Another Unintended Consequence by the Florida Legislature
Editorial by Dwight Floyd and John Reid – March 1, 2024
Imagine this scenario. A lobbyist offers a bribe to an elected official in exchange for a vote. By chance, a member of the local ethics board overhears this discussion of the quid pro quo. You would assume the local ethics board would now promptly investigate this matter. If the Florida Senate gets its way, the ethics board would be powerless to act.
During this Legislative Session, the Senate and House are considering bills that would reform the Florida Commission on Ethics. After several committees heard and passed the Senate’s version of the bill, the legislation went to the Senate floor for final passage. At the eleventh hour, four amendments emerged that extended the bill well beyond its initial scope and weakened the ability of local ethics commissions or boards, such as the Tallahassee Independent Ethics Board, to investigate public corruption. These amendments were never discussed in committee and came as a surprise to all interested parties. The Senate then refused to follow regular order, which requires the bill be amended and heard on two separate days, and instead waived its rules and passed the amended bill on a single day before the public could voice their concerns.
The current Senate bill will make it nearly impossible for local ethics boards to investigate public corruption, even in cases as blatant as the opening example. The bill now prohibits the Florida Commission on Ethics or local ethics boards from self-initiating corruption investigations, instead requiring an individual’s signed, sworn complaint before the ethics board can take any action. The complaint may only be based on “personal knowledge” and may not be based on hearsay, such as an overheard statement, an inspector general’s report, or a news article.
Hearsay statements are out-of-court statements offered in a legal proceeding for the truth of what was asserted. These statements are generally not permissible in Court; however, the Florida Rules of Evidence provide for numerous exceptions where hearsay can be admitted. An admission of wrongdoing is an example of a hearsay statement that can be admitted. A printed record created during the course of business is also generally admissible. In the new Senate bill, hearsay is prohibited, and the legislation does not provide for any exceptions.
The bill also prohibits the ethics office from self-initiating a complaint received from an anonymous source. Our more serious complaints are commonly from insiders who wish to remain anonymous to protect them from retaliation. The Senate bill now requires individuals to put their careers on the line before an ethics office can investigate. The likely outcome of this legislation is that fewer people will come forward and wrongdoers will go unpunished.
A concern of the current system is that an elected official might face a meritless complaint from a political rival. This, of course, is a possibility. State law, however, requires that all complaints be confidential and exempt so that frivolous complaints can be discarded before an elected official is publicly accused. Furthermore, the Tallahassee Independent Ethics Board and most of our counterparts around the state authorize sanctions against anyone who files a complaint in bad faith.
It may not be intentional, but the current Senate bill is incredibly weak on crime. As public corruption and trust in our government continue to be major problems, it is inconceivable why the Senate would take this position. Fortunately, the House has refused to go along with this travesty. Let’s hope it continues to stand its ground and does not include these harmful amendments.
The Florida Ethics Commission and local ethics offices exist to help maintain a democratic society. We, the voters, elect government officials to serve on our behalf. Our system maintains checks and balances and restrictions to ensure government transparency. The ethics offices across the state are essential to the system of checks and balances and public integrity. We should not be hindered from doing our jobs. We can only hope that the Florida House will reject the Senate’s amendments and that the Florida Legislature will stand up to public corruption.
Dwight Floyd is the Executive Director of the Tallahassee Independent Ethics Board and a member of the Council on Government Ethics Laws. He previously served as the Bureau Chief of Training for the Criminal Justice Standards and Training Commission at the Florida Department of Law Enforcement. He may be reached at ethics@talgov.com.
John Reid serves as the Board Counsel for the Tallahassee Independent Ethics Board. He also practices administrative law and represents clients before state agencies. He may be reached at jr@johnreidlaw.com.