MINUTES OF ETHICS COMMISSION DATE: April 11, 2008

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Mervyn Palmer
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1 MINUTES OF ETHICS COMMISSION DATE: April 11, 2008 Call to order: A Special Session of the Ethics Commission was held in City Hall-St. James Building, Jacksonville, Florida on April 11, The meeting convened at 11:02 p.m. Attendees: Jay Williams, Chair Mary Alice Phelan Gene Filbert, Vice-chair Kirby Oberdorfer Renee Naughton Bill Wilkens Pat Sher Pat Plumlee (non-voting) (Mary Swart and Braxton Gilliam had excused absences and were out of town.) Carla Miller, Ethics Officer, Christine Lyle, Ethics Coordinator, Jon Phillips, General Counsel s office were also in attendance. The Chair called the meeting to order. The Pledge of Allegiance was recited. The February 25, 2008 meeting minutes were reviewed and a motion was made by Kirby Oberdorfer to approve the minutes of February 25, Motion 2 nd by Gene Filbert and the minutes were approved. The Chair opened discussion on lobbyist registration and the refusal of Mr. Paul Harden to complete his registration to include his clients and issues (as reflected in this letter to the Ethics Office.) The Chair stated that since we passed the updated Ethics laws, this is our first opportunity to measure where we are and there is a need for a discussion regarding options for those who choose not to comply with the Ethics Code. The Chair recognized Carla Miller, Ethics Officer and requested a summary and update of the lobbying registration efforts. Carla handed out an outline of what has been done to date. The lobbying law has been in place for about 20 years. On Jan 1, 2008 a new section of the lobbying ordinance went into effect ( ). (This was passed by City Council in November, 2007). The Ethics Code charges the Ethics Officer to develop policies, strategies, etc. on all ethics related matters. Lobbying in the Code is an ethics related matter. Ms. Miller went to the existing lobbyist registrations and saw that many of the lobbyists were not disclosing their clients and issues and only putting various for an answer. She stated that this was not answering the question and clearly did not provide disclosure to the public. She developed a new registration form (her duty, per the Code). This new registration clearly asked the lobbyist to disclose their clients and issues. The form was reviewed by Council Secretary, Legislative Services, some lobbyists and the Office of General Counsel. After several changes, it was finalized. Then, in January, Cheryl Brown, the City Council Secretary, sent a letter to registered lobbyists advising them of the new law and form. (Lobbying registrations increased from about 17 to 59 as a result of the efforts of the Ethics Office. Ms. Miller screened the forms and noticed a few lobbyists had not filed any information for their clients and issues. Ms. Miller sent another letter to those who had not filed a lobbyist form or an incomplete form in March. She received a few more registrations and then noticed in April that 9 people had still not filed a registration listing their clients and issues. Section 801 b(2) of the code addresses the requirement to disclose clients and

2 purpose of the lobbying efforts. Another letter was sent by Ms. Miller to those 9 lobbyists giving them a deadline of April 7th to comply. Ms. Miller received a letter from Mr. Paul Harden that is self-explanatory. The summary of his letter is that he will not disclose his clients and he will continue to lobby as he has for the past 20 plus years. That is the current status of the lobbyist registration. Ms. Miller advised the Commission that the Ethics Officer position she holds does not by Code include an enforcement mechanism, only to develop policy and strategy. The Chair suggested the Commission be open for discussion regarding their role in providing transparency to the citizens of Jacksonville and to secondly consider what steps the Commission can take to reprimand/and or enforce the Code. The Chair opened discussion. J.W. Wilkens asked Ms. Miller about the other lobbyists who had not filed and their relation if any, to Mr. Harden s office. Ms. Miller offered that 4 of them they are in the same office building as Mr. Harden, but are not in the same law firms. Ms. Miller stated that she had communicated with 2 of the lobbyists and they will be filing updated forms and some of the persons do not appear to be currently lobbying; that is why they may not have bothered to update their forms. Ms. Miller reads the Code section regarding lobbyists as requiring the lobbyists to list their clients retroactively and that can be requested but she decided to start fresh with the new law and new form and start from the date of January 1, That way, there could be lots of notice that the rules were now going to be enforced. The rules were never changed, the requirement that clients and purpose were to be disclosed has existed for 20 plus years. The only reason for lobbyist disclosure is to disclose the clients and the purpose, at the minimum. Miami and Tampa required registration fees as well. Our Code section on what lobbyists disclose is less than what is required by the State of Florida for lobbyists lobbying the Legislature A list of just names of lobbyists is not helpful as to transparency, thus the need for disclosure of a lobbyist s clients and purpose. Pat Sher passed out an outline she prepared regarding this issue. Jon Phillips, General Counsel s office, responded that he understands her position, but the law on lobbying could be more clear. Mr. Phillips added that we have accepted Mr. Harden s current registration in July, 2007 and it expires July 8 th, 2008 and the enforcement mechanism is a Class A offense. Kirby suggested that the lobbying statute is clear as to disclosure. Mr. Phillips said that (d) states disclosing principals is required, but the law only implies that the issues are required to be disclosed under 801(b)1 and 2. The code states that if a material fact in the registration changes concerning a person on whose behalf the lobbyist first registered, an amended registration must be filed. This could be interpreted that if you have an additional person that you are lobbying for, it should be disclosed. There was discussion on substantive changes and the principals of how penal statutes are construed against the drafter. Although the Ethics Officer can do policy and strategy, the Officer has no authority to enforce this lobbying law. Under the circumstances, Mr. Phillips suggests that he would like to get some guidance from the Mayor s office. Mr. Harden s registration automatically expires July 8 th, 2008 and then he has to file a new registration. Mr. Phillips said he doubted that the State Attorney would be eager to prosecute this type of offense (Class A) Mr. Phillips suggests that the Commission may want to consider the Code being cleaned up and to make this go away without a lawsuit that we don t need to have. He suggests a non-confrontational approach or one without litigation and to put us in a position of being able to enforce the rules without having anyone arrested and/or litigation.

3 The Chair states that the Commission s agenda is not to be confrontational and this our first challenge or question on the Code regarding this issue. The question is how do we want to move forward and how much time do we let pass? How do we as a Commission best serve the City of Jacksonville? Mr. Phillips stated that he was referring to Harden s tone that we have already gotten into a confrontational issue. Mr. Wilkens stated that Mr. Harden has drawn a line in the sand and that infers he is not going to budge. Pat Sher offered that 3 months is a generous time for compliance and that giving Mr. Harden more time was not fair to the other 52 that had complied and who had no problems filling out the form. Plumlee stated it is about the spirit as much as the law. Pat Sher attends City Council meetings and she does not think Mr. Harden ever makes it clear who he is representing. Mr. Phillips offered that has gotten a lot of letters from attorneys who drew lines in the sand and then change their minds and why not someone talk to him and ask him if he is sure if he wants to do this. He suggested that the Commission try that approach. Mr. Filbert likes the idea of asking Mr. Harden to come to a Committee meeting and allow him to speak to Commission as a public way to show Mr. Harden s willingness to comply with the code. Mary Alice stated that we need to be working on parallel track to tighten up the lobbying code language. Mr. Phillips agreed that no doubt that it currently requires disclosure of clients and issues but it s not as clear as it should be on disclosure of issues. Mr. Phillips agrees it is implied that issues are required.. Ms. Miller said that the code says for lobbyists to disclose your clients. Lawyers love to discuss this type of thing for hours weeks, years. Long term solution, we can work on improvements in the code. But for now, it is clear that clients and purpose of the lobbying need to be disclosed. What is our short term solution for the registration? The commission is not a judicial hearing; you don t have to be lawyers. What are we going to do on the short term? Mr. Phillips mentioned a lawsuit and we may get one as it is the implication in Mr. Harden s letter, however, think of the 50 lobbyists who have disclosed their clients and it is now online. This is unfair to them. There are short term solutions and long term solutions. Look at the short term and look at last paragraph regarding those guilty of a class A offense. (Anyone who commits, procures or acquiesces in a lobbying offense.) Kirby asked if someone could sue the Commission under (e) for not acting on Mr. Harden s refusal to adequately registering is this acquiescing? Ms. Miller says that under (e), the committer is the person not filing the disclosure, that procuring could be a client saying don t list my name and acquiescing could be a person who goes along with them not disclosing their clients. Pat Sher surmised that those persons are City Council members who are talking to lobbyists who have not filed a complete form and the administration that is aware of it and does not pursue compliance. Mr. Phillips stated there are serious problems with the term acquiescence in criminal court, that it is a catch all provision and does not cure the issues. He believes for an immediate action, Mr. Filbert s suggestion to call Mr. Harden and talk to him is a good one. The Chair stated that it sounds to him like the consensus is that the Commission wants to take a positive step to enforce the ethics code. The real question is how we deal with Mr. Harden s letter. The Chair asked for a motion to take an action today in this regard and to not waste time. Mary Alice suggests that the Commission think about options. Mr. Filbert suggested sending a letter inviting Mr. Harden to a meeting in 2 weeks to explain his reasoning and publicly identifying those who have not complied.

4 Renee says the Commission has the duty to make the City Council completely aware who is not in compliance and how we interpret the code and if they acquiesce that they are guilty of Class A offense, including the top of our administration. That the City s administration needs to be aware and informed of who is not complying and that ethics has to begin at the top. She further stated that it s nice to invite Mr. Harden to a meeting but he has already made it clear how he interprets the code and that he is not going to be disclosing his clients. The Commission should respond that this is what the code says and this is what it means and that we are not dealing with the past, he is, and maybe educate him as to the Code. The Chair stated that the Commission needs to be firm in our response. Mary Alice made a motion to ask General Council, Jon Phillips, and the Ethics Officer to send a letter to Mr. Harden (and any other lobbyist who may respond in a like manner) explaining the Ethics Commission s position that the Code requires disclosure of the clients and the issues. The letter will be under the signature of Ethics Commission Chair as the representative of the Commission. Ms. Miller asked if they (Mr. Phillips and C. Miller) could not agree on the language of the drafted letter, what can they do? It was decided that they could each submit their proposal to the Chair, if any differences in what should be in the letter.) The Chair of the Commission would be able to use the language that in his opinion best reflects the Ethics Commission s view on the matter. The letter should include a deadline and time period and not be open ended as to compliance with disclosure of clients and issues. It is discussed that Jon and Carla will immediately start writing the letter and get to the Chair by next Wednesday. Ms. Naughton suggests a copy to Mayor as well and another letter needs to be drafted for the others who are in non-compliance. A motion was made by Mary Alice Phelan to prepare and send 2 things out: 1. A general statement from the Commission to remind them about the lobbying law; this is to go to the Mayor, City Council and city employees; it should include a brief statement of the law, including the requirement to disclose clients and purpose/issues. That it is clear to the Commission that a reading of the law states that as new clients and purposes of the lobbying occur, that disclosure must be made and the lobbying form updated. Include that the Commission wants to alert them to the penalties and that it is a Class A offense for anyone to procure or acquiesce to non-disclosure. Include the names of the 9 who have not yet disclosed and say various as to their clients. Include that the current registration form was legally prepared by the Ethics Officer who is clearly authorized to do so and was approved by the Ethics Commission and reviewed by General Counsel s office (Dec/Jan). 2. A letter to Mr. Harden specifically telling him that the Commission had a special meeting to discuss his letter of April 7 to the Ethics Office; The ordinance requires disclosure of clients and purpose of the lobbying and to update and amend if new clients and issues are added; 50 out of 59 have complied; we

5 understand you disagree with this and would love to hear from you about this at the 4/28 meeting of the Commission to discuss it; we know it is your position that this law has not been enforced for 20 years but it is now; and we do not want any one lobbyist to get preferential treatment. 3. Note: Send the statement (section 1 above) of the Commission to the other 8 lobbyists who have not complied with disclosure and tell them that if they do start lobbying, we expect a complete registration disclosing their clients and issues. 4. Note: The Commission delegates to the Chair to approve of the wording of the final letter when he gets the draft from Jon and Carla (any differences in their proposed letters can be decided by the Chair who will pick appropriate language.)the letter and notice goes out under the Commission Chair s signature. Letter completed and forwarded to the Chair by Wednesday April 16. Motion 2 nd by Kirby and Mr. Wilkens. motion carried unanimously. Carla Miller stated for training purposes that all members should always comply with the Sunshine Law and to not discuss any Commission issues with other members of the Commission outside of a noticed Ethics meeting. Adjourned 12:18 p.m. Next meeting scheduled: April 28, 2008 Christine Lyle Ethics Commission Coordinator Date of Approval

Lobbyist Registration and Disclosure. Audit, Finance & Legislative Committee City Auditor s Office November 29, 2007

Lobbyist Registration and Disclosure Audit, Finance & Legislative Committee City Auditor s Office November 29, 2007 Referral Background June 2007 1. City Auditor Research 2. AF&LC discussed issues related