CITY OF HALLANDALE BEACH, FLORIDA
MEMORANDUM
DATE: July 9, 2008
TO: D. Mike Good, City Manager
FROM: E. Dent McGough, City Clerk
SUBJECT: Discussion of Including Civil/Monetary Penalties and Associated Sanctions in the City’s Ethics Ordinance for Violations of the Ethics Code and the Inclusion of Core Values Section in the Ethics Manual
CAD# 012/07
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PURPOSE:
Consideration of imposition of sanctions consisting of civil/monetary penalties and/or censure and reprimand for violations of the City’s Code of Ethics and further consideration if City core values and associated standards of conduct should be added to the Ethics Manual.
BACKGROUND:
At the January 22, 2008 City Commission Meeting, the City Commission discussed the draft Code of Ethics Manual and associated Ethics Ordinance and directed staff to evaluate penalties, the establishment of an Ethics Board, and other matters related to breaches of ethics by public officials and employees.
The City Clerk’s office has completed research and the results of the survey of Broward County Cities are attached as Table One. It should be noted that all Florida cities are subject to the provisions of Chapter 112, Part III F.S. Section 112.317, which is attached as Attachment One.
Penalties Per State Statute
Violation of the State’s Code of Ethics is determined by the Florida Commission on Ethics and provides the Governor with grounds to remove public officers. Local governments do not have this power.
In any case in which the Florida Commission on Ethics finds a violation and imposes a civil penalty or restitution penalty, the State Attorney General shall bring a civil action to recover such penalty. The Attorney General shall collect any costs, attorney’s fees, expert witness fess, or other costs of collection incurred in bringing the action.
State Statute 112.313(1) states a "public officer" includes any person elected or appointed to hold office in any agency, including any person serving on an advisory body.
These penalties apply to violations of the State’s ethics code by a public officer:
1. Impeachment.
2. Removal from office.
3. Suspension from office.
4. Public censure and reprimand.
5. Forfeiture of no more than one-third salary per month for no more than 12 months.
6. A civil penalty not to exceed $10,000.
7. Restitution of any pecuniary benefits received because of the violation committed. The commission may recommend that the restitution penalty be paid to the agency of which the public officer was a member or to the General Revenue Fund.
In the case of an employee or a person designated as a public officer, who otherwise would be deemed to be an employee:
1. Dismissal from employment.
2. Suspension from employment for not more than 90 days without pay.
3. Demotion.
4. Reduction in salary level.
5. Forfeiture of no more than one-third salary per month for no more than 12 months.
6. A civil penalty not to exceed $10,000.
7. Restitution of any pecuniary benefits received because of the violation committed. The commission may recommend that the restitution penalty be paid to the agency by which the public employee was employed, or of which the officer was deemed to be an employee, or to the General Revenue Fund.
8. Public censure and reprimand.
In the case of a candidate:
1. Disqualification from being on the ballot.
2. Public censure.
3. Reprimand.
4. A civil penalty not to exceed $10,000.
In the case of a former public officer or employee who has violated a provision applicable to former officers or employees or whose violation occurred before the officer's or employee's leaving public office or employment:
1. Public censure and reprimand.
2. A civil penalty not to exceed $10,000.
3. Restitution of any pecuniary benefits received because of the violation committed. The commission may recommend that the restitution penalty be paid to the agency of the public officer or employee or to the General Revenue Fund.
The State Statute states any violation by a public officer shall constitute malfeasance, misfeasance, or neglect of duty in office. According to Section 100.361(1)(b)(6)(b) The grounds for removal of elected municipal officials shall be limited to the following:
1. Malfeasance;
2. Misfeasance;
3. Neglect of duty;
4. Drunkenness;
5. Incompetence;
6. Permanent inability to perform official duties; and
7. Conviction of a felony involving moral turpitude.
Violation of the State’s Code of Ethics as determined by the Florida Commission on Ethics would also provide for an elected municipal official to be subject to the section 100.361, Florida Statutes, Municipal Recall.
State Statute section 112.317 states by order of the Governor, upon recommendation of the Commission on Ethics, any elected municipal officer who violates the code of ethics may be suspended from office and the office filled by appointment for the period of suspension. The suspended officer may at any time before removal be reinstated by the Governor. The Senate may, in proceedings prescribed by law, remove from office, or reinstate, the suspended official, and for such purpose the Senate may be convened in special session by its President or by a majority of its membership.
The Statute states in any case in which the Commission on Ethics finds probable cause to believe that a complainant has committed perjury in regard to any document filed with, or any testimony given before, the commission, it shall refer such evidence to the appropriate law enforcement agency for prosecution and taxation of costs. Further, in any case in which the Commission on Ethics determines that a person has filed a complaint against a public officer or employee with a malicious intent to injure the reputation of such officer or employee by filing the complaint with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation, the complainant shall be liable for costs plus reasonable attorney's fees incurred in the defense of the person complained against, including the costs and reasonable attorney's fees incurred in proving entitlement to and the amount of costs and fees.
If the complainant fails to pay such costs and fees voluntarily within 30 days following such finding by the Commission on Ethics, the Commission on Ethics shall forward such information to the Department of Legal Affairs, which shall bring a civil action in a court of competent jurisdiction to recover the amount of such costs and fees awarded by the commission.
The Commission on Ethics will not take action on violations of local Code of Ethics.
DISCUSSION:
Penalties in Other Broward Cities
Four Broward municipalities, Coral Springs, Hollywood, Miramar and Pembroke Pines, have a Code of Ethics in their Code of Ordinances in addition to State Statutes. Included in the Code of Ethics for each of these Cities are either civil/monetary penalties and/or censure and reprimand for violation of the Code of Ethics. The remaining Cities do not have additional ethics provisions beyond Chapter 112, Part III, Florida Statutes, discussed above.
Ethics Boards
The City Clerk’s Office contacted the four Cities having additional Ethics provisions in their Code of Ordinances and all advised they do not have an Ethics Board to evaluate violations of the Ethics Policy or Code.
Establishment of an Ethics Board for Hallandale Beach is also not recommended.
Procedures and Legal Representatives Associated with Determining Ethics Violations
A quasi-judicial proceeding must be held when determining whether an ethics violation or violations have occurred. If the proceeding results in a determination of violation, the penalties may be imposed by a vote of the City Commission and may include censure and reprimand. The proceeding would include witnesses and other evidence. If there is a finding that the Ethics Code has been violated, it may also be a basis for additional action by the Florida Ethics Commission that is authorized to determine if grounds exist for violations of Chapter 112, Part III, Florida Statutes.
If a fellow Commissioner member should be accused of violations, a separate independent counsel should be provided to represent the accused Commission member and a separate independent counsel should be hired to represent the City Commission.
Penalties
In regards to penalties, the City Commission could determine:
1. To create and adopt supplemental local civil/monetary penalties of up to $500.00 under Section 162.22 of the State Statutes, attached as Attachment Two, and, or
2. Establish censure and reprimand sanctions.
It should be noted the City Charter 3.08 Prohibition (3) Interference with Administration, states except for the purpose of inquiries and investigations, the commission or its members shall deal with city officers and employees who are subject to the direction and supervision of the manager solely through the manager, and neither the commission nor its members shall give orders to any such officer or employee, either publicly or privately.
Additionally, the City Charter Article IV, City Manager, Section 4.03 Powers and Duties states: the city manager shall be responsible to the city commission for the proper administration of all affairs of the city coming under his jurisdiction and he shall:
o Appoint all heads of departments after notification of the city commission, and all city employees and officers, except as otherwise provided by law, by the Charter, or by personnel rules adopted pursuant to the Charter;
o When he deems it necessary for the good of the city, suspend any department head under his jurisdiction for a period not to exceed fifteen (15) days. He may remove the heads of city departments, except the legal department, provided he does so only after notification with the city commission; and
o When he deems it necessary for the good of the administrative service, suspend or remove all other city officers or employees, in accordance with the personnel rules of the municipality.
Therefore, the City Manager is already empowered under the City Charter and City Code to handle issues associated with determining whether employees have committed ethics violations and take appropriate action. It is recommended that the City Manager continue to determine violations and impose penalties for employees.
The City Commission may wish to consider penalties for members of the City Commission and whether board and committee members would be subject to specific penalties or sanctions. It should be noted that since Board and Committee members, with the exception of the Police and Fire Pension Board and the Civil Service Board, serve at the pleasure of the City Commission and can be removed as a public officer by majority vote of the Commission, at will, specific penalties or sanctions may not be .
The City Commission may also wish to determine whether civil/monetary penalties and/or censure and reprimands would also apply to violations of the City Charter, Code of Ordinances, and Protocol Manual in addition to the Code of Ethics.
The City Commission may wish to consider adding standards for conduct, such as those in the Coral Springs Code of Ethics Section 2-25, attached for review as Attachment Three, to express the core values of the City and its Public Officers, Employees and Board and Committee Members.
RECOMMENDATION:
The City Commission discuss this item and provide further direction.
Prepared by: ______________________________
Shari Canada, Deputy City Clerk
Reviewed:
_________________________ ______________
D. Mike Good, City Manager Date
_____Approved _____Denied _____Hold for discussion
Comments:
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