’s original proposal, calling it “vague” and arguing it would add to regulatory costs.
“As feared by both critics and proponents of (the ethics amendment), the proposed rule – as written and due to its vague and arbitrary nature – will create uncertainty for public officials and employees and result in a chilling effect, will cause unintended consequences, will substantially increase regulatory and legal costs to interpret and litigate the proposed rule and cases arising therefrom, and will cost Florida taxpayers millions of dollars in increased public infrastructure costs,” the groups said in a joint memorandum.
In an affidavit filed with the developers’ memo, prominent Manatee County developer Pat Neal said the special districts play a key role in planned communities. Early in the process, the district boards, which are considered governmental entities, are populated by representatives of the developer or landowner, he said.
Neal, a former state senator and member of the Ethics Commission, said the ethics rule is “unclear on whether, in the early years of the project when it is under development, developer representatives can vote on matters affecting the developer as the primary landowner.”
If they can’t vote on those issues, Neal said “then special districts will not be a viable option for me to finance public infrastructure for my projects because it will be difficult – if not impossible – to find qualified board supervisors to participate.”
The Florida Sheriffs Association questioned the provision in the original proposal that said public officials could violate the standard if they “knowingly” took action that led to an improper benefit. The sheriffs’ group suggested there should be a “willfulness element” to the standard, such as showing the individual acted “corruptly” in gaining the benefit.
The Florida Association of Counties and the Florida League of Cities cited the rule’s impact on smaller counties and cities.
“The operations of these governments will be disproportionately impacted by the proposed rule because the class of individuals and businesses available to provide services in small cities and counties is naturally smaller and will result in more conflicts with the proposed rule,” the two government associations said in a joint letter.
Most of the critics are asking the Ethics Commission to base the new “disproportionate benefit” standard on Florida’s existing ethics standards and already-settled cases involving improper benefits.
“The proposed rule should endeavor to incorporate existing case law and commission advisory opinion precedent regarding ‘abuse’ of office” under existing state law, the cities and counties said. That standard would “reduce uncertainty as to what conduct is forbidden,” they said.
Ben Wilcox, a research director for Integrity Florida, an independent watchdog group, said he is urging the Ethics Commission to adopt its original rule. He said it’s aligned with what Gaetz and other CRC members wanted when they advanced the ballot measure in 2018.
He said it “doesn’t make sense” that the CRC voted for the new ethics standard only to keep the more lenient existing standards intact.
When he testified in favor of the rule last month, Wilcox said an Ethics Commission member asked him if adopting the rule would prevent “good people” from serving in public offices.
“My answer was no. I’m not concerned about that because I think when true public servants go into public service, they understand they are going to be held to a high ethical standard,” Wilcox said. “And they’re not there to profit personally…. They’re there to serve the public.”