Miami-Dade Commission on Ethics and Public Trust 1

Miami-Dade Commission on Ethics and Public Trust

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NIGP TrainingFlorida Sunshine LawFlorida Public Records ActMiami-Dade Ethics Code

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Florida Sunshine Law – “Public Meetings”, Fla. Stats. Sec. 286.011

The Sunshine Law applies to: Any collegial boards/committees; any gathering (formal or informal) of 2 or

more members of the same board; staff members – but this depends on the

nature of the actions they perform. any discussion of public business or any

matter that will foreseeably come before the board for action.

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ethics.miamidade.gov Hotline: (786) 314-9560

Sunshine Law & Selection Committees Sec. 286.0113, Fla. Stats., carves out an

exception for selection committees. May close portions of meeting where (1) vendor

makes oral presentations or answers questions or (2) negotiation strategies are discussed by team.

Disallowed in Miami-Dade County because it violates the Cone of Silence.

Municipalities that opted out of the Cone of Silence, may close the meeting in these circumstances.

Municipalities that adopted their own Cone of Silence,need to verify if theirs allows it.


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Three basic requirements of the Sunshine Law:

meetings must be open to the public;

the public must receive reasonable notice of meetings;

minutes of the meetings must be taken and open to public inspection.

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Types of meetings subject to the Sunshine Law:

gathering of 2 or more members of the same board/committee;

written communications – i.e. when reports are circulated among members for comments and these comments are provided to other members;

telephone conversations; informal discussions - i.e. workshops; meetings to discuss personnel matters; Exemptions: meetings regarding certain

confidential material, e.g. investigative meetings, pending litigation.

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Notice and other procedural requirements of the Sunshine Law:

Reasonable notice – definition varies but consider including the following: Notice the time and place of meeting, along

with the agenda, if available; Prominently display the notice in the agency’s

office, in a place set aside for that purpose; Notice emergency meetings at least 24 hours

in advance; Send press releases, make phone calls, and for

matters of critical public concern, advertise in local newspapers of general circulation.

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Notice and other procedural requirements cont.:

reasonable notice is also required for a rescheduled meeting;

meetings at facilities that discriminate or unreasonably restrict public access are prohibited;

luncheon meetings should be avoided; out-of-town meetings are generally prohibited, but

balancing test may be used; inspection trips permitted, as long as no discussion

related to business of the board; excluding certain members of the public is not

allowed, unless they are unruly and disruptive; cameras and tape recorders are permitted; publishing an agenda is not required.

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Public’s right to participate in meetings:

The public has an inalienable right to be present and be heard at all deliberations.

The public must be allowed a meaningful opportunity to participate,

Public boards/committees may adopt reasonable rules to: Limit the amount of time an individual may

address the board; Confine the speaker to agenda items; Require speakers to register in advance of the

meeting.

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Voting by Boards/Committees & the Sunshine Law

Use of secret ballots, coded letters, or numbers is prohibited.

Abstaining from voting is not allowed by law, unless the member has or believes he/she has a conflict of interest.

Members may absent themselves prior to a vote being taken, but this is discouraged, particularly if it results in the board losing a quorum.

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Minutes & the Sunshine Law

Written minutes must be kept and be open to public inspection.

Minutes need not be verbatim transcripts – a summary or series of brief notes is acceptable as long as all official votes are recorded and members’ preferences are identified for the record.

Audio recordings are not required.

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Penalties for noncompliance with the Sunshine Law:

Criminal misdemeanor in the second degree for a knowing violation.

Removal from office. Non-criminal infractions – fines up to $500. Reasonably attorney’s fees (against board or

individual member), unless board acted on the advice of counsel.

Official actions taken by the board are voided. Additional injunctive or declaratory relief may

be ordered.

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Florida’s Public Records ActFreedom of Information, Fla. Stats., Ch. 119

Florida Constitution provides public with the right to access any public record made or received in connection with the official business of any public body, regardless of the physical form of the record.

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Florida Public Records Act –Types of Records

Print materials; Computer data, e.g. e-mails; Personnel records (exempt: medical

records, social security number and records of certain employees);

Data on wireless or digital devices, e.g. smartphones, tablets, etc.

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Florida Public Records Act –“Right of Access”

“Right of Access” means: Access at any reasonable time, under

reasonable conditions, and under the supervision of the custodian of the public record;

“reasonable time” means during regular business hours – government cannot establish arbitrary times for inspection;

“access” includes the right to photocopy as well as examine all public records.

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Florida Public Records Act – Other provisions

Records must be open to any person for personal inspection – requester does not need a special interest or reason.

Request need not be made in writing. Request need not be specific. Requester cannot require that request be

provided in a specific format. Response must be made within a reasonable

period of time – automatic delays impermissible.

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Florida Public Records Act – Other provisions cont.

Government cannot refuse to comply because records are not in custodian’s physical possession.

If government claims an exemption, the custodian must state, in writing, the basis for the exemption, including the statutory citation.

If only some information is exempt, the exempt parts should be redacted.

When disposing of or destroying records, government must act in accordance with State records-retention schedule (even if record is exempt).

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Fees for public records requests:

No charge is permitted for mere inspection of records.

Fees for copying and additional charges for certified copies are established by State statute.

Special service charges for extensive clerical or IT services are permitted, but they may not be routinely imposed.

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Florida Public Records Act –Remedies

A requestor who was denied access may seek relief through court orders (e.g. mandamus, injunctive relief).

A requestor may obtain attorney’s fees related to legal actions taken to obtain documents from government.

Criminal penalties may be imposed on government.

Mootness is not a defense, i.e. government may not claim that the record is no longer relevant.

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Miami-Dade Conflict of Interest and Code of Ethics Ordinance, Sec. 2-11.1, M-D County Code

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Financial Disclosure (State)(Sec. 112.3145, Fla. Stats.)

Who? Elected officials (including Mayor) Manager Chief administrative employee County/Municipal attorney Chief Building Inspector Water Resources Coordinator Pollution Control Director Environmental Control Director Official with power to grant/deny land development permit Police Chief Fire Chief Clerk Purchasing agent with authority to make purchases

exceeding $20K.

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Financial Disclosure (State) Cont. What?

State Form 1 - www.ethics.state.fl.us Copy of income tax return.

When? July 1st of each year.

Where? County Elections Dept. If municipal official/employee –municipal

clerk’s office.ethics.miamidade.gov Hotline: (786)

314-9560

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Financial Disclosure (County) (Sec. 2-11.1(i), M-D County Code)

Who? County/City Attorney Assistant County/City Attorney County/City Manager Assistant County/City Manager Special Assistants to County/City Managers Department Directors Assistant Department Directors Employee of police dept. with rank of Captain,

Major or Chief Zoning Inspectors


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Financial Disclosure (County) Cont. What?

County Source of Income Statement – ethics.miamidade.gov

Copy of income tax return. When?

July 1st of each year. Where?

County Elections Dept. If municipal official/employee –municipal clerk’s

office. ethics.miamidade.gov Hotline: (786) 314-9560

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Transacting business (Sec. 2-11.1(c)(1), M-D County Code)

Elected officials/employees (or their immediate family members) may not contract with the County/City department for which he/she works.

Immediate family of the board member may not do so either.

“Immediate family” is defined as: spouse, domestic partner, parents, stepparents, children and stepchildren.

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Gifts (Sec. 2-11.1(e), M-D County Code)

It is unlawful to solicit or demand a gift in exchange for an official duty or public action.

“Gift” is anything of economic value, including: meals, travel, loans, entertainment, hospitality, or a promise of such, without adequate consideration.

Gifts (within a quarterly period) exceeding $100 must be reported.

Difference in market value & discounted price = gift

Department policy may be more restrictive – County Procurement Dept. has NO gift policy.

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What is not a gift? Gifts solicited for official government

business (i.e. County sponsored events); Gifts exchanged between co-workers,

relatives and friends; Political contributions; Awards for civic or professional

achievement; Informational books/pamphlets; Gifts solicited by County Commissioners

or their staff on behalf of non-profits.

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Gift Disclosure (Sec. 2-11.1(e)(4), M-D County Code)

Who? Elected officials and employees.

What? Quarterly gift disclosure form –

ethics.miamidade.gov When?

End of the quarter following the quarter in which the gift was made (i.e. Jan-Mar).

Where? Clerk of the Board of County Commissioners. If municipal official/employee –municipal clerk’s

office.

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Gifts (State Law) Unauthorized Compensation (Sec.

112.313(4), Fla. Stats.) No public employee may accept any

compensation, payment, or thing of value when he knows that it was given to influence an action by the employee.

No spouse of minor child of the employee may accept either.

Standard: whether employee knows or should have known.


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Bribery (Sec. 838.015, Fla. Stats.) Definition:

Giving a benefit to any public servant with an intent to influence the performance of any act or omission in the performance of a public duty.

A public servant requesting or accepting a benefit with an intent to influence the performance of any act or omission in the performance of a public duty.

Examples: Quid pro quo – something offered for something in

return Kick back – something given to employee after the fact Extortion – threat with intent to coerce person to do

something Grease payments – payment to expedite (i.e. tipping)

2nd degree felony – punishable by up to 15 years in prison ethics.miamidade.gov Hotline: (786)

314-9560

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Outside employment(Sec. 2-11.1(k), M-D County Code)

Before engaging in outside employment, employee must file a “Request for Outside Employment” form with their department, including approval from supervisor.

Once engaged in outside employment, employee must file “Outside Employment Statement” on July 1st of each year with County Elections Dept. (or municipal clerk’s office for municipal employees).


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Gifts from Vendors –Accepting travel expenses(Sec. 2-11.1(w), M-D County Code)

No elected officials or employees may accept travel expenses from any County vendor, contractor, service provider, bidder or proposer.

Travel expenses – transportation, lodging, meals, registration fees, incidentals.

Can not accept directly or indirectly.


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Conflicting employment (Sec. 2-11.1(j), M-D County Code)

Elected officials and employees can not accept outside employment which would impair his/her independence of judgment in the performance of his/her public duties.


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Exploitation of official position (Sec. 2-11.1(g), M-D County Code)

No elected official or County/municipal employee may use or attempt to use their official position to secure special privileges or exemptions for themselves or others.

Examples (from previous complaints): Video production – Employee used County

personnel, resources and equipment to produce a video tape tribute celebrating his parents’ 50th wedding anniversary. Was charged with exploitation of official position and paid a fine and costs.

Stealing time – Employee, who was responsible for PARS, took leave and did not deduct the hours from his bank. Was charged with exploitation of official position, paid a fine and received a letter of reprimand.

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Exploitation – Outside Employment Even when an employee obtains permission to

engage in outside employment and files Source of Income Statement yearly, engaging in outside employment may consistute an exploitation of official position.

Examples include: Employee engages in outside employment during

County hours. Employee uses County supplies and/or equipment in

the performance of her outside employment. Employee uses her County position in order to gain

the outside employment. Employee uses information gained as a County

employee to aid her outside employer.ethics.miamidade.gov Hotline: (786)

314-9560

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Prohibited investments(Sec. 2-11.1(l), M-D County Code)

Elected officials and employees may not have personal investments in any enterprise which will create a substantial conflict between his/her private and public interests.

Includes investments held through immediate family.


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Confidential Information(Sec. 2-11.1(h), M-D Count Code)

Elected officials and employees may not: accept employment or engage in any

business or professional activity that they might reasonably expect would induce them to disclose confidential information acquired by reason of their official position;

disclose confidential information obtained through their official position with the County/City; or

use such information, directly or indirectly, for personal gain or benefit.

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Appearances(Sec. 2-11.1(m)(1), M-D County Code)

Elected officials and employees, may not: appear before any County/City board or

agency on behalf of 3rd parties with respect to any license, contract, certificate, ruling, decision, opinion, rate schedule, franchise or other benefit.

Receive compensation from 3rd parties seeking a benefit from the County/City.

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Action prohibited when financial interests involved(Sec. 2-11.1(n), M-D County Code)

Elected officials and employees shall not participate in any official action directly or indirectly affecting a business in which he/she or any member of his/her immediate family (as previously defined) has a financial interest.

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Recommending professional services(Sec. 2-11.1(p), M-D County Code)

Elected official and employees may not recommend the services of any lawyer, architect, public relations firm, or any other person or firm to assist in any transaction involving the County/City or any of its agencies.

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Lobbying (Sec. 2-11.1(s), M-D County Code)

“Lobbyist” is defined as anyone seeking to encourage the passage, defeat or modification of: Any ordinance, resolution, action or decision of

the County/City Commission; Any action, decision or recommendation of any

County/City board or committee; Any action, decision or recommendation of

County/City personnel. Others considered lobbyists are:

Employee whose normal scope of employment includes lobbying activities,

Principals of company (but not required to pay registration fee).

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Lobbying Registration in County (Cities may have different requirements.)

Must register and pay annual fee. Must complete ethics training course

within 60 days of registration. Must file timely expenditure statements

(by July 1st of each year unless no expenses incurred).

Must register on behalf of each entity represented but not on each issue.

Cannot accept contingency fees.

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Who is not a lobbyist? Attorneys or other representatives in quasi-judicial

proceedings where the law prohibits ex-parte communications;

Expert witnesses; Employees whose normal scope of employment does

not include lobbying activities; Representatives of nonprofit organizations (must

register but fee waived); Representatives for community based organization

applying for a grant; Individuals appearing in their individual capacity for

the purpose of self-representation; Any public officer, employee or appointee who

appears in his/her official capacity.

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Two-Year Rule(Sec. 2-11.1(q), M-D County Code)

No elected official or employee may: lobby any County/municipal officer, departmental

personnel/employee for a period of 2 years after leaving

County/municipal employment In connection with any proceeding, application,

bid, contract, claim, controversy, charge or accusation…in which the County is a party or has any interest (direct or indirect).

Section does not prohibit “routine administrative request or application” to a County department.

Exception for those who are employed by non-profit corporation, government entity, or educational institution. ethics.miamidade.gov Hotline: (786)

314-9560

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Reverse Two-Year Rule (Sec. 2-11.1(x), M-D County Code)

No employee who in the previous 2 years, was employed by or held a controlling financial

interest in a for-profit business entity, may perform any County contract-related duties

regarding that entity. “Contract-related duties” –

service as member of selection committee; approval/recommendation of award of contract; contract enforcement, oversight or

administration; amendment, extension or termination of contract; forbearance regarding any contract.


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Cone of Silence(Sec. 2-11.1(t), M-D County Code)Applies to Miami-Dade County. Municipalities may opt out, use the County’s or adopt their own.

When does Cone of Silence apply?

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If the recommendation is referred back to the Mayor, the Cone is re-imposed until Mayor or equivalent makes a subsequent written recommendation.

If Mayor or equivalent delegated the authority to award, the Cone is generally lifted at the time the award recommendation is issued.


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RFP, RFQ, Bidadvertised

Mayor/Manager/CEO (JMH) makes

Recommendation to BCC/PHT

Prohibited Oral Communications

&

&

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Potential vendor/

bidder/lobbyist/consultant

Mayor/County Commissioner/

staffs

County’s professional

staff

1. County’s Professional Staff;

2. Members of selection committee;

3. Mayor, County Commissioners or their staff

1. County’s Professional Staff;

2. Members of selection committee

Members of the selection committee.

Cone of Silence Exceptions Communications with the County Attorney and his or her

staff; Communications regarding small business and/or minority

business programs; Communications with employees regarding matters of

process or procedure; Duly noticed site visits to determine the competency of

bidders; Communications by vendor, service provider or bidder with

employees of the Department of Procurement Management or other department identified in the solicitation document as the issuing department provided that a written record of the communication is logged;

Note: Procurement department policy limits such communications to the contracting officer in the department or other individual designated to act in that capacity.

Consultations by employees of the Department of Procurement Management with professional procurement colleagues;


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Exceptions Continued Pre-bid conferences; Oral presentations before selection

committees; Contract negotiations during any duly

noticed public meeting; Public presentations made to the Board of

County Commissioners during any duly noticed public meeting;

Oral briefings between members of the BCC and the Mayor or his designees after the selection committee recommendation provided that the briefings are not intended to influence the recommendation;

Meetings or conversations with personnel at the Miami-Dade Commission on Ethics and Public Trust or the Miami-Dade Office of Inspector General. ethics.miamidade.gov Hotline: (786)

314-9560

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Permitted Communications under the Cone of SilenceAll written communications, unless specifically prohibited by the applicable RFP, RFQ or bid documents.

Note: Copy of written communication must be filed with Clerk of the Board.


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Penalties (cc) For Cone of Silence Violations – award may be

voidable & penalties below Admonition or public reprimand $500 fine for first count $1,000 for each subsequent count $1,000 for first intentional violation $2,000 for each subsequent intentional violation Investigative costs not to exceed $500 per

violation Restitution When prosecuted by the State Attorney and found

guilty, a fine not to exceed $500 or imprisonment in County jail for up to 30 days.

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Members of the Ethics Commission Charlton Copeland, Chair Nelson Bellido, Vice-Chair Dawn Addy Kerry E. Rosenthal Hon. Lawrence A. Schwartz

Joseph M. Centorino, Executive Director

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Hotline: 786-314-9560E-mail: [email protected]: 305-579-0273Request a speaker: 305-350-0630

ethics.miamidade.gov

Documents

Miami-Dade Commission on Ethics and Public Trust 1