MEETING: PALM BEACH COUNTY ETHICS ORDINANCES DRAFTING COMMITTEE

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1 MEETING: PALM BEACH COUNTY ETHICS ORDINANCES 1. CALL TO ORDER: February 9, 2011, 4:04 p.m., at the Vista Center, 2300 Jog Road, West Palm Beach, Florida. 1.A. ROLL CALL MEMBERS: STAFF: David Baker, Esq., Chair, Alley, Maass, Rogers & Lindsey, P.A. Michael Bornstein, Vice Chair, Town Manager, Town of Lantana; League of Cities Member David Aronberg, Former Senator, Florida Senate Kurt Bressner, City Manager, City of Boynton Beach and League of Cities Member Alan Johnson, Esq., Executive Director, Commission on Ethics Donna Raney, Assistant County Attorney Trela White, Esq., President, Corbett and White, P.A. and League of Cities Member Leonard Berger, Assistant County Attorney Joe Doucette, Chief of Administration, Office of the Inspector General Tammy L. Gray, Information Specialist, Public Affairs Department Brad Merriman, Assistant County Administrator John Wilson, Budget Director, Office of Finance, Management & Budget Barbara Strickland, Recording Clerk, Clerk & Comptroller s Office Catherine Papo, Condensing Clerk, Clerk & Comptroller s Office 2. APPROVAL OF MINUTES FROM JANUARY 19, 2011 MEETING MOTION to approve the minutes. Motion by Kurt Bressner, and seconded by Michael Bornstein. David Baker said that the correction to the spelling of David Aronberg s last name was noted. UPON CALL FOR A VOTE, the motion carried 7-0. ETHICS ORDINANCES 1 FEBRUARY 09, 2011

2 3. PUBLIC COMMENT Mr. Baker read Suzanne Squire s public comment card. (CLERK S NOTE: The Clerk was not given the card.) 4. APPROVAL OF AMENDMENTS TO COMMISSION ON ETHICS ORDINANCE 4.a. Mr. Baker said that the committee would work from the ethics ordinances draft dated January 31, Trela White, Esq., suggested that the following changes be made to Section lines 11 and 12: Delete the text, wide, on line 11 to read, the county lobbyist registration. Delete the text, wide, on line 12 to read, the County post-employment ordinance. Ms. White stated that the ordinances that were not in the charter amendment should be county ordinances. MOTION to approve deleting the text. Motion by Michael Bornstein, and seconded by Trela White. Commission on Ethics (COE) Executive Director Alan Johnson, Esq. said that both ordinances were incorporated by reference into the Code of Ethics (Code). He asked Assistant County Attorney Leonard Berger to provide direction on this item to the committee. ETHICS ORDINANCES 2 FEBRUARY 09, 2011

3 4.a. CONTINUED Leonard Berger, Assistant County Attorney, said that the Charter language referred to COE and not lobbyist registration or post-employment. He said that he believed for this purpose, it was accurate to delete the text as it was done. UPON CALL FOR A VOTE, the motion carried b. Ms. White suggested adding the language, or entities, after the words, All appointing officers, to Section line 38. Ms. White said that the Palm Beach County League of Cities board of directors was an entity and not an officer. MOTION to approve the addition of text. Motion by Alan Johnson, seconded by Michael Bornstein, and carried c. Referring to Section Ms. White suggested the following changes: Delete the text, wide, from line 108 to read, County post-employment Delete the text, wide, from line 109 to read, County Lobbyist Registration... Delete the text, Ord. No , from line 123. MOTION to approve deleting the text. Motion by Michael Bornstein, and seconded by Kurt Bressner. The committee members agreed that they were of the same opinion concerning the deletion of the text, wide, as in 4.A. UPON CALL FOR A VOTE, the motion carried 7-0. ETHICS ORDINANCES 3 FEBRUARY 09, 2011

4 4.d. Mr. Johnson said that he was charged by the committee to separate the filing procedure from the legal sufficiency of complaints in Section a,b,c, (lines ). He said that: Lines 208 through 242 separated the filing of complaints and the legal sufficiency of complaints. Section 2-260(a) line 210 had a change to read, Within 30 day as opposed to, Within five days on line 216 of Sec (b). Mr. Johnson said that when there was a citizen s complaint, before a decision of legal sufficiency was made, generally an additional step was taken to be sure the information was accurate. Ms. White said that for consistency she suggested 10 days be added to both (a) and (b). She said that she agreed with the language otherwise. Mr. Johnson said that 10 days might not be enough time to achieve legal sufficiency of documents and information on a citizen s complaint. He said that 20 days would be adequate for legal sufficiency. Mr. Johnson said that he would amend the draft as follows: Delete the text on line 210 beginning with, Within 30 days, through, respondent, on line 213. Delete text on line 216 beginning with, Within five days through respondent, on line 219. Add an item (3) to Section (a) text to read, Within 20 days after the receipt of a complaint by the commission on ethics, a copy of the complaint and all documents in support thereof shall be sent to the alleged violator, otherwise known as the respondent. MOTION to delete the text in Sec (a) and (b) and add item (c) to amend the draft, and place as an item on a future agenda for discussion. Motion made by Trela White, seconded by Alan Johnson, and carried 7-0. ETHICS ORDINANCES 4 FEBRUARY 09, 2011

5 4.e. Ms. White said that she agreed with Mr. Johnson s version of the changes. Mr. Johnson suggested the following revisions to Section 2.260(c), lines 287 through 299: Delete the word, notify, on line 287 and replacing it with, set the matter for a public hearing. Delete the text from line 288 through 295 ending at, notification required by this subsection. Delete the text on 295 and 296 begin at, may on its own motion require a public hearing. The text on 295 and 296 would read, The Commission on Ethics may conduct such further investigation as it deems necessary, and may Delete the word, ninety, on line 298 and add 120. Delete 90 on line 299. MOTION to delete and add the text selections. Motion by Michael Bornstein, seconded by Trela White, and carried f. Mr. Johnson said that the added text reflected that investigations were ongoing; however, as the investigation continued the documentation should be turned over to the respondent. He said that the language change to Section 2.260(d), lines was as follows: On line 305 after, the complaint at issue, add the text, Subsequent to the filing of a complaint and notice to the respondent, the Commission on Ethics has an ongoing duty to disclose to the respondent any and all additional documents, statements of witnesses and other evidence, not otherwise subject by statute to nondisclosure, obtained by the commission pursuant to the ongoing investigation of a complaint. ETHICS ORDINANCES 5 FEBRUARY 09, 2011

6 4.f. CONTINUED MOTION to approve adding the text. Motion by Kurt Bressner, seconded by Alan Johnson, and carried 7-0. Mr. Johnson said that the modification to section (f) expanded the public records exemptions to include complaints and investigations. MOTION to approve the modification to Section (f) of the draft. Motion by Kurt Bressner, seconded by Trela White, and carried 7-0. MOTION to adopt the Commission on Ethics ordinance as it had been edited and drafted by the Ethics Ordinances Drafting Committee. Motion by Alan Johnson, seconded by Kurt Bressner, and carried 7-0. Mr. Baker said that items 4.g., 4.h. and 4.i. were addressed at a previous meeting. 5. DAVE HARDEN S COMMENTS (Attached in reference to Code of Ethics) Mr. Baker said that the committee would review Mr. Harden s comments on the Code of Ethics (Code) dated January 18, 2011, that were provided in an to Ms. White, Mr. Bressner, Mr. Bornstein and other non-committee members. Mr. Johnson said that Mr. Harden s comments were well taken and that three items were for discussion. Regarding 1) Section 2-442, Outside Employer or Business, on line 56, add the word, federal, to the list of employers federal, county, state. MOTION to approve adding the text. Motion by Michael Bornstein, seconded by Donna Raney, and carried 7-0. Regarding 2) Section 2-443(d) Affirmative vote of five members, Mr. Baker suggested that Mr. Berger confer with Mr. Johnson regarding a language change to include a supermajority plus one vote. ETHICS ORDINANCES 6 FEBRUARY 09, 2011

7 5. CONTINUED MOTION to direct Leonard Berger, with the assistance of Alan Johnson, to draft the language to arrive at a supermajority plus one vote. Motion by Michael Bornstein, seconded by Trela White, carried 7-0. Regarding 3) Section 2-443(d)(2): Mr. Berger said that item 3 of Mr. Harden s had been previously addressed. 6. DISCUSSION/APPROVAL OF AMENDMENTS TO CODE OF ETHICS ORDINANCE SECTION Mr. Baker said that the COE recommended that the text in lines 98 through 103 be inserted in Section 2-443(b). MOTION to approve the recommendation by the Commission on Ethics to insert the text into the Code of Ethics. Motion by Kurt Bressner, seconded by Michael Bornstein, and carried DISCUSSION OF DRAFT ORDINANCES 7.a. Code of Ethics Mr. Baker said that he anticipated that there would be more comments for the Code. He said that no final conclusion of the Code would be made at this time, and he asked for discussion from the committee. Alan Johnson said that a recommendation from the COE was needed concerning section 2-444, Gifts, regarding: 1) 2.444(a)(1), language on misuse of office where the recipient knows, or should know with the exercise of reasonable care, when more than $100 from a lobbyist, principal or employer of a lobbyist was offered. 2) 2-444(b)(2), should the vendor who was a lobbyist, principal, or employer of a lobbyist, not give a gift of more than $100 to a public official or an employee. ETHICS ORDINANCES 7 FEBRUARY 09, 2011

8 Mr. Johnson said that the COE believed that there should be some accountability on the part of a lobbyist, principal, employer of a lobbyist. He suggested that the committee further consider this item, and he said that it expanded the reach of the gift law violations. Mr. Baker asked for comment from the committee regarding 2-444(a)(1). Assistant County Attorney Donna Raney asked whether the language was from the State ethics law, and whether any cases defined reasonable care. Mr. Johnson said that there was language in COE line 80, which stated, in a manner in which he or she knows or should know with the exercise of reasonable care will result in a financial benefit not shared. He said that a common-sense interpretation of reasonable care should be used by individuals. Mr. Baker said that: He did not believe that reasonable care was the right standard. He believed that reasonable diligence was the right standard. In this instance, the issue was whether the individual should investigate. Diligence was the measure of the investigation, while care was not. Ms. Raney said that the interpretation of the gift, whether it was intended to influence, or just receipt of the gift, was not the issue. Mr. Johnson said that the issue was that it was a prohibited activity. Mr. Johnson said that he was concerned that the use of the word, diligence, took on a meaning of research, rather than the use, of reasonable care. MOTION to add the language as proposed for 2.444(a)(1) of the recommendation by the Commission of Ethics into the Code of Ethics. Motion by Alan Johnson, and seconded by David Aronberg. Michael Bornstein, Vice Chair, said that he would like to have had more time to consider the language, as to reasonable care. UPON CALL FOR A VOTE, the motion carried 7-0. ETHICS ORDINANCES 8 FEBRUARY 09, 2011

9 Regarding 2-444(a)(2) and 2-444(b)(2), the issue of holding the donor equally responsible under the proposed prohibition Mr. Baker said that he believed that the issue went beyond the scope of the ordinances drafting committee. He asked for member s comments. Mr. Johnson said that he agreed with Mr. Baker s comments and he suggested that the committee table the item for further consideration. Kurt Bressner said that he also agreed with Mr. Baker. He said that the committee could report this to the COE, and suggest that the COE in turn, refer the item directly to the Board of County Commissioners (board) once the ordinance was completed. MOTION to table the language discussion on (a)(2) and (b)(2) of the Code of Ethics. Motion by Alan Johnson. MOTION DIED FOR LACK OF A SECOND. MOTION that the committee not consider the revision in part two 2-444(a)(2) and (b)(2) with the recommendation to the Code of Ethics, that the Commission on Ethics direct the item to the Board of County Commissioners. Motion by Kurt Bressner, and seconded by Michael Bornstein. Mr. Johnson said that according to the referendum, any change to the Code would reconvene a drafting committee by the board. Ms. Raney said that she agreed with Mr. Johnson s interpretation, and that she did not believe that the scope of the committee s work was that limited. MOTION WITHDRAWN. MOTION to table the discussion on the Commission on Ethic s recommendation for 2-444(a)(2) and (b)(2). Motion by Trela White, seconded by Michael Bornstein, and carried 7-0. Mr. Johnson said that the language change in 2.443(a) was more restrictive than State law. He said that contained a corrupt intent component and part one contained certain defined activity. This would be more stringent since a certain type of financial misuse that did require corrupt intent had been added, he said. ETHICS ORDINANCES 9 FEBRUARY 09, 2011

10 7.a. CONTINUED Mr. Berger said that the language was consistent with the minimal requirements of State law and that it added preexisting prohibited conduct. Ms. White said that the language change could stand and could be discussed further at a future meeting with other definitions on this Code. 3) 2-444(c), Officials and employees required to report gifts. Mr. Johnson said that the Code was inconsistent with State law for reporting individuals. State law did not allow any solicitation, he said. Leonard Berger said that the Code had to be as stringent as State law and he continued by saying that: The language would be inserted between lines 210 and 211 and become Sec (c). Sec (c) would become (d), (d) would become (e). Mr. Johnson said that he could redraft Sec (c) and amend the language to delete the word, solicit, from 2-444(a) and (b) and recraft the language in (c) to read, prohibited to solicit any gift from a lobbyist. Mr. Baker said that the committee would ask staff to draft the language as stated by Mr. Johnson for Sec (c) and place the draft as an item on an agenda in early March b. 7.c. Lobbyist Registration Not discussed Post Employment Not discussed 8. STAFF COMMENTS None 9. COMMITTEE COMMENTS Mr. Johnson suggested that the members submit proposals prior to the next meeting. ETHICS ORDINANCES 10 FEBRUARY 09, 2011

11 10. NEXT MEETING DATE/LOCATION (WEDNESDAY, MARCH 2, 2011, 1:00 P.M. GOVERNMENTAL CENTER, McEADDY CONFERENCE ROOM, 12 TH FLOOR) Mr. Baker said that the next meeting of the Ethics Ordinances Drafting Committee would be held on March 2, 2011, at 1:00 p.m. at the Governmental Center, in the McEaddy Conference Room, 12 th Floor. He said that Public Affairs Department Information Specialist Tammy Gray would send a new meetings schedule to committee members. 11. ADJOURNMENT MOTION to adjourn the meeting. Motion by Michael Bornstein, seconded by Alan Johnson, and carried 7-0. At 5:30 p.m., the chair declared the meeting adjourned. APPROVED: Chair/Vice Chair ETHICS ORDINANCES 11 FEBRUARY 09, 2011