BROWARD OFFICE OF THE INSPECTOR GENERAL

BROWARD OFFICE OF THE INSPECTOR GENERAL MEMORANDUM To: From: Honorable Diane Bendekovic, Mayor, City of Plantation and Members, Plantation City Ca sion John W. Scott, Inspector General l./ V5 Date: May 12, 2015 Subject: OIG Revised Closing Memorandum Re: Plantation Officials' Disclosure oflobbying Contacts, Ref. OIG 13-037 The purpose of this memorandum is to inform you that the Broward Office of the Inspector General (OIG) has concluded its investigation into whether officials of the City of Planation (City) violated the lobbying contact disclosure requirements of the Broward Code of Ethics for Elected Officials (Ethics Code). 1 The OIG investigation determined that three of Plantation' s officials did not comply with the letter of the Ethics Code' s requirements to log contacts with lobbyists and their principals; however, in consideration of the novelty of the issues presented and conflicting Code language, we are not commencing enforcement efforts at this time. We will do so in the future, however, given certain circumstances as discussed below. We again recognize that the Ethics Code needs clarification and are taking measures to address the situation, including making these issues known in this closing memorandum and adding a section to our Ethics Handbook: An Internal Guide for Investigations Pursuant to the Broward Code ofethics to communicate our reading of this standard of conduct. The cooperation of all elected officials in this endeavor will be necessary to achieve a truly transparent public process. Code ofethics Rules on Lobbying Activity Contact The Ethics Code's "standards of conduct" apply only to elected officials. One of them is the regulation oflobbying activity. Broward County Code of Ordinances (B.C.C.) Sec. 1-19(c) provides, in part: Standards of Conduct. In addition to the prov1s1ons of Florida Statutes Chapter 112, Part III, Code of Ethics for Public Officers and Employees; 1 The OIG has not issued a report in this matter because we have not determined, pursuant to Section 12.0I(D)(1 )(b) of the Chait er of Broward County, that a report will assist the County or any municipality in preventing similar future misconduct. John W. Scott, Inspector General One North University Drive, Sui te 111 Plantati on, Florida 33324 (954) 357-7873 Fax (9 54) 357-7857 www.browardig.org (954) 357-TIPS

Florida Statutes Chapters 838 and 839; Title 18, Chapter 63 of the United States Code; and Chapter 26, Article V of the Broward County Code of Ordinances, sec. 26-67 et seq., the following Standards of Conduct shall apply to each Elected Official.... (3) Lobbyists.... The Ethics Code's black letter states that when lobbyists and their principals (clients) or employers visit governmental premises for the purpose of lobbying elected officials, they must log their visit to include the lobbyist's name, the entity being represented, and the official with whom the lobbyist, principal or employer intends to meet. B.C.C. Sec. l l 9(c)(3) provides in part: b. To promote full and complete transparency, lobbyists and their principals or employers who intend to meet or otherwise communicate with an Elected Official for the purpose of engaging in lobbying activities, either at the Elected Official's offices or elsewhere on the local government's premises, must legibly complete a contact log listing each Elected Official with whom the lobbyist, principal, or employer meets or intends on meeting or communicating. I. The information stated on the contact log shall include the lobbyist's name; the name of the entity by which the lobbyist is employed; the name of the person or entity for whom or which he or she is lobbying; the name of each Elected Official with whom he or she is meeting or communicating; the date and time of each such meeting; and the specific purpose and subject matter of each such meeting. 2. The contact log shall be completed contemporaneously with the meeting(s) and shall be filed for public inspection. 2 When an elected official meets with a lobbyist, principal or employer outside of his or her government's premises for the purpose of lobbying, it is the official who must complete the log. This information must also be filed and uploaded. B.C.C. Sec. 1-19(c)(3) further states: c. To further promote full and complete transparency, Elected Officials must disclose any and all lobbying activity that knowingly occurs between themselves and individual lobbyists or their principals or employers outside of their governmental offices/premises. This shall include communicating by any form of telephonic or electronic media. 1. The disclosure shall include the lobbyist's name; the name of the entity by which the lobbyist is employed; the name of the person or entity for whom or which he or she is lobbying; the date, time, and location of 2 "Filed for public inspection" means that the form is filed with the clerk and its information is uploaded onto a searchable internet database maintained by the official's municipality. B.C.C. Sec. l-l 9(b)(4). BROWARD OIG RE VISED CLOSING MEMORANDUM REF. OIG 13-037 PAGE 2 OF 10

the meeting; and the specific purpose and subject matter of the meeting. 2. The disclosure shall be made within ten (10) business days of the lobbying activity, but must, in any event, be made prior to any vote on a matter that was the subject of the lobbying activity. 3. The disclosure shall be filed for public inspection. The Code's definition of "'lobbying" or "lobbying activity "' only includes communications between lobbyists and those whom they seek to influence. The definition omits any reference to communications between principals or employers of lobbyists and those whom they seek to influence. 3 See B.C.C. Sec. 1-19(b )(7), which provides: Investigation "Lobbying" or "Lobbying Activities" means a communication, by any means, from a lobbyist to a covered individual regarding any item that will foreseeably be decided by a final decision-making authority, which communication seeks to influence, convince, or persuade the covered individual to support or oppose the item. Lobbying does not include communications: a. Made on the record at a duly-noticed public meeting or hearing; or b. From an attorney to an attorney representing Broward County or any municipality within Broward County regarding a pending or imminent judicial or adversarial administrative proceeding against Broward County or against any municipality within Broward County. In November 2013, the OIG began an inquiry into an allegation that the City of Plantation (City) mayor (the Mayor) and two unidentified members ofthe City's council (the Council) failed to disclose meetings they had with a lobbyist for Westfield, Inc. (Westfield), in violation of the Ethics Code. It was alleged that, at the time of the lobbying activity, Westfield, owner of the Broward Mall (Mall), was proposing an expansion of the Mall that included a Bravo Brio restaurant. Westfield needed Council approval on aspects of the project. The allegation stated that, when the matter came up for a vote at the Council meeting on October 23, 2013, the Mayor and two council members announced from the dais that they had met with representatives of Westfield. The allegation was that the Mayor and two council members (Council Member A and Council Member B) failed to disclose their meetings in violation of the Ethics Code, which requires that lobbying contacts be filed and made available on the elected official's municipality's website. The OIG viewed the City' s video recording of the October 23, 2013, council meeting, which confirmed that the Mayor and two council members stated that, prior to the council meeting, they met with a Westfield representative regarding the Mall expansion project. The Mayor 3 The definition of" lobbyist" excludes " [a]n individual who communicates on his or her own behalf...." B.C.C. Sec. I - l 9(b )(8)b. BROWARD OIG RE VISED CLOS ING M EMORAN DUM REF. O!G 13-037 PAGE 3 OF 10

noted that if she was required to vote on the matter, her vote would not be influenced by her meeting with the Westfield representative. 4 The two council members then also stated that their vote would not be affected by their meetings. 5 We accessed and inspected the internal and external visitor and lobbyist logs from the City's website, which reflected a December 13, 2012, meeting between a lobbyist, Westfield employee, and the Mayor, and an erroneously dated October 31, 2013, meeting at city hall between a lobbyist and a Council member. 6 We conducted interviews and reviewed City documents, including records of written, telephone, and electronic media communications between City officials or employees and Westfield or Bravo Brio representatives. Our investigation uncovered the following: December 13, 2012 Contact According to the City's lobbying contact database, an attorney retained by Westfield who registered as a lobbyist with the City (Lobbyist A) met with the Mayor at city hall. The Development Director for Westfield (the Development Director) 7 informed us that she was involved in this contact, as were a second attorney retained by Westfield who was a City-registered lobbyist (Lobbyist B), Westfield's Senior Vice President for Development (the Sr. VP for Development), its Senior Vice President for Construction (the Sr. VP for Construction), and another Westfield attorney (Westfield Attorney A). 8 The Development Director first informed us that this was a meeting at city hall but later claimed that it was a telephone conference. When we reviewed the Mayor's calendar, we observed a scheduled meeting on this date between the Mayor, the Development Director, and Lobbyist B. Lobbyist A logged this contact as a visit between the mayor, him, and "other representatives of Westfield, LLC" at city hall, and the contact was made available for online inspection as required by the Ethics Code. 9 4 The City's mayor "shall have no vote on any resolution or ordinance except in case there is an absence or disability of one councilman and a tie vote results among the remaining four (4) councilmen, but he shall have the power to veto any ordinance or resolution of the city council in which event such resolution or ordinance shall not become effective until passed over his veto by a four-fifths vote of the city council." Plantation City Charter Sec. 14. 5 The elected officials' statements that the referenced meetings would not affect their votes were apparently made in an effort to assuage any concerns about ex parte contact in a quasi-judicial matter. See Plantation City Code Sec. l l 5(c)(3). 6 The OIG investigation determined that the meeting actually took place on October 23, 2013, as discussed below. 7 The Development Director stated that neither was she a lobbyist nor was she employed for the purpose of persuading or influencing government officials. She also said that she requested meetings with the City's elected officials to address staff concerns about the Mall expansion project plans and stated that she frequently meets with elected officials and staff members in other cities to discuss pending issues on expansion projects for Westfield. 8 While they were then registered with the City as lobbyists and seemed to us to be "lobbyists" and to be engaged in " lobbying activities" as defined in the Ethics Code, both the registered lobbyists for Westfield told OIG Special Agents that they were not lobbyists, saying that they were engaged by Westfield as land use attorneys. Lobbyist A acknowledged that he could see how his activities could be seen as lobbying. See B.C.C. Sec. l-19(b)(7) and (8). 9 The City's visitor log requires completion of" Principal/Employer" separate from "Client," which confuses the individual attempting to complete the form. The principal is whoever is paying the lobbyist or his firm for the representation. This could be either (I) the lobbyist's or his firm ' s client or (2) ifthe lobbying is being done on BRO WARD O IG REV ISED CLOS I IG MEMORANDUM REF. OIG 13-037 PAGE 4 OF 10

January 7, 2013 Contact According to the Mayor's calendar, the Development Director organized a phone conference between the Mayor, the City Attorney, Westfield's General Counsel, Westfield Attorney A, Lobbyist A, and Lobbyist B. The Mayor recalled that it included two registered lobbyists for Westfield. The Mayor told the OIG that it was her recollection that this was not a teleconference meeting, but rather was held in the City's conference room. She also vaguely recalled the Westfield Lobbyist speaking at the meeting, but could not recall if he was physically present or on the phone. Lobbyist A said that he could not recall whether he participated. This contact was not disclosed. The Mayor told OIG Special Agents that, even though she was aware that both Lobbyist A and Lobbyist B were registered as lobbyists, because the contact occurred at city hall, it was not her responsibility to record the meeting. July 31, 2013 Contact According to the Development Director, this meeting occurred at city hall between her, the Mayor, the Sr. VP for Development, and a Bravo Brio representative. This contact was not disclosed. October 15, 2013 Contact According to the Development Director, she hosted the Mayor and a City Council member (Council Member B) at separate meetings and tours at the Mall. 10 She stated that the tour with Council Member B included a Westfield architect. When the OIG asked the Mayor when and where she met with any Westfield representatives, she did not recount any meeting outside of city hall. However, her calendar entries reflected a meeting on that date with the Development Director at the Mall office, as well as a tour of the construction site. Council Member B told the OIG that he met with the Development Director and a Bravo Brio architect at the Mall. He stated that the meeting focused on architectural plans for an upcoming expansion project there. Neither the Mayor's nor Council Member B's contact was disclosed. Council Member B said that he did not think he had to register this meeting as lobbying activity because neither the Development Director nor the Bravo Brio representative was a lobbyist. behalfofone' s own company, the lobbyist's employer. See F.S. l l.045(l)(i)('" Principal' means the person, firm, corporation, or other entity which has employed or retained a lobbyist.") Thus, in completing the City's log, the answers for "Principal/Employer" and "Client" should be identical. 10 She explained that she never met with more than one elected official at a time and that the onsite visits also included other representatives from Westfield, none of whom she considered to be a lobbyist. BROWARD OIG REV ISED CLOS ING M EMORANDUM R EF. OIG 13-037 PAGE 5 OF 10

October 23, 2013 Contact According to the City's lobbying contact database, this meeting occurred at city hall between Council Member A and Lobbyist A. Council Member A told OIG Special Agents that the Development Director and the Sr. VP for Development were also present for this meeting that occurred just hours before the Westfield agenda item was voted on by the Council. He stated that the primary purpose of the meeting was to discuss a proposed addition of a restaurant at the Mall. Lobbyist A corroborated that he was in attendance and stated that he requested his secretary to log the contact the next morning. The contact was not disclosed as a lobbying contact until after the Council vote on the subject matter of the meeting. It was recorded on October 31, 2013, in violation of the Ethics Code's requirements to log the meeting at the time of the visit. 11 December 18, 2013 Contact The Development Director informed the OIG that she conducted a site tour for Council Member A on this occasion. The contact was not disclosed. Interpreting the Ethics Code 12 Must lobbying by principals and employers be disclosed? The Code's current definition of " 'lobbying " or "lobbying activity "' only includes communications between lobbyists and those whom they seek to influence, and omits any reference to communications between principals and employers of lobbyists and those whom they seek to influence. Sec. 1-19(b )(7). We have been urged to adopt the view that a lobbyist must be present in order to trigger the logging requirement in B.C.C. Sec. 1-19(c)(3). However, the OIG considers such an interpretation to be at odds with legislative intent. 11 The purpose of this requirement is to ensure the disclosure is made in time for it to be useful to the public; that is, prior to any vote on any matter that was a subject of the meeting. Compare B.C.C. Sec. I - I 9(c )(3)b.2 with Sec. 1 19(c)(3 )c.2. 12 We previously issued a closing memorandum in this matter, OIG 13-037, on September4, 2014. As we said we would do, we then circulated to the County and municipal attorneys a draft of a new section of the GIG Ethics Handbook: An Internal Guide for Investigations Pursuant to the Broward Code ofethics, formalizing our approach to the lobbying log requirements. After we disseminated our draft, we received comment from local government attorneys that prompted us to review all available transcripts of Broward Ethics Commission meetings in 2009 and 20 I 0, proposed ordinances and transcripts of the Board of County Commissioners for meetings at which changes to the lobbyist registration act were discussed, and the county employees' ethics code. Those comments and review prompted this revised memorandum. BROWARD OIG R EV ISED CLOS ING M EMORANDUM R EF. OI G 13-037 PAGE 6 OF I 0

At the time the Ethics Commission passed its draft of the Ethics Code, the referenced definition of"lobbyist" in the Lobbyist Registration Act (1-261 et seq.) was much broader than it is today. At the time of the Code's drafting, "lobbying" meant "communicating... on behalf of any other person [as defined, including entities] with any County Commissioner..., where the lobbyist seeks to influence a decision to be made by the Board..." "Lobbyist" meant "any individual who engaged in lobbying, as defined in subsection l-261(b), regardless of whether he or she receive[d] any compensation for such lobbying." The Lobbyist Registration Act did not address "principals" at all, doubtless because the mere act ofrepresenting one's own company (as an owner, officer, director, or employee, for example) subjected one to the definition of "lobbyist" and thus to the Act's registration requirements. In October of 2011, the same ordinance that made the Ethics Code applicable to municipal elected officials also changed the definitions for "lobbyist," "lobbying," and "lobbying activity" and made them consistent in the Lobbyist Registration Act, the Ethics Code (for elected officials), and the county employees' ethics code. This is where the current definitions for "lobbyist" (a person retained for the purpose of lobbying or employed principally to lobby) and "lobbying or lobbying activity" (communication from a lobbyist to a covered individual intended to persuade support or opposition for an item to be foreseeably decided) emerged. As originally drafted and passed in 2010, the applicable definition of lobbying referenced lobbyists only as the actors doing the lobbying. There was no additional element to "lobbyist" beyond that; thus, the subsections relating to the capture and disclosure of "lobbying activity" were clear and unambiguous. With the change in October 2011, a "lobbyist" is now defined as one who has been retained for the purpose of lobbying or who is principally employed to lobby. The current definition of"lobbying or lobbying activity" still includes the element of being from a lobbyist, as it did at the time of the drafting of the Code. But with the change in the definition of "lobbyist" to exclude those persons who have retained a lobbyist, the plain reading of these subsections now requires a negation or modification of either the definition of "lobbying" or the requirement that all lobbying by principals and employers be made transparent. Under a values-based approach and through the use of traditional principles of statutory construction, we read the standard of conduct at issue here to require that contacts by unaccompanied principals and employers of lobbyists, if intended to persuade, should be disclosed. The provision ofb.c.c. Sec. l-19(c)(3) should be read exactly as it is written. However, the definition of " 'lobbying' or 'lobbying activity" should be read to include communications from lobbyists and their principals or employers. 13 In this way, the Code's intent that "each County 13 Such an interpretation would also serve to help alleviate the due process concerns that arise when a local elected official makes an ex parte communication with a principal or employer of a lobbyist regarding a pending quasijudicial proceeding in which the principal or employer has a heightened economic stake. Requiring the logging of contacts with solitary principals and employers of lobbyists makes a record of the contacts and puts all the parties BROWA RD OIG REV ISED CLOS ING M EMORANDUM R EF. OIG 13-037 PAGE 7 OF 10

Commissioner and elected municipal official to act in a manner that promotes public trust and confidence in government with complete transparency and honesty in their services... " (B.C.C. Sec. 1-19(a)) is fully realized. Are Elected Officials Responsible ifon-site Visits Are Not Disclosed? The black letter of the Ethics Code puts the onus of logging lobbying visits to city hall upon the visitors, not upon the elected officials. Upon reconsideration of the issue, we will formalize in the OIG Ethics Handbook that we will not hold elected officials accountable for occasional failures of lobbyists and their principals and employers to properly log their own visits. Because the Ethics Code only applies to the elected officials, we cannot enforce this provision against lobbyists, their principals, or their employers. This is not to say that this provision is entirely unenforceable. The Ethics Code, taken as a whole, imposes upon elected officials an implied duty to ensure that a system of logging and disclosing lobbying contacts is implemented. Where there is no such system, where such a system falls into disuse, or where elected officials intentionally take advantage of this weakness in the Ethics Code, we will take the necessary steps to hold elected officials accountable for failures to record and disclose lobbying meetings on governmental premises. Ethics Code Violations The Development Director, the Sr. VP for Development, the Sr. VP for Construction, and the General Counsel, were each a principal (client) of the Westfield lobbyists who were registered with the City. Their contacts with the City were made for the purpose of influencing, convincing, or persuading the City officials and staff to support the Mall expansion project; that is, they engaged or participated in "lobbying activity." December 13, 2012, and January 7, 2013 Contacts Both lobbyists should have logged these visits, if they came to city hall. Ifeither appeared by telephone, then the Mayor should have captured and disclosed the information herself. In addition, if any of the following principals of the two registered lobbyists came to city hall for these meetings, they should also have logged their contact with the Mayor: the Development Director, the Sr. VP for Development, the Sr. VP for Construction, and the General Counsel. Ifany of them appeared by telephone or other electronic means, the Mayor was responsible for logging each of them. As stated above, however, the OIG is not commencing enforcement efforts against the Mayor for an occasional failure by a lobbyist, principal, or employer to record his or and the public on notice of all the facts upon which the governing body acts. See also Plantation City Code Sec. l l 5(c)(3). BROWARD ore; RE VISED CLOS ING MEMORANDUM REF. OIG 13-037 PAGE 8 OF 10

her visit. For any telephonic contacts on December 13, 2012, or January 7, 2013, we are abating action against the Mayor due to our desire to provide elected officials of due notice of our interpretation that the Ethics Code requires that lobbying activity by accompanied or unaccompanied principals and employers of lobbyists be disclosed. July 31, 2013 Contact As principals of lobbyists, the Development Director and the Sr. VP for Development should have logged their contact as lobbying activity; however, under our view, unless and until a systemic failure or abuse occurs, the elected officials will not be held responsible. October 15, 2013 Contact The Mayor and Council Member B should have logged their Mall visits with the Development Director, a principal of a lobbyist. However, we are abating action at this time. October 23, 2013 Contact Lobbyist A should have logged this contact prior to the Council meeting that evening instead of waiting until eight days after the vote on a subject that was discussed during the lobbying activity. In addition, as principals of a lobbyist, the Development Director and the Sr. VP for Development should also have logged in their visit. Without a complete failure to log such contacts or proof of an intention to allow or make such failures, we are not commencing enforcement against Council Member A. December 18, 2013 Contact If there was not an item to be foreseeably decided (the agenda item had been decided on October 23, 2013), Council Member A was not required to log his visit with the Development Director at the Mall on this occasion. Conclusion and Recommendations 14 We are of the view that lobbying activity by principals and employers of lobbyists must be disclosed, whether or not a lobbyist is present. We interpret the Ethics Code in the way that gives full meaning to this standard of conduct (B.C.C. Sec. l-19(c)(3)) and comports with the original intent of the Broward Ethics Commission and the Board of County Commissioners. Prospectively, this office will hold elected officials accountable for the disclosure of all lobbying activity by lobbyists, principals and employers by means and methods other than inperson meetings on governmental premises. We consider the definition of "lobbying 14 In the original memorandum, this section stated that we would circulate and finalize a proposed new section of our OIG Ethics Handbook: An Internal Guide for Investigations Pursuant to the Broward Code of Ethics. The OIG has taken those steps, and this memorandum reflects the OIG 's finalized approach. BROWA RD O!G REV ISED CLOS ING M EMORANDUM R EF. O!G 13-037 PAGE 9 OF\()

activity" to include communications between officials or staff and principals or employers of lobbyists. But, absent a systemic failure or evidence of intentional misconduct, we will not hold elected officials responsible for ensuring that in-person lobbying contacts (by lobbyists and their principals and employers) are captured and disclosed. Concurrent with or soon after the completion of this memorandum, we are publishing a new section of the OIG Ethics Handbook, An Internal Guide for Investigations Pursuant to the Broward Code ofethics, which formalizes our understanding of the lobbying log requirements. We note that the provisions requiring the capture and disclosure of lobbying contacts affect disclosure and transparency only. In no way do they prohibit or limit the activities of office holders. The members of the Board of County Commissioners can and should clarify these transparency provisions for the public good. Ultimately, amending the Ethics Code to require each elected official to make consistent and complete disclosure of all their lobbying contacts will increase the public's trust in government. cc: Donald Lunny, Jr., City Attorney BROWARD OIG REV ISED CLOS ING M EMORANDUM R EF. OIG 13-037 PAGE lo OF 10