HomeMy WebLinkAboutOrdinance 2010-349
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ORDINANCE NO. 2010-~
AN ORDINANCE OF THE CITY OF SUNNY ISLES BEACH,
FLORIDA, AMENDING CHAPTER 33 OF THE CODE OF
ORDINANCES PERT AINING TO POST EMPLOYMENT
RESTRICTIONS UNDER THE CITY ETHICS CODE;
PROVIDING FOR PURPOSE AND LEGISLATIVE INTENT;
PROVIDING FOR RULES OF CONSTRUCTION; PROVIDING
FOR SEVERABILITY; PROVIDING FOR APPLICABILITY;
PROVIDING FOR INCLUSION IN THE CODE; PROVIDING
FOR REPEALER; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the purpose of the Ethics Code set forth in Chapter 33 of the Code of
Ordinances of the City of Sunny Isles Beach (the "City") is for City officials and employees to
adhere to the highest ethical standards necessary for the efficient and effective operation of City
government; and
WHEREAS, in furtherance of this objective, the City Commission reaffirms its treatment
of public government as a public trust, using the powers and recourses of public government only
to advance public interest and to prevent officials or employees from exploiting public office for
personal gain, subordinating the interests of the City to those of a prospective employer, or
exerting undue influence on government decision making; and
WHEREAS, the City Commission desires to safeguard public confidence in the integrity
of government by being honest, fair, caring, and respectful and by avoiding any conduct which
creates the appearance of impropriety or which is otherwise unbefitting a public official or
employee; and
WHEREAS, Article VIII, Section 2, Constitution of the State of Florida, as revised in
1968, provides for and establishes municipalities and grants to those municipalities
governmental, corporate and proprietary powers to enable them to conduct municipal
government, perform municipal functions and render municipal services and authorizes said
municipalities to exercise any power for municipal purposes, except as otherwise provided by
law; and
WHEREAS, Chapter 166, Florida Statutes, known as the "The Municipal Home Rule
Powers Act" implements by general law the authority and jurisdiction granted to municipalities
by the Florida Constitution and establishes home rule for said municipalities; and
WHEREAS, pursuant to the Home Rule Amendment and Charter of Miami Dade
County, Florida, each municipality shall have the authority to exercise all powers relating to its
local affairs not inconsistent with the Miami Dade County Charter and shall also have the
authority to provide for higher standards than those provided by Miami Dade County in order that
its individual character and standards may be preserved for its citizens; and
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WHEREAS, Section 7.2 of the City Charter provides the City Commission with the
authority to adopt a more stringent Ethics Code to prevent any appearance of conflict of interest
by elected officials and employees; and
WHEREAS, the City of Sunny Isles Beach has adopted an Ethics Code more stringent
than the Code of Ethics of Miami-Dade County as it relates to post-employment restrictions.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Incorporation of Recitals. The foregoing "WHEREAS" clauses are hereby ratified
and confirmed as being true and correct and are hereby made a specific part by this Ordinance
upon adoption hereof.
Section 2. Purpose and Legislative Intent. The City Commission affirms that the purpose
and legislative intent of this amendatory Ordinance is for public officials and employees to be
independently impartial and responsible to the citizens of the City, free from conflicts of interest,
personal gain, undue influence, corruption, or appearance of impropriety during the government
decision making process. More precisely, the City Commission wishes to affirm and clarify that
the post employment restrictions set forth in Chapter 33-3(P)of the City Code are unequivocal
and absolute restrictions on post employment activities for all officers and employees of the City
for a period of two (2) years following termination of employment, subject to narrowly defined
exemptions. Furthermore, the purpose and legislative intent of this Ordinance is to confirm and
clarify that the City's post employment restrictions are more stringent than the post employment
restrictions found in the Code of Ethics of Miami-Dade County as construed by the Miami Dade
County Commission on Ethics and Public Trust in Opinion RQO 10-19, dated July 20, 2010.
Section 3.
Amendment. Chapter 33 of the City Code is amended to read as follows:
~ 33-3
Conflicts of Interest and Code of Ethics.
Section 2-11.1 of the Code of Miami-Dade County as adopted by S C-8.3 of the City Charter of
Sunny Isles Beach is amended to create "Conflict of Interest~ and Code of Ethics and Post
Employment Restrictions."
P. Continuing application Post Employment Restrictions and Certain Appearances
Prohibited for two years after service employment.
(2) Except as provided in this subsection, Nno person who has served as an elected City
official, Mayor, Commission member or member of the staff of an elected official, or as
City Manager, an assistant to the Manager, City Attorney, Deputy or Assistant City
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Attorney, department director or employee shall, for a period of two years after service or
employment has ceased, communicate orally, in writing, or in any other manner on behalf
of any other person or entity with the intent to influence a government decision, exploit
for personal gain, subordinate the interests of the City to those of a current or prospective
employer or any other person or entity, act in any way as to give an appearance of
impropriety, corrupt the government decision making process, lobby, or testify as a fact
or expert witness whether paid or unpaid, or otherwise attempt to unduly influence any
City officer or employee in connection with any judicial, quasi judicial or other
proceeding, application, RFP, RFQ, bid, request for ruling, other determination, contract,
claim, controversy, charge, accusation, arrest or other particular subject matter in which
the City or one of its agencies or instrumentalities is a party or has any interest whatever,
whether direct or indirect or in which such person participated personally and
substantially in the subject matter. Additionally, no person who has served as a City
Commissioner member, elected City official. Mayor, or member of the staff of an elected
official. or as City Manager, an assistant to the Manager, City Attorney, Deputy or
Assistant City Attorney, department director or employee shall, for a period of two years
after his/her service or employment has ceased, communicate orally, in writing. or in any
other manner on behalf of any other person or entity with the intent to influence a
government decision, exploit for personal gain, subordinate the interests of the City to
those of a current or prospective employer or any other person or entity, act in any way as
to give an appearance of impropriety. corrupt the government decision making process,
lobby, or testify as a fact or expert witness whether paid or unpaid, or otherwise attempt
to unduly influence with regard to any zoning or land use issue, any City officer,
departmental personnel or employee in connection with any judicial. quasi iudicial or
other proceeding, application, request for ruling, or other determination, contract, claim,
controversy, charge, accusation, arrest or other particular subject matter in which the City
of Sunny Isles Beach or one of its agencies or instrumentalities is a party or has any
interest whatever, whether direct or indirect or in which such person participated
personally and substantially in the subject matter. Nothing contained in this subsection
shall prohibit any individual included within the provisions of this subsection from
submitting a routine administrative request or application to a City department or agency
during the two-year period after service or employment has ceased. The two year post
employment restrictions contained herein shall operate as an unequivocal and absolute
prohibition, unless such person is exempted as provided in Subsection PO) below. The
definition of "lobbyist" set forth in Section 33-2.B. of the City Code shall not apply to, or
otherwise conflict with, the two year post employment restriction set forth herein.
(3) The provisions of Subsection P(2) above shall not apply to officials or employees who
become employed by governmental entities, 501 (c )(3) nonprofit entities or educational
institutions or entities, and who lobby or make an appearance on behalf of such entities in
their official capacities. The provisions of Subsection P(2) above shall not apply in the
case of an elected City official or employee who is personally served with a subpoena to
testify under oath as a fact witness in a judicial proceeding in which the City of Sunny
Isles Beach or one of its agencies or instrumentalities is a party. The provisions of
Subsection P(2) shall also not apply to any former employee who receives a zoning
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notice as provided in Chapter 265 of the City Code and who desires to comment at a
public hearing on the subject matter. Additionally, the provisions of Subsection P(2)
above shall not apply to any former employee whose personal or real property is the
subject matter of the judicial. quasi judicial or other proceeding. Finally. the provisions
of Subsection P(2) above may be waived upon a written request made to the City
Commission if the City Commission finds the comments to be in the public interest or
finds the comments necessary to assist in understanding of documents that are deemed
public records. The waiver request shall be filed with the City Clerk no later than five
business days prior to the judicial. quasi judicial or other proceeding, in which the person
seeks to provide a verbal or written comment.
Section 4. Rules of Construction. This Ordinance shall be construed liberally to effectuate its
purpose and no exemptions shall be construed unless specifically authorized herein.
Section 5. Severability. The provisions of this Ordinance are declared to be severable and if
any section, sentence, clause or phrase of this Ordinance shall for any reason be held to be invalid
or unconstitutional, such decision shall not affect the validity of the remaining sections,
sentences, clause, and phrases of this Ordinance but they shall remain in effect, it being the
legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part.
Section 6. Applicability. This Ordinance shall apply to all employees and former employees
who have not exceeded the two (2) years post employment period from the date of resignation or
termination.
Section 7. Inclusion in the Code. It is the intention of the Commission, and it is hereby
ordained, that the provisions of this Ordinance shall become and be made a part of the code of the
City of Sunny Isles Beach, Florida; and that the sections of this Ordinance may be renumbered or
relettered to accomplish such intentions; and that the word "ordinance" shall be changed to
"section" or other appropriate word, as required.
Section 8. Repealer. All ordinances or part of ordinances in conflict herewith be and the
same are hereby repealed.
Section 9.
reading.
Effective Date. This Ordinance shall be effective after adoption on second
PASSED and ADOPTED on first reading the ~l~ day of ~lkLY 2010.
PASSED and ADOPTED on second reading the \O.J),.. day of tw.~UST 2010.
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Jane' A. Hines, CMC, City Clerk
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APPROVED AS TO FORM
AND L UE CIENCY:
Vote: S-O
Mayor Ede1cup
Vice Mayor Thaler
Commissioner Brezin
Commissioner Goodman
Commissioner Scholl
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Moved by: Co~ ~HOLL
Seconded by: ~~ ~<i.2/J
~(Yes)
--LL<Yes)
v(Yes)
;;/Y es)
(Yes)
_(No)
(NO)
_(NO)
_(NO)
(NO)
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City Commission
Norman S. Edelcup
Mayor
Roslyn Brezin
Vice Mayor
Gerry Goodman
Commissioner
Danny Iglesias
Commissioner
Lewis J. Thaler
Commissioner
A. John Szerlag
City Manager
Hans Ollinol
City Attorney
Jane A. Hines
City Clerk
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June 1, 2006
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Lynn M, Dannheisser, Esq.
Gunster Yoakley & Stewart, P.A.
500 East Broward Blvd., Suite 1400
Fort Lauderdale, FL 33394-3076
Via Fax & U.S. Mail.
Re: Two (2) Years Service Ban
Dear Lynn:
Thank you for your memorandum of law regarding the two (2) years service ban for
former employee of the City of Sunny Isles Beach. I have reviewed the memorandum,
Unfortunately, I cannot agree with the conclusion in the memorandum.
In addition to the restrictive lobbyist legislation adopted by the City, the City's Conflicts
of Interest and Code of Ethics Ordinance prohibits a former employee from representing
a client before the City Commission except where two (2) years have elapsed from the
date of resignation from employment with the City. Specifically, Sections 33-3(P)(2)
provides that a former employee cannot "lobby any City Officer or employee in
connection with any judicial or other proceeding, application,............" for a period of
two (2) years from the date his/her resignation. (emphasis added)
As you know, a lobbyist is defined as any individual or firm employed by a principal
who seeks to encourage the passage or defeat of a decision of the City Commission.
See, Section 33-2(A) of the City Code. Please note there is no quasi-judicial exception
for attorneys under the City Code. The City Code is the controlling law, not the County
Code. Thus, it clearly appears that your representation of a client before the City
Commission in a quasi-judicial matter is not permitted under the City Code. If it is your
desire to representative clients before the City Commission, I strongly suggest that you
discuss the need for a quasi-judicial exception with the policy makers.
I trust this letter is responsive to your question. For your convenience, I have attached a
copy of th~onflicts of Interest and Code of Ethics Ordinance.
ceW
Attachment:
cc: John Szerlag, City Manager
Jorge Vera, Assistant City Manager
Patricia Saint Vii-Joseph, Deputy City Attorney
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ETHICS, INTEGRITY AND ACCOUNTABILITY TASK FORCE
FINAL REPORT
Prepared July 2008
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Table of Contents
I.
Introduction
Pages 4, 5
II. Recommendations
-County Ethics Ordinance Amendments
Pages 6-12
-Ethics Commission Enabling Ordinance
Pages 13, 14
-Campaign Finance Reforms
Pages 15, 16
-Citizens' Bill of Rights
Page 17
-Recommendation from Ethics Commission
Pages 17, 18
III.
Conclusion
Page 19
IV. Appendices
Appendix A Miami-Dade County Conflict of Interest and Code of Ethics
Ordinance (Section 2-11,1)
Appendix B Miami-Dade County Commission on Ethics and Public Trust
Enabling Ordinance (Section 2-1066 to 2-1075)
Appendix C City of Miami Beach Campaign Finance Reform Ordinance
(Section 2-487 to 2-490)
Appendix D Miami-Dade Home Rule Charter - Citizens' Bill of Rights
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ACKNOWLEDGEMENTS
In May of 2007, the Ethics, Integrity and Accountability (EIA) Task Force was
formed to evaluate the current ethics regulations in effect in Miami-Dade County, to
critically assess the enabling ordinance creating the Miami-Dade Commission on Ethics
and Public Trust and to contemplate other initiatives to advance ethical governance in our
community. The ultimate goal was to forward a report with recommendations to the
Board of County Commissioners for legislative action. The EIA Task Force, a group of
experts in the field of law, government and ethics, held general meetings and
subcommittee meetings. The subcommittees were organized as follows: ordinance
review; powers and sanctions; ethics and education; ethics and elections; ethics and
whistleblowing and a drafting subcommittee. The drafting committee was charged with
assembling the recommendations and presenting them to the full committee for
consideration.
Special recognition goes out to Elizabeth Hernandez, who served as chairperson
and did a masterful job keeping the members focused. Furthermore, Cynthia Everett,
Hans Ottinot and Sam Terilli, the drafting subcommittee members, should be
commended for their willingness to tackle the drafting assignment.
The other members who also gave unselfishly of their time and made significant
contributions to the final product are listed below in alphabetical order: Professor
Anthony Alfieri, Joseph Centorino, Esq., Richard Ellis, Professor Kenneth Goodman,
Professor Art Kane, Justice Gerald Kogan, Professor Michael Lenaghan, Santiago Leon,
Mayor Manuel Marono, Professor Valerie Patterson, Valria Screen, Esq., Javier Soto,
Esq., and Alicia Valle, Esq. Finally, Rachelle Cedeno, Victoria Frigo, Michael
Murawski, Miriam Ramos, Rodzandra Sanchez, Robert Thompson and Ardyth Walker,
employees of the Ethics Commission, deserve praise for lending the necessary support to
the EIA Task Force.
Robert Meyers, Executive Director
Miami-Dade Commission on Ethics and Public Trust
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I. INTRODUCTION
During the past decade, Miami-Dade County has made substantial commitments
to ethics education and ethics enforcement, primarily by supporting the work of the
Miami-Dade Commission on Ethics and Public Trust. Local government officials and
employees are subject to the State Ethics Code, Florida Statutes Chapter 112. However,
in 1996 the voters of Miami-Dade County approved a ballot question directing the
County Commission to adopt a local ethics ordinance and create an independent local
ethics commission. The Commission on Ethics derives its powers from an enabling
ordinance, amended on several occasions since the Ethics Commission's inception. I
Some of the amendments have been quite dramatic, such as granting the Ethics
Commission the authority to self-initiate complaints, whereas other changes were much
more pedestrian. Although no scientific study was ever undertaken, media accounts tend
to indicate that public sentiment appears to hold that the Ethics Commission lacks the
tools to restore public confidence and trust in local government officials and institutions;
a responsibility entrusted to the Ethics Commission when it was created. Although it is
doubtful that anyone agency no matter how powerful could ever achieve this lofty goal,
the Ethics Commission's effectiveness in part is limited because of two distinct factors:
1) a countywide ethics ordinance ladened with loopholes and 2) sanctions that can only
be described as inadequate to effectively punish offenders or deter potential wrongdoers.
Another factor which seems to lend to the perception that the Ethics Commission is not
sufficiently and effectively deterring wrongdoing is a lack of understanding of the
Commission's role in the process of government oversight.
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Given this backdrop, a task force comprised of former judges, local government
attorneys, prosecutors, and ethics and government professors was created to study the
state of ethics in Miami-Dade County, paying particular attention to the powers, duties
and responsibilities of the Ethics Commission and the legal standards currently in effect
for our local public servants. The Task Force entitled the Ethics, Integrity and
Accountability Task Force (commonly referred to as the EIA Task Force) began its work
in May 2007 and had a self-imposed initial deadline of the end of the calendar year. In
light of the extensive work undertaken and the work of the Charter Review Task Force,
the EIA Task Force extended the deadline and the report that follows is the result of
much research, discussion and debate. The Task Force held general meetings and also
established subcommittees to look at specific issues. Each of the foregoing
recommendations was put to a vote of the full committee. Some passed unanimously and
others by a simple majority.
The next step in this process is to seek feedback from other stakeholders who did
not directly participate in the work of the task force but will playa vital role in deciding
the eventual outcome of these recommendations. The preliminary recommendations
were presented to the members of the Miami-Dade Commission on Ethics and Public
Trust at two public meetings, February and March of 2008. The Ethics Commission
commended the Task Force for its work and concurred with the recommendations
contained in the report. The recommendations have also been circulated to the Miami-
Dade League of Cities and its membership is likely to react to the recommendations over
the next several months, The provisions were forwarded to the County Attorney's Office
I Miami-Dade County Ordinance 97-105 was adopted by the Board of County Commissioners after the
voters approved an independent ethics commission on March 12, 1996. Ord. Nos. 98-94, 99-149, 01-23,
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and to the city attorney's offices of the affected municipalities, Moreover, the
recommendations have been distributed to the Board of County Commissioners, which
will be the governing body responsible for conducting one or more public meetings on
the general subject of ethics reform and the specific recommendations advanced by the
Task Force. The Task Force is cautiously optimistic that the community-at-Iarge will be
mobilized to find the time and marshal its resources to appear at the scheduled public
hearings to engage the elected officials in an open and vigorous debate about the
importance of the highest ethical standards of conduct for our local public servants and
give the Ethics Commission the tools to achieve its mission.
06-149 amended the 1997 enabling ordinance.
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II. EIA TASK FORCE RECOMMENDATIONS
The recommendations are divided into five sections. The first four sections are
recommendations adopted by the Task Force and the final section represents a separate
recommendation supported the Miami-Dade Commission on Ethics and Public Trust.
The Task Force recommendations are organized as follows: 1) The County Conflict of
Interest and Code of Ethics Ordinance (Chapter 2-11.1); 2) Commission on Ethics and
Public Trust Enabling Ordinance (County Code Section 2-1066 et. seq.; 3) Campaign
Finance Laws and 4) Citizens' Bill of Rights. Section Five consists of the Ethics
Commission's recommendation.
1) COUNTY CONFLICT OF INTEREST AND CODE OF ETHICS
ORDINANCE
Chapter 2-11.1 establishes the minimum standards of ethical conduct and behavior for all
County and municipal officials and officers, autonomous, quasi-judicial and advisory
personnel, department personnel and employees.2 There are twenty-four provisions
contained in this ordinance that current and former local public servants are expected to
adhere to as public servants in Miami-Dade County. The bulk of the Task Force's work
was spent examining this ordinance and the recommendations listed below close some of
the loopholes and remove some of ambiguities that current exist within the law,
1. Application of the Ordinance
Section 2-11.1(b)
Recommendation: The county ethics ordinance should apply to independent
contractors, consultants, contract employees and part-time employees.
Rationale: The County and the municipalities at times will rely on independent
contractors and consultants to perform the work of local government employees.
Sometimes a local government employee will sit side-by-side with an independent
contractor or part-time employee performing the same job or duties. It is not
unusual for some municipalities to outsource most of a department's work.
Independent contractors and consultants, especially those standing in the shoes of
local government having the authority to obligate public funds or otherwise affect
public policy ought to be held to the same ethical standards as their public sector
counterparts. One's status should be immaterial; rather the ethics ordinance
should cover any individual acting on behalf of his/her local government in an
official capacity. Similarly, contract employees and part-time employees are no
2 The county's Conflict ofInterest and Code of Ethics Ordinance was initially adopted in ]972 (Ord, No,
72-82. Since the Miami-Dade Commission on Ethics has existed, the county ethics ordinance has been
amended twenty-five times. (See Ord. Nos. 99-],99-2,99-] 24,99- ]45,99-150; 00-],00-] 9,46, ]49, 15];
0]-93,0]-]49,0]-150,0]-162,0]-]99; 02-03; 03-73,107, ]40; 04-55, 04-77, 04-] ]9, 04-204; 05-7] and
06-]48)
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less likely to have conflicts of interests simply because they do not occupy full-
time, permanent positions with these governments.
2. Definition of Financial Interest
Section 2-11.1(b)(8)
Recommendation: The definition of financial interest should eliminate the
term "controlling" and change it to a "significant financial interest" and the
level of ownership to hold a significant financial interest should be reduced
from ten (10) per cent to one (1) per cent. Furthermore, a significant
financial interest would also exist if it exceeded one (1) per cent of the
individual's annual taxable income, if the employee or immediate family
member held leadership position or any paid employment with a for-profit,
not-for-profit or charitable organization.
Rationale: The current law only bars an employee or the employee's immediate
family from transacting business with his/her government if the employee works
in the department which will enforce, oversee or administer the contract. A
conflict only applies when the employee or immediate family member holds a ten
percent interest or more of the company or firm seeking to enter into the contract
and. Furthermore, there is no bar against local government employees or their
immediate families who control non-profits and other organizations from entering
into contracts with the employee's department because the controlling financial
interest test is not applicable in these settings. Finally, the current definition of
financial interest does not take into account that an immediate family member
may hold a position of influence in a private firm without necessarily having a
"controlling financial interest." Thus, the reason for redefining financial interest
is to acknowledge that the current standard is much too narrowly drawn,
3. Definition of Immediate Familv
Section 2-11.1(b )(9)
Recommendation: The definition of immediate family would be extended to
include relatives generally covered by the state law and the county code.
Rationale: The Task Force is concerned about the perception of bias and
favoritism that may be perpetuated by awarding a contract to the business of a
family member or relative who is not specifically covered by the current
definition (spouse, parent, or child). A more expansive definition of immediate
family may reduce the claim of bias or favoritism in contracting and procurement
decisions.
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4. V otim! Conflicts
Section 2-11.1(d)
Recommendation: A voting conflict is created if a matter is presented to a
governing body, quasi-judicial board or advisory board if a member has, or
had during a period of 18 months prior to the scheduled vote, any of the
following relationships with any of the persons or entities which would be or
might be affected by the action of the body or the board: officer, director,
partner, of counsel, consultant, vendor, employee, fiduciary or beneficiary.
Additionally, a member of a governing board, quasi-judicial board or
advisory board who has any contractual relationship, actual or foreseeable
(within eighteen months of government action), with a person or entity which
would be or might be affected by the action of the governing board or the
board will be presumed to have a voting conflict.
A member of advisory and quasi-judicial board will be deemed to have a
voting conflict if the member has a special relationship with any of the
persons or entities appearing before the board or if the board member will
be directly affected by the action of the board on which the member serves.
Rationale: The voting conflict section is deficient in that it permits an elected
official or board member to vote on a matter involving a former business partner
immediately after the business relationship has ended. The proposed change
would establish a cooling off period for eighteen (18) months before an elected
official or board member could participate in and vote on an item that could inure
to the benefit of one's former business partner. The purpose here is to eliminate
the impression that a prior or contemplated business relationship would influence
the outcome of a vote.
The enumerated relationships that appear in the current ethics code must be
expanded to include a catch-all provision to prevent elected officials and board
members from participating in and voting on any matters where there is any type
of contractual relationship, actual or foreseeable.
The current voting conflict standard for advisory and quasi-judicial board
members is far too lenient. The proposed standard, which acknowledges that
important matters are heard by advisory and quasi-judicial boards, would create a
voting conflict if a board member could be directly affected by the outcome of the
decision or had one of the enumerated relationships described above.
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5. Gifts
Section 2-11.1(e)
Recommendation: No local public official, officer or employee shall accept a
gift valued over $100. No local public official, officer or employee shall
accept any gift, regardless of value, from any current or potential vendor,
service provider, bidder, proposer, lobbyist or consultant.
Rationale: The greatest flaw of the current gift rules is that no cap is placed on
the size of a gift that a local public servant can accept so long as the gift is
properly reported. One is hard-pressed to understand why such a policy has been
in place for so many years. The idea that local government officials can legally
accept lavish gifts fuels the perception that their judgment could be compromised
by accepting gifts from individuals or entities having a business relationship with
government. Therefore, the optimal method to negate this perception is to outlaw
gifts from commercially-interested parties. Gifts from other individuals should be
limited to no more than $100.
6. Exploitation of Official Position
Section 2-11.1(g)
Recommendation: The use of letterhead is limited to official government
business.
Rationale: The Task Force believes that public resources should only be used to
further the legitimate interest of the governmental entity and should not be
utilized for private purposes. Often times, the use of official letterhead will
convey the impression that the government endorses the position taken by the
official sending the letter/correspondence, This recommendation reinforces the
principle that government resources are only supposed to be used for official
public business.
7. Two Year Rule
Section 2-11.1(q)
Recommendation: Community council members shall be prohibited for a
period of two year after County service has ceased from lobbying or
appearing before the community council upon which the member served.
Former government officials and employees who become employed by non-
profit entities or educational entities will no longer be exempt from the Two
Year Rule.
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Rationale: The purpose behind the Two Year Rule is to guard against former
officials or employees from using their influence to receive special or favorable
treatment from their former public employers. The goal should be that all parties
operate on a level playing field. Those recently separated from government are
presumed to have an advantage over others if they are allowed to lobby their
former colleagues immediately after they leave government service. This
recommendation expands the reach of the Two Year Rule to include lobbying
before one's community council and lobbying on behalf of other entities that are
seeking a benefit/contract. The government grant process is a competitive one,
and many deserving charitable organization compete for limited resources. The
commitment to fund a particular agency should not be based on the ability of a
former employee to utilize his/her contacts or connections within the public
agency to secure benefits for the new employer.
8. Lobbvin2
Section 2-11.1(s)
Recommendation: Lobbyists and their principals shall submit to the Clerk a
joint affidavit signed by the lobbyist and the principal disclosing the terms
and amount of compensation to be paid by each principal to the lobbyist for
such lobbying activities.
The lobbyist, the lobbyist's firm, employer, or former employer shall be
jointly and severally liable if a lobbyist incurs a fine for failing to timely file
an expenditure report.
Failure by local government officials, officers and employees to make diligent
inquiry to insure that person lobbying is properly registered shall constitute
a violation and subject that person to a fine.
Rationale: The county ethics ordinance specifically outlaws success fees and
contingency fees, arrangements which may introduce an element of corruption
into the system. The Ethics Commission has no practical method for reviewing
the arrangements between lobbyists and principals without disclosures by the
parties to the transaction. To enable the Ethics Commission to assure the public
that lobbyists are not being paid success fees or contingency fees, the retainer
agreement should be provided at the time of registration.
Lobbyists are required by the ethics ordinance to file an expenditure report in
connection with any expenses associated with their lobbying activities. When
lobbyists fail to timely file, they often claim they never received notice from the
Clerk and blame the principal or their former employer for not forwarding the
notices from the Clerk's Office. In order to rectify this situation, the firm,
employer or former employer of the lobbyist ought to be responsible for paying
the fines incurred when the lobbyist is not at fault.
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Local elected officials and personnel are precluded from meeting with
unregistered lobbyists. The Task Force supports the policy of mandating that
officers and employees make diligent inquires about a lobbyist's status and the
failure of the public official to undertake some reasonable efforts to ascertain the
lobbyist's registration status should subject such personnel to an ethics violation.
9. Cone of Silence
Section 2-11.1(t)
Recommendation: Verbal communications between a selection committee
member and County staff or between bid evaluation staff and County staff
will be permitted in limited circumstances, primarily in cases where staff has
unique technical knowledge regarding the subject of the solicitation in order
to exercise due diligence and develop recommendations for award in the best
interest of the County.
Rationale: There are times when a staff possesses unique technical knowledge
regarding the subject of the solicitation or knowledge of a proposer's past
performance which staff would like to share with bid evaluation staff or a
selection committee. Under the current standards, the Cone of Silence would be
breached if such conversations took place. The recommendation would create an
exception to the Cone of Silence to allow communications for the limited
purposes described above,
10. Fines and Sanctions
Section 2-11.1(bb)
Recommendation: The Ethics Commission may double the applicable fine
when intentional wrongdoing is found.
When a finding of an intentional violation against an employee is made, the
Ethics Commission may recommend suspension or termination of the
employee. When a finding of an intentional violation of misfeasance or
malfeasance is made against a local elected official, the Ethics Commission
may recommend suspension or removal from office by notifying the person
or legal entity with the lawful authority to take such action. When a finding
of an intentional violation of a quasi-judicial or advisory board member is
made, the Ethics Commission may recommend removal from the board by
notifying the person or legal entity with the lawful authority to effectuate
removal.
The Ethics Commission may order disgorgement of any profit received as a
result of a party's violation of the provisions of the 2-11.1.
12
The Ethics Commission may be permitted to recoup actual investigative and
administrative costs not to exceed ten thousand dollars per violation where
an intentional violation has been found.
Rationale: Critics of the Ethics Commission point to the inadequate penalties the
Ethics Commission can impose against violators of the ethics ordinance. The fine
structure needs to be revamped to give the Ethics Commission the ability inflict a
larger fine against wrongdoers where intentional violations are found. In effect,
by doubling the fine from $500 to $1,000 for the first count and from $1,000 to
$2,000 for each subsequent count, proportionality is achieved and deterrence may
result.
Local government officials, officers, appointed board members and employees
who commit serious breaches of the public trust should lose their right to continue
to serve the public. This Task Force recommendation would give the Ethics
Commission the right to forward its final order to the appropriate individual or
entity with the authority to take disciplinary action and ask such party to consider
the Ethics Commission's finding and take whatever action is deemed appropriate
under the circumstances.
Furthermore, offenders who profit from their unethical behavior should be
compelled to relinquish these profits. Without the power to disgorge profits when
necessary, the offenders may end up profiting from their unethical enterprise.
I3
2) COMMISSION ON ETHICS AND PUBLIC TRUST ENABLING ORDINANCE
Pursuant to the approval of the voters to amend the Miami-Dade County Home Rule
Charter in 1996 to create an independent countywide ethics commission with advisory
and quasi-judicial powers, the Board of County Commissioners enacted legislation to
enable the Ethics Commission to exercise all the powers contained therein. On several
occasions, the County Commission has reviewed the ordinance and strengthened it to
facilitate the work of the Ethics Commission. The Task Force recommends further
changes should be adopted as follows,
1. Investieations bv the Advocate
Section 2-1074(a)(I)
Recommendation: The Advocate shall have the authority to initiate and
undertake investigations of any matter under the jurisdiction of the
Ethics Commission regardless of whether a complaint has been filed.
Rationale: The current requirement that the Advocate, Inspector General or
State Attorney file a complaint before conducting an investigation is simply
illogical. In effect, this means that investigations should be undertaken only
after formal complaints are filed with the Ethics Commission. Such an
approach to enforcement of the ethics ordinance defies logic and is neither
rational nor practical and must be changed, Moreover, this revision will
afford greater protection to an individual under investigation and creates less
of a stigma.
2. Hearine Examiners
Section 2-1074(b)
Recommendation: The Ethics Commission may conduct the Probable
Cause determination or refer the determination to a hearing examiner.
In the event of a referral, the hearing examiner shall preside over the
proceeding, closed to the public, and issue the Probable Cause
determination.
Once probable cause is found, the initial public hearing will be heard by
an appointed hearing examiner. The Ethics Commission shall convene a
second public hearing to review the recommended order of the hearing
examiner and give the parties a limited opportunity to present arguments
supporting or opposing the recommendation of the hearing examiner.
14
Rationale: The members of the Ethics Commission meet on a regular basis
and handle a full agenda consisting of complaints, appeals, request for
opinions and other policy matters. On occasion, a complaint may be time-
sensitive and it would be desirable to refer the probable cause determination to
a hearing examiner who might be in a better position to hear the matter on an
expedited basis.
Public hearings lasting a full day or longer may place too heavy a burden on
the Ethics Commission - a board of five volunteers, A related concern is the
potential difficulty in convening the same members of the Ethics Commission
to preside over a lengthy public hearing. Utilizing hearing examiners at the
initial public hearing conquers both problems and still affords the parties an
opportunity to appear before the Ethics Commission after the hearing
examiner furnishes his/her recommendation.
3. Subpoenas
Section 2-1074(g)
Recommendation: The Ethics Commission through the Office of the
Advocate shall have power to subpoena witnesses and require the
production of records concerning any investigation or enforcement action
within the jurisdiction of the Ethics Commission. When necessary to
properly respond to a request for opinion, the general counsel to the
Ethics Commission may request a subpoena from the Ethics Commission.
Rationale: The Office of the Advocate needs the flexibility to subpoena
witnesses and require the production of records without delay in some
investigations. The current system requires the Advocate to wait until the
Ethics Commission convenes a meeting before a subpoena can be requested
and offers no additional checks and balances than the proposed
recommendation giving the Advocate the authority to subpoena records or
testimony at his discretion, Furthermore, the proposed changes would mirror
the process of issuing subpoenas followed by the Office of Inspector General.
There are circumstances under which legal counsel to the Ethics Commission,
in order to prepare a legal opinion, requests additional information from the
requester who refuses to provide the requested information. This change
would specifically authorize legal counsel to request a subpoena from the
Ethics Commission in those rare cases when a party requesting an opinion
refuses to cooperate.
15
3) CAMPAIGN FINANCE REFORM
The EIA Task Force took notice of state laws and local ordinances that impose restraints
against special classes of campaign contributors and fundraisers who regularly interact
with government.3 Vendors, lobbyists and real estate developers are generally invested in
the affairs of local government and many also understand the benefit of becoming active
in the political campaigns of individuals running for office. The recommendations
endeavor to accomplish two objectives: 1) Prohibit contributions from a class of
contributors and fundraisers who have a direct financial interest in the actions of the
public officials whom they help elect and 2) Prohibit the candidates from accepting
campaign contributions or other forms of assistance from the abovementioned parties.
The public needs assurances that local elected officials will not favor special interests that
have assisted them in their bid to gain elective office at the expense of others who may
have chosen not to offer the same level or type of support.
1. No vendor shall give a campaign contribution directly or indirectly to a
candidate or to the campaign committee of a candidate. A vendor who
violates this provision shall be disqualified from serving as vendor for a
period of 12 months. No real estate developer shall give a campaign
contribution directly or indirectly to a candidate or to the campaign
committee of a candidate and a real estate developer may not make
contribution within 12 months after the termination of its status as a real
estate developer. Violations of this section shall subject the real estate
developer to a fine.
Rationale: If a ban on contributions from vendors and real estate developer is to
have any meaning, the vendors/real estate developers must face serious
consequences for violating this ban. Disqualification of the vendor for a limited
period of time accomplishes this purpose, as does imposing a substantial fine on a
real estate developer. Conditions may exist for limited waiver.
2. No candidate or campaign committee of a candidate shall deposit into the
candidate's campaign account any contribution directly or indirectly from a
vendor, lobbyist or real estate developer. Violations of this section shall
subject the candidate to a fine.
3 Cal. Gov. Code Section 85702 (2008); KRS Section 6.811 (6) (2007) and S.c. Code Section 2-17-80 (A)
(2007) have banned lobbyists from contributing to the campaigns of whom they may lobby at all times.
S.c. Code Section 8-13-1342 (2007) bans any party or corporation awarded a no-bid contract with the state
or any of its political subdivisions from contributing to a public official who was in a position to act on the
contract award. The states of Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Oregon, Texas and
Virginia have banned contributions from licensees such as gambling or casino licensees, lottery vendors
and contractors and horse racing organizations. Closer to home, the City of Miami Beach enacted Sections
2-487 to 490 in 2003, amended in 2005, banning contributions from lobbyists, contractors and real estate
developers. Lastly, Miami-Dade County implemented a ban on all corporate contributions. (See Ord. No.
98-183, later repealed by Ord. No. 05-214)
16
Rationale: The candidates must exercise due diligence when receiving campaign
contributions and must be punished for accepting campaign contributions from
outlawed sources,
3. A person or entity other than a vendor. who directly or indirectly makes a
contribution to candidate who is elected to office shall be disqualified for a
period of 12 months following the swearing in from serving as a vendor.
A person other than a lobbyist on a procurement issue who directly or
indirectly solicits for or makes a contribution to a candidate who is elected to
office shall be disqualified for a period of 12 months from lobbying.
A person or entity other than a real estate developer who directly or
indirectly makes a contribution to a candidate who is elected shall be
disqualified for a period of 12 months from becoming a real estate developer.
Rationale: This recommendation covers the person or entity that gives a
contribution or solicits contributions and within a relatively short timeframe
wishes to serve as a vendor, real estate developer or a lobbyist appearing before
local government. The recommendation promotes the policy that a political
contribution will have no bearing on the party or entity's ability to serve as a local
government vendor or real estate developer and removes the charge that a
lobbyist's success is connected to his/her willingness to make political
contributions or raise campaign funds for candidates.
4. No lobbyist on a present or pending solicitation shall solicit a campaign
contribution or give a campaign contribution directly or indirectly to a
candidate or the campaign committee of a candidate. No lobbyists on a
pending application on a real estate development matter shall solicit for or
give a campaign contribution directly or indirectly to a candidate.
Rationale: The perception is that lobbyists who make political contributions to
campaigns and also solicit campaign contributions for campaigns earn special
privileges when appearing before local government bodies, comprised of
members they helped elect. Lobbyists who have not given campaign
contributions or soliciting contributions for these candidates will not be restricted
from representing clients before local governments. Those who have decided to
play an active role in the campaigns of local candidates will be barred from
appearing before the boards made up of candidates they aided.
17
4) CITIZENS' BILL OF RIGHTS
The Miami-Dade Commission on Ethics and Public Trust part of the Miami-Dade County
Home Rule Charter as incorporated into the Citizens' Bill of Rights. The Ethics
Commission was given the authority to interpret, render advisory opinions and enforce
the Citizens' Bill of Rights.4 When the County Commission established the Ethics
Commission by ordinance, it failed to identify the penalties the Ethics Commission could
impose when it found violations of the Citizens' Bill of Rights. Therefore, the Task
Force is recommending that specific penalties be delineated to allow for enforcement of
the Bill of Rights.
CBR Violations
Recommendation: The Ethics Commission shall have the authority to impose non-
monetary sanctions, included but not limited to a public reprimand or letter of
instruction for violations of the Citizens' Bill of Rights.
Rationale: The ballot question presented to the Miami-Dade County electorate asked
whether they supported an independent ethics commission that would be empowered to
enforce the Citizens' Bill of Rights. The voters responded in the affirmative, yet the
Ethics Commission currently has no explicit penalties it can apply to violations of the
Citizens' Bill of Rights. In order for the Ethics Commission to carry out the wishes of
the electorate and enforce the Citizens' Bill of Rights, the sanctions described above
should be granted.
4 The powers of the Miami-Dade County Commission on Ethics and Public Trust are described in Section
A (17) of the Citizens' Bill of Rights.
18
-
5) RECOMl\1ENDATION BY THE MIAMI-DADE COMMISSION ON
ETHICS AND PUBLIC TRUST
Pursuant to Section 2-11.1(s)(6), all lobbyists are required to submit to the Clerk of
the Board of their respective governments a signed statement detailing all lobbying
expenditures for the preceding calendar year. Any lobbyists who fail to timely file an
expenditure report may be assessed a fine of fifty dollars per day for reports filed
after the due date. The clerks are responsible for notifying the Commission on Ethics
of the failure of a lobbyist to file a report and/or pay the assessed fines after
notification. A lobbyist may appeal a fine and may request a hearing before the
Ethics Commission, The Ethics Commission has the authority to waive the fine, in
whole or in part, based on good cause shown. Over the years enforcing this ordinance
provision, the Ethics Commission finds two trends worth noting: 1) Close to one
hundred percent of the lobbyists who file expenditure reports indicate lobbying
expenditures of zero and 2) An overwhelming majority of those requesting appeals
before the Ethics Commission receive either a full or partial waiver of their fines
based by on good cause shown.
1. Expenditure Reports
Section 2-11.1(s)
Recommendation: Eliminate the filing of an expenditure reporting form for
lobbyists with no expenditures.
Rationale: There is little to be gained compelling lobbyists to submit forms
detailing their expenditures connected to their lobbying activities when practically
all of the lobbyists report no expenditures on the forms filed with the respective
clerks. Therefore, the provision should be amended to require the filing of an
expenditure report only in instances where lobbyists have expenditures in excess
of twenty-five dollars in anyone category. The Ethics Commission sees no
benefit in sifting through hundreds of forms where no expenditures are listed.
Furthermore, such a change will reduce the number of appeals filed with the
Ethics Commission, freeing up space on the agendas of the Ethics Commission to
tackle more pressing issues.
19
..
III. CONCLUSION
Achieving higher ethical benchmarks through legislation reinforces a
government's commitment to the seminal values of public service - integrity, openness,
transparency and accountability. It also offers reassurances that public servants will carry
out their obligations to promote the health, safety and health of the community above
self-interest.
The Miami-Dade Commission on Ethics and Public Trust was created in the mid-
1990s in response to a series of scandals that caused many to question the integrity of
both the local governmental decision-making process and the electoral process. Having
the Ethics Commission on the scene for the past decade has given life to the previously-
dormant county ethics code and has proven that enforcing local ethical standards make a
difference. The purpose behind the creation of the Task Force was to secure the input of
local experts to evaluate both the structure and functions of the Miami-Dade Ethics
Commission and the laws the Ethics Commission is mandated to interpret and enforce.
After careful reflection, the Task Force determined that some of the existing
policies and practices do not appear to be in the public interest and must be revised.
Further, the Task Force found the Miami-Dade Commission on Ethics must be provided
with all the necessary means to effectively enforce the laws on the books in order to
fulfill its mission as guardians of the public trust. Finally, the Task Force concluded that
campaign finance reforms should be adopted to curb the impact that special interests have
on the local political process to eliminate the perception that campaign contributors
transacting business with Miami-Dade County have decided advantages over those who
refuse to "pay to play."
20
'"
MEMORANDUM
Agenda Item No. 4(J)
TO: Honorable Chairman Dennis C. Moss
and Members, Board of County Commissioners
DATE: June 30, 2009
FROM: R. A. Cuevas, Jr.
County Attorney
SUBJECT: Ordinance relating to Conflict
of Interest and Code of Ethics
Ordinance
The accompanying ordinance was prepared and placed on the agenda at the request of Prime
Sponsor Commissioner Rebeca Sosa.
~ -",7
~i
~
R. A. Cu s, Jr. }
County Attorney
RAC/jls
MEMORANDUM
(Revised)
TO:
Honorable Chairman Dennis C. Moss DATE:
and Members, Board of County Commissioners
June 30, 2009
FROM:~S~
County Attor;Jy
SUBJECT: Agenda Item No. 4(J)
Please note any items checked.
-r
L
"4-Day Rule" ("3-Day Rule" for committees) applicable if raised
6 weeks required between first reading and public hearing
4 weeks notification to municipal officials required prior to public
hearing
Decreases revenues or increases expenditures without balancing budget
Budget required
Statement of fiscal impact required
Bid waiver requiring County Mayor's written recommendation
Ordinance creating a Dew board requires detailed County Manager's
report for public hearing
Housekeeping item (no policy decision required)
No committee review
..-.,
\
0--
Approved
Veto
Override
-
Mavor
Agenda Item No. 4(1)
6-30-09
ORDINANCE RELATING TO CONFLICT OF INTEREST AND
CODE OF ETHICS ORDINANCE ("ETHICS ORDINANCE");
AMENDING DEFINITION OF IMMEDIATE F AMIL Y TO
INCLUDE DOMESTIC PARTNER, STEPCHILDREN AND
STEPPARENTS; AMENDING DEFINITION OF FINANCIAL
INTEREST AND EMPLOYEES; PROVIDING FOR
DEFINITION OF DOMESTIC PARTNER AND CONTRACT
STAFF; PROVIDING THAT CONTRACT STAFF MUST
COMPLY WITH CERTAIN PROVISIONS OF THE ETHICS
ORDINANCE; PROHIBITING COUNTY COMMISSIONERS,
MAYOR, QUASI-JUDICIAL PERSONNEL AND ADVISORY
PERSONNEL FROM PARTICIPATING FOR SPECIFIED TIME
PERIOD IN ANY MATTER REGARDING PRIOR EMPLOYER
OR ENTITY IN WHICH OFFICIAL HELD A FINANCIAL
INTEREST; PROVIDING THAT COMMISSION STAFF MAY
SOLICIT GIFTS ON BEHALF OF NONPROFIT
ORGANIZATIONS UNDER CERTAIN CIRCUMSTANCES;
PROVIDING THAT GOVERNMENTAL LETTERHEAD MAY
ONL Y BE USED FOR OFFICIAL PUBLIC BUSINESS;
PROHIBITING FORMER MEMBER OF COMMUNITY
COUNCIL FROM APPEARING BEFORE COMMUNITY
COUNCIL FOR PERIOD OF TWO YEARS AFTER SERVICE;
DELETING EXEMPTION THAT PROVIDES THAT FORMER
COUNTY OFFICIALS, DEPARTMENTAL PERSONNEL AND
EMPLOYEES ARE NOT PROHIBITED FROM LOBBYING ON
BEHALF OF GOVERNMENTAL ENTITIES, NONPROFIT
ENTITIES OR EDUCATIONAL INSTITUTIONS WITHIN THE
TWO- YEAR PERIOD AFTER COUNTY SERVICE;
PROVIDING THAT DEPARTMENTAL PERSONNEL AND
EMPLOYEES WHO WERE PREVIOUSLY EMPLOYED BY A
NOT-FOR-PROFIT ENTITY ARE PRECLUDED FOR
SPECIFIED PERIOD OF TIME FROM PERFORMING
CONTRACT-RELATED DUTIES REGARDING THAT
ENTITY; AMENDING JURISDICTION OF ETHICS
COMMISSION TO INCLUDE CONTRACT STAFF AND
CONSULTANTS; INCREASING FINES WHERE PERSON
INTENTIONALL Y VIOLATES ETHICS ORDINANCE-
,
PROVIDING SEVERABILITY, INCLUSION IN THE CODE,
AND AN EFFECTIVE DATE
3
...
Agenda Item No. 4(J)
Page 2
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF
MIAMI-DADE COUNTY, FLORIDA:
Section 1,
Section 2-11.1 of the Code of Miami-Dade County, Florida, is hereby
amended to read as follows: 1
Sec.2-11.1. Conflict of Interest and Code of Ethics
Ordinance.
(a) Designation. This section shall be designated and
known as the "Miami-Dade County Conflict of Interest and Code
of Ethics Ordinance." This section shall be applicable to all County
personnel as defined herein, and shall also constitute a minimum
standard of ethical conduct and behavior for all municipal officials
and officers, autonomous personnel, quasi-judicial personnel,
advisory personnel, departmental personnel and employees of
municipalities in the County insofar as their individual
relationships with their own municipal governments are concerned.
References in the section to County personnel shall therefore be
applicable to municipal personnel who serve in comparable
capacities to the County personnel referred to.
(b) Definitions. For the purposes of this section the
following definitions shall be effective:
(1) The term "Commissioners" shall refer to the Mayor
and the members of the Board of County Commissioners as duly
constituted from time to time.
(2) The term "autonomous personnel" shall refer to the
members of semi-autonomous authorities, boards, and agencies as
are entrusted with the day to day policy setting, operation and
management of certain defined County functions or areas of
responsibility, even though the ultimate responsibility for such
functions or areas rests with the Board of County Commissioners.
(3) The term "quasi-judicial personnel" shall refer to
the members of the Community Zoning Appeals Board and such
Words stricken through and/or [[double bracketed]] shall be deleted. Words underscored
and/or >>double arrowed<< constitute the amendment proposed. Remaining provisions are now
in effect and remain unchanged.
~
Agenda Item No. 4(1)
Page 3
other boards and agencies of the County as perform quasi-judicial
functions.
(4) The term "advisory personnel" shall refer to the
members of those County advisory boards and agencies whose sole
or primary responsibility is to recommend legislation or give
advice to the Board of County Commissioners.
(5) The term "departmental personnel" shall refer to the
Manager, his >>or her<< department heads, the County Attorney
and all Assistant County Attorneys.
(6) The term "employees" shall refer to all other
[[salaried]] personnel employed by the County.
(7) The term "compensation" shall refer to any money,
gift, favor, thing or value or financial benefit conferred in return
for services rendered or to be rendered.
(8) The term "[[controlling]] financial interest" shall
refer to ownership, directly or indirectly, [[to ten (10)]] >>of one
W<< percent or more of the outstanding capital stock in any
corporation >>~<< [[efll a direct or indirect interest of [[ton (10)]]
>>one (1)<< percent or more in a firm, partnership, or other
business entity >>or where one (1) percent or more of a person's
annual taxable income is attributable to income derived from an
entity or other person.<<
(9) The term "immediate family" shall refer to the
spouse, >>domestic partner.<< parents >>, stepparents<< [[and]]
children[["ll >>and stepchildren<< of the person involved.
(10) The term "transact any business" shall refer to the
purchase or sale by the County of specific goods or services for a
consideration.
(11) The term "Ethics Commission" shall refer to the
Miami-Dade County Commission on Ethics and Public Trust.
>>@ The term "domestic partner" shall mean a person
who is a party to a valid domestic partnership relationship as
described in section 1IA-72(b)(1), (2), (3), (4) and (6) of the Code.
(] 3) The term "contract staff' shall mean any employee of
an independent contractor. subcontractor (of any tier). consultant
s-
....
Agenda Item No. 4(1)
Page 4
or sub-consultant (of any tier), designated ina contract with the
County as a person who shall be required to comply with the
provisions of Subsections 2-11.1 (g), (h), (i), (1), (m), (n) and (0) of
the Conflict of Interest and Code of Ethics Ordinance.<<
(c)
County.
Prohibition on transacting business within the
(1) No person included in the terms defined in
subsection (b)(1) through (6) and in subsection (b)(9) shall enter
into any contract or transact any business, except as provided in
subsections (c)(2) through (c)(6) in which he or she or a member of
his or her immediate family has a financial interest, direct or
indirect, with Miami-Dade County or any person or agency acting
for Miami-Dade County, and any such contract, agreement or
business engagement entered in violation of this subsection shall
render the transaction voidable. Willful violation of this subsection
shall constitute malfeasance in office and shall effect forfeiture of
office or position,
(2) County employees' limited exclusion from
prohibition on contracting with the county. Notwithstanding any
provision to the contrary herein, subsections (c) and (d) shall not
be construed to prevent any employee as defined by subsection
(b)(6) [excluding departmental personnel as defined by subsection
(b)(5)] or his or her immediate family as defined by subsection
(b)(9) from entering into any contract, individually or through a
firm, corporation, partnership or business entity in which the
employee or any member of his or her immediate family has a
[[ controlling]] financial interest, with Miami-Dade County or any
person or agency acting for Miami-Dade County, as long as (1)
entering into the contract would not interfere with the full and
faithful discharge by the employee of his or her duties to the
County, (2) the employee has not participated in determining the
subject contract requirements or awarding the contract, and (3) the
employee's job responsibilities and job description will not require
him or her to be involved with the contract in any way, including,
but not limited to, its enforcement, oversight, administration,
amendment, extension, termination or forbearance. However, this
limited exclusion shall not be construed to authorize an employee
or his or her immediate family member to enter into a contract with
Miami-Dade County or any person or agency acting for
Miami-Dade County, if the employee works in the county
department which will enforce, oversee or administer the subject
contract.
~
Agenda Item No. 4(1)
Page 5
(3) Limited exclusion from prohibition on autonomous
personnel, advisory personnel and quasi-judicial personnel
contracting with county. Notwithstanding any provision to the
contrary herein, subsections (c) and (d) shall not be construed to
prohibit any person defined in subsection (b)(2), (b)(3) and (b)(4)
from entering into any contract, individually or through a firm,
corporation, partnership or business entity in which the board
member or any member of his or her immediate family has a
[[ controlling]] financial interest, with Miami-Dade County or any
person or agency acting for Miami-Dade County. However, any
person defined in subsection (b)(2), (b)(3) and (b)(4) is prohibited
from contracting with any agency or department of Miami-Dade
County subject to the regulation, oversight, management, policy-
setting or quasi-judicial authority of the board of which the person
is a member.
(4) Any person defmed in subsections (b)(2) through
(b)(4) and subsection (b)(6) shall seek a conflict of interest opinion
from the Miami-Dade County Commission on Ethics and Public
Trust (lithe Ethics Commission") prior to submittal of a bid,
response, or application of any type to contract with the County by
the person or his or her immediate family. A request for a conflict
of interest opinion shall be made in writing and shall set forth and
include all pertinent facts and relevant documents. If the Ethics
Commission finds that the requirements of this section pertaining
to exclusions for persons defined in subsections (b)(2) through
(b)(4) and subsection (b)(6) are not met and that the proposed
transaction would create a conflict of interest, the person defined in
subsections (b)(2), (b)(3), (b)(4) or (b)(6) may request a waiver
from the Board of County Commissioners within ten (10) days of
the Ethics Commission opinion by filing a notice of appeal to the
Ethics Commission. The Ethics Commission shall forward the
notice of appeal and its opinion and any pertinent documents to the
Clerk of the Board of County Commissioners (the "Clerk")
forthwith. The Clerk shall place the request on the commission
agenda for consideration by the Board. The Board of County
Commissioners may grant a waiver upon an affirmative vote of
two-thirds (2/3) of the entire Board of County Commissioners,
after public hearing, if it finds that the requirements of this
ordinance pertaining to the exclusion for a County employee from
the Code have been met and that the proposed transaction will be
in the best interest of the County. The Board of County
Commissioners may, as provided in subsection (c)(6), grant a
waiver to any person defined in subsection (b)(2) through (b)(4)
1
~
Agenda Item No. 4(1)
Page 6
regarding a proposed transaction. Such findings shall be included
in the minutes of the board. This subsection shall be applicable
only to proposed transactions, and the Board may in no case ratify
a transaction entered into in violation of this subsection.
If the affected person or his or her immediate family member
chooses to respond to a solicitation to contract with the County,
such person shall file with the Clerk a statement in a form
satisfactory to the Clerk disclosing the person's interest or the
interest of his or her immediate family in the proposed contract and
the nature of the intended contract at the same time as or before
submitting a bid, response, or application of any type to contract
with the County. Along with the disclosure form, the affected
person shall file with the Clerk a copy of his or her request for an
Ethics Commission opinion and any opinion or waiver from the
Board. Also, a copy of the request for a conflict of interest opinion
from the Ethics Commission and any opinion or waiver must be
submitted with the response to the solicitation to contract with the
County.
Notwithstanding any provision herein to the contrary, the County
and any person or agency acting for Miami-Dade County shall not
award a contract to any person defined in subsections (b )(2)
through (b)(4) and subsection (b)(6) or his or her immediate family
individually or through a firm, corporation, partnership or business
entity in which the person or any member of his or her immediate
family has a [[ controlling]] financial interest, unless the Ethics
Commission has rendered an opinion that entering the contract
would not be a conflict of interest or the Board waives the conflict
in accordance with the provisions of this ordinance.
The County Manager is directed to include language in all
solicitations for county contracts advising persons defined in
subsections (b )(2) through (b)( 4) and subsection (b)( 6) of the
applicable conflict of interest code provisions, the provisions of
this ordinance, including the requirement to obtain an Ethics
Commission opinion and make disclosure, and the right to seek a
legal opinion from the State of Florida Ethics Commission
regarding the applicability of state law conflict of interest
prOVISIOns.
(5) Nothing herein shall prohibit or make illegal (l) the
payment of taxes, special assessments or fees for services provided
by County government; (2) the purchase of bonds, anticipation
notes or other securities that may be issued by the County through
~
Agenda Item No. 4(1)
Page 7
underwriters or directly from time to time; (3) the participation of
the persons included in the terms defined in subsection (b)(1)
through (6), except for employees of the general services
administration and their "immediate family" as defined in (b )(9), in
the public auction process utilized by the County for the disposal
of surplus motor vehicles; (4) the purchase of surplus personal
property, pursuant to administrative order, by persons defined in
subsection (b)(l) through (6) and (9); (5) an application for direct
assistance from the Miami-Dade County Department of Housing
and Urban Development or an application to participate in a
program administered by the Department of Special Housing has
been submitted by an applicant who is a County person as defined
in subsection (b) and who would but for this section be eligible for
such assistance from said department; provided, however, that the
exception provided in this paragraph shall not extend to an
employee of the Miami-Dade County Department of Housing and
Urban Development or the Department of Special Housing who
participates in the administration of said programs; or (6) an[[d]]
application to participate in a single-family mortgage loan program
sponsored by the Housing Finance Authority of Miami-Dade
County, has been submitted by a County person as defined in
subsection (b), and would but for this section be eligible for
participation in said program; provided, however, that the
exception provided in this paragraph shall not extend to an
employee of the Miami-Dade County Finance Department who
participates in the administration of said single-family mortgage
loan program.
(6) Extension of waiver to county commiSSIOners,
autonomous personnel, quasi-judicial personnel, and advisory
personnel. The requirements of this subsection may be waived for
a particular transaction only by affirmative vote of two-thirds of
the entire Board of County Commissioners, after public hearing.
Such waiver may be affected only after findings by two-thirds of
the entire Board that:
(1) An open-to-all sealed competltlve bid has been
submitted by a County person as defined in subsection (b)(2), (3)
and (4), or
(2) The bid has been submitted by a person or firm
offering services within the scope of practice of architecture,
professional engineering, or registered land surveying as defined
by the laws of the State of Florida and pursuant to the provisions of
the Consultants' Competitive Negotiation Act, and when the bid
q
1
..:
Agenda Item No. 4(J)
Page 8
has been submitted by a County person defined In subsection
(b )(2), (3) and (4), or
(3) The property or services to be involved in the
proposed transaction are unique and the County cannot avail itself
of such property or services without entering a transaction which
would violate this subsection but for waiver of its requirements, or
(4) That the property or services to be involved in the
proposed transaction are being offered to the County at a cost of no
more than 80 percent of fair market value based on a certified
appraisal paid for by the provider, and
(5) That the proposed transaction will be to the best
interest of the County.
Such findings shall be spread on the minutes of the Board. This
subsection shall be applicable only to prospective transactions, and
the Board may in no case ratify a transaction entered in violation of
this subsection,
Provisions cumulative. This subsection shall be taken to be
cumulative and shall not be construed to amend or repeal any other
law pertaining to the same subject matter.
(d) Further prohibition on transacting business with
the County. No person included in the terms defined in subsections
(b)(1) through (6) and in subsection (b )(9) shall enter into any
contract or transact any business through a firm, corporation,
partnership or business entity in which he or any member of his
immediate family has a [[ controlling]] financial interest, direct or
indirect, with Miami-Dade County or any person or agency acting
for Miami-Dade County, and any such contract, agreement or
business engagement entered in violation of this subsection shall
render the transaction voidable. The remaining provisions of
subsection (c) will also be applicable to this subsection as though
incorporated herein by recitation.
Additionally, no person included in the term defined in subsection
(b)(1) shall vote on or participate in any way in any matter
presented to the Board of County Commissioners if said person has
any of the following relationships with any of the persons or
entities which would be or might be directly or indirectly affected
by any action of the Board of County Commissioners: (i) officer,
director, partner, of counsel, consultant, employee, fiduciary or
/0
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Agenda Item No, 4(J)
Page 9
beneficiary; or (ii) stockholder, bondholder, debtor, or creditor, if
in any instance the transaction or matter would affect the person
defined in subsection (b )(1) in a manner distinct from the manner
in which it would affect the public generally. Any person included
in the term defined in subsection (b)(l) who has any of the above
relationships or who would or might, directly or indirectly, profit
or be enhanced by the action of the Board of County
Commissioners shall absent himself or herself from the
Commission meeting during the discussion of the subject item and
shall not vote on or participate in any way in said matter.
> > Additionally, no person included in the term defined in
subsection (b)(1) who was previously employed by or held a
financial interest in a for-profit entity, not-for-profit entity,
partnership or other business entity (hereinafter "business entity")
shall, for a period of eighteen (18) months following termination of
his or her prior relationship with the business entity, vote on or
participate in any way in any matter relating to that entity. <<
(e) Gifts.
(1) Definition. The term "gift" shall refer to the transfer
of anything of economic value, whether in the form of money,
service, loan, travel, entertainment, hospitality, item or promise, or
in any other form, without adequate and lawful consideration,
Food and beverages consumed at a single sitting or meal shall be
considered a single gift, and the value of the food and beverage
provided at that sitting or meal shall be considered the value of the
gift.
(2) Exceptions. The provisions of subsection (e)(l)
shall not apply to:
a.
State law;
Political contributions specifically authorized by
b.
Gifts from relatives or members of one's household;
c,
Awards for professional or civic achievement;
d. Material such as books, reports, periodicals or
pamphlets which are solely informational or of an advertising
nature[[7]]>>~<<
e. Gifts solicited by County employees or
I (
Agenda Item No. 4(1)
Page 10
departmental personnel on behalf of the County in the performance
of their official duties for use solely by the County in conducting
its official business[[.,.]]>>~<<
f. Gifts solicited by Commissioners on behalf of the
County in the performance of their official duties for use solely by
the County in conducting its official business[[.,.]]>>~<<
g. Gifts solicited by Commissioners >>, or their staff
members,<< on behalf of any nonprofit organization for use solely
by that organization where neither the Commissioner, nor his or
her staff receives any compensation as a result of the solicitation.
As used in this subsection, a "nonprofit organization" shall mean
any entity described in section 50 I (c )(3) of the Internal Revenue
Code (the "Code") that is tax exempt under section 501(a) of the
Code. As used in this subsection, "compensation" means any
money, gift, favor, political contribution, thing of value or other
financial benefit.
(3) Prohibitions. A person described in subsection
(b)(1) through (6) shall neither solicit nor demand any gift. It is
also unlawful for any person or entity to offer, give or agree to give
to any person included in the term defined in subsection (b)(l)
through (6) or for any person included in the term defined in
subsection (b)(1) through (6) to accept or agree to accept from
another person or entity, any gift for or because of:
a. An official public action taken, or to be taken, or
which could be taken;
b. A legal duty performed or to be performed, or
which could be performed; or
c. A legal duty violated or to be violated, or which
could be violated by any person included in the term defined in
subsection (b)(1).
(4) Disclosure. Any person included in the term defined
in subsection (b)(1) through (6) shall disclose as provided herein
any gift, or series of gifts from anyone person or entity, having a
value in excess of one hundred dollars ($100.00). Said disclosure
shall be made by filing a copy of the disclosure form required by
Chapter 112, Florida Statutes, for "local officers" with the Clerk of
the Board of County Commissioner simultaneously with the filing
of the form with the Secretary of State.
I if-
Agenda Item No, 4(J)
Page 11-.
(f) Compulsory disclosure by employees of firms doing
business with the County. Should any person included in the terms
defined in subsections (b)(1) through (6) be employed >>,either
himself or herself or through a member of his or her immediate
family,<< by a corporation, firm, partnership or business entity in
which he >>or she<< does not have a [[ controlling]] financial
interest, [[ either himself or trn-ough a member of his immediate
family,]] and should the said corporation, firm, partnership or
business entity have substantial business commitments to or from
the County or any County agency, or be subject to direct regulation
by the County or a County agency, then said person shall file a
sworn statement disclosing such employment and interest with the
Clerk of the Circuit Court in and for Miami-Dade County.
(g) Exploitation of official position prohibited. No
person included in the terms defined in subsection (b)(1) through
(6) >>and (b)(13)<< shall use or attempt to use his >>or her<<
official position to secure special privileges or exemptions for
himself >>or herself<< or others except as may be specifically
permitted by other ordinances and resolutions previously ordained
or adopted or hereafter to be ordained or adopted by the Board of
County Commissioners. >>The use of governmental letterhead
shall be limited to official public business,<<
(h) Prohibition on use of confidential information. No
person included in the terms defined in subsection (b)(l) through
(6) >>and (b)(13)< shall accept employment or engage in any
business or professional activity which he might reasonably expect
would require or induce him >>or her<< to disclose confidential
information acquired by him >>or her<< by reason of his >>or
her<< official position, nor shall he >>or she<< in fact ever
disclose confidential information garnered or gained through his
>>or her<< official position with the County, nor shall he >>or
she<< ever use such information, directly or indirectly, for his
> >or her< < personal gain or benefit.
*
*
*
U) Conflicting employment prohibited. No person
included in the terms defined in subsections (b)(1) through (6)
>>and (b)(13)< shall accept other employment which would
impair his >>or her<< independence of judgment in the
performance of his >>or her<< public duties.
(k) Prohibition on outside employment.
l~
Agenda Item No, 4(1)
Page 12
(1) No person included in the terms defined in
subsections (b)( 5) [departmental personnel] and (6) [employees]
shall receive any compensation for his or her services as an officer
or employee of the County, from any source other than the County,
except as may be permitted by Section 2-11 of this Code of
Ordinances.
(2) All full-time County and municipal employees
engaged in any outside employment for any person, firm,
corporation or entity other than Miami-Dade County, or the
respective municipality, or any of their agencies or
instrumentalities, shall file, under oath, an annual report indicating
the source of the outside employment, the nature of the work being
done pursuant to same and any amount or types of money or other
consideration received by the employee from said outside
employment. Said County employee's reports shall be filed with
the supervisor of elections no later than 12:00 noon on July 1st of
each year, including the July I st following the last year that person
held such employment. Municipal employee reports shall be filed
with the Clerk of their respective municipalities. Said reports shall
be available at a reasonable time and place for inspection by the
public, The County Manager or any city [[M]]>>m<<anager may
require monthly reports from individual employees or groups of
employees for good cause,
(1) Prohibited investments. No person included in the
terms defined in subsections (b)(1) through (6) >>and (b)(13)<
shall have personal investments in any enterprise, either himself
>>, herself,<< or through a member of his >>or her<<
immediately family, which will create a substantial conflict
between his >>or her<< private interests and the public interest.
(m) Certain appearances and payment prohibited.
(1) No person included in the terms defined In
subsections (b)(I), (5)>>~<< [[aad]]>>~<< (6) >>and (13)<<
[commissioners, >>the Mayor,<< departmental personnel>>~<<
[[aadJ] employees >>and contract staff<<] shall appear before any
County Board or agency and make a presentation on behalf of a
third person with respect to any license, contract, certificate,
ruling, decision, opinion, rate schedule, franchise, or other benefit
sought by the third person. Nor shall such person receive
compensation, directly or indirectly or in any form, for services
rendered to a third person, who has applied for or is seeking some
'LK
.,
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Agenda Item No. 4(J)
Page 13
benefit from the County or a County agency, in connection with
the particular benefit sought by the third person. Nor shall such
person appear in any court or before any administrative tribunal as
counsel or legal advisor to a part>>y<< who seeks legal relief from
the County or a County agency through the suit in question.
(2) No person included in the terms defined in
subsections (b)(2), (3) and (4) [autonomous personnel, quasi-
judicial personnel, and advisory personnel] shall appear before the
County board or agency on which he or she serves, either directly
or through an associate, and make a presentation on behalf of a
third person with respect to any license, contract, certificate,
ruling, decision, opinion, rate schedule, franchise, or other benefit
sought by the third person, Nor shall such person receive
compensation, directly or indirectly or in any form, for services
rendered to a third party, who has applied for or is seeking some
benefit from the County board or agency on which such person
serves, in connection with the particular benefit by the third party.
Nor shall such person appear in any court or before any
administrative tribunal as counselor legal advisor to a third party
who seeks legal relief from the County board or agency on which
such person serves through the suit in question. However, this
section shall not prohibit an architect serving without
compensation on the Miami-Dade County Board of Energy
Regulation or on any architectural Board, whose sole function is to
pass on the aesthetics of plans submitted, from submitting plans on
behalf of a client so long as such member makes known his >>or
her<< representation of the applicant and disqualifies himself >>or
herself<< from speaking or voting or otherwise participating on
such application,
(n) Actions prohibited when financial interests
involved. No person included in the terms defined in subsections
(b)(l) through (6) >>and (b)(I3)<< shall participate in any official
action directly or indirectly affecting a business in which he or any
member of his immediate family has a financial interest. [[A
financial interest is defined as a special financial interest, direct or
indirect, as that term is used in Section 1.03 of the County's
Charter; or as a financial interest as defined in Section 769 of the
Restatement of the Law of Torts as an investment or something in
the nature of an investment.]] This section shall not prohibit any
official, officer, employee or person from taking official action (l)
to promote tourism or downtown development or redevelopment
within the County or any portion thereof, or (2) to authorize the
expenditure of public funds for promoting tourism or downtown
IS-
--"
Agenda Item No. 4(J)
Page 14
development or redevelopment, so long as no such authorized
public funds are to be paid to such person or a member of his >>or
her<< immediate[[ly]] family or any business in which he >>or
she<< or any member of his >>or her<< immediate family has a
financial interest.
(0) Acquiringfinancial interests. No person included in
the terms defined in subsections (b)(1) through (6) >>and
(b )(13)<< shall acquire a financial interest in a project, business
entity or property at a time when he >>or she<< believes or has
reason to believe that the said financial interest will be directly
affected by his >>or her<< official actions or by official actions by
the County or County agency of which he >>or she<< is an
official, officer >>~<< [[ef]J employee >>or contract staff<<.
*
*
*
(q) Continuing application after county service.
(1) No person who has served as an elected county
official, i.e., mayor, county commissioner, or a member of the staff
of an elected county official, or as county manager, senior assistant
to the county manager, department director, departmental
personnel or employee shall, for a period of two (2) years after his
or her county service or employment has ceased, lobby any county
officer, departmental personnel or employee in connection with
any judicial or other proceeding, application, RFP, RFQ, bid,
request for ruling, or other determination, contract, claim,
controversy, charge, accusation, arrest or other particular subject
matter in which Miami-Dade County or one (1) of its agencies or
instrumentalities is a party or has any interest whatever, whether
direct or indirect. Additionally, no person who has served as a
community council member shall, for a period of two (2) years
after his or her county service [[or employment]] has ceased,
>>appear on behalf of a third person before the community council
upon which he or she has served, or<< lobby, with regard to any
zoning or land use issue, any county officer, departmental
personnel or employee in connection with any judicial or other
proceeding, application, request for ruling, or other determination,
contract, claim, controversy, charge, accusation, arrest or other
particular subject matter in which Miami-Dade County or one (1)
of its agencies or instrumentalities is a party or has any interest
whatever, whether direct or indirect. Nothing contained in this
Subsection (q)(l) shall prohibit any individual included within the
provisions of this subsection from submitting a routine
t ~
Agenda Item No. 4(J)
Page 15
administrative request or application to a county department or
agency during the two-year period after his or her county service
has ceased.
(2) [[The prOVlSlons of this Subsection (q) shall not
apply to officials, departmental personnel or employees who
become employed by governmental entities, 501(c)(3) non profit
entities or educational institutions or entities, and who lobby on
behalf of such entities in their official capacities.]]
(3) The provisions of this section shall apply to all
individuals as described in Subsection (q)(I) who leave the county
after the effective date of the ordinance from which this section
derives.
(4) [[i\.ny former county offieer, departmental
personnel or employee who has left the county within two (2)
years prior to the effective date of this ordinance and has entered
into a lobbying contract prior to the effective date of this ordinance
shall, for a period of two (2) years after his or her county service or
employment has ceased, comply v/ith Subsection (q) as it existed
prier to the effective date of the ordinance from which this section
derives and as modified by this Subsection (q)(1) ,-"hen lobbying
pursuant to said contract. No f{)rmer county officer, departmental
personnel or employee who has left the county '.vithin two (2)
years prior to the effective date of the ordinance from which this
section deri':es shall for a period of two (2) years after his or her
county service or employment has ceased enter into a lobbying
contract to lobby any county officer, departmental personnel or
employee in connection '.vith any judicial or other proceeding,
application, RFP, R..cQ, bid, request for ruling, or otheF
determination, contract, claim, controversy, charge, accusation,
arrest or other particular subject matter in which Miami Dade
County or one (1) of its agencies or instrumentalities is a party or
has a direct and substantial interest; and in vmich he or she
participated directly or indirectly as an officer, departmental
personnel or employee, through decision, approval, disapproval,
recommendation, the rendering of advice, investigation, or
othef\vise, during his or her county service or employment. As
used herein, a person participated "directly" v/here he or she was
substantially involved in the particular subject matter through
decision, approval, disapproval, recommendation, the rendering of
ad'/ice, investigation or othef\vise, during his or her county service
or employment. As used herein, a person participated "indire~
where he or she knowingly participated in any v/ay in the
(1
oM
Agenda Item No. 4(1)
--Page 16 ..
particular subject matter through decision, approval, disapproval,
recommendation, the rendering of legal advice, investigation or
otherwise, during his or her county service or employment. Former
county officers, departmental personnel and employees who have
left the county within two (2) years prior to the effecti';e date of
the ordinance from which this section derives shall mcecutc an
affidavit on a form prepared by the Office of the Inspector General
prior to lobbying any county officer, departmental personnel or
employee stating that the requirements of this section do not
preclude said person from lobbying any officer, depar.mental
personncl or employee of the county. Thc Inspector Gencral shall
verify the accuracy of each affidavit eJcecuted by former county
officers, departmental personnel or employees.]]
(5) Any individual who is found to be in violation of
this Subsection (q) shall be subject to the penalties provided in
either Subsection [fte1fl-)]] >>(bb)(1)<< or Subsection [[~]]
>>(bb)(2)<<.
(r) Ethics Commission to render opinions on request.
Whenever any person included in the terms defined in subsection
(b)(1) through (6) [[and subsection]] >>~<< (b)(9) >>and (b)(13)<<
is in doubt as to the proper interpretation or application of this
Conflict of Interest and Code of Ethics Ordinance as to himself or
herself, or whenever any person who renders services to the
County is in doubt as to the applicability of the said ordinance as to
himself or herself, he or she may submit to the Ethics Commission
a full written statement of the facts and questions he or she has.
The Ethics Commission shall then render an opinion to such
person and shall publish these opinions without use of the name of
the person advised unless such person requests the use of his or her
name.
(s) Lobbying.
*
*
*
(9) The Ethics Commission shall investigate any person
engaged in lobbying activities who may be in violation of this
subsection (s). In the event that a violation is found to have been
committed the Ethics Commission may, in addition to the penalties
set forth in subsection UW]] >>(bb)<<, prohibit such person from
lobbying before the County Commission or any committee, board
or personnel of the County as provided herein. Every lobbyist who
is found to be in violation of this section shall be prohibited from
{, Z
Agenda Item No. 4(J)
Pag.e-1+
registering as a lobbyist or lobbying III accordance with the
following schedule:
1 st violation for a period of 90 days from the date of determination
of violation;
2nd violation for a period of one (1) year from the date of
determination of violation;
3rd violation for a period of five (5) years from the date of
determination of violation;
A bidder or proposer shall be subject to the debarment provisions
of Section 10-38 of the Code of Miami-Dade County as if the
bidder or proposer were a contractor where the bidder or proposer
has violated this section, either directly or indirectly or any
combination thereof, on three (3) or more occasions. As used
herein, a "direct violation" shall mean a violation committed by the
bidder or proposer and an "indirect violation" shall mean a
violation committed by a lobbyist representing said bidder or
proposer. A contract entered into in violation of this section shall
also render the contract voidable. The County Manager shall
include the provisions of this subsection in all County bid
documents, RFP, RFQ, CBO and CDBG applications; provided,
however, the failure to do so shall not render any contract entered
into as the result of such failure illegal per se.
*
*
*
(v) Voting Conjlicts{[} J>> ;",<< Members of Advisory
and Quasi-Judicial Boards.
>>ill<< No person included in the terms defined in subsections
(b)(3) (quasi-judicial personnel) and (b)(4) (advisory personnel)
shall vote on any matter presented to an advisory board or quasi-
judicial board on which the person sits if the board member will be
directly affected by the action of the board on which the member
serves >>or<< [[, aad]] the board member has any of the following
relationships with any of the persons or entities appearing before
the board: (i) officer, director, partner, of counsel, consultant,
employee, fiduciary or beneficiary; or (ii) stockholder, bondholder,
debtor or creditor.
>>(2)<< Additionally, no person included in the term defined in
subsection (b)(3) and (b)(4) who was previously employed by or
\1
Agenda Item No. 4(1)
Page 18
held a financial interest in a for-profit entity. not-for-profit entity,
partnership or other business entity (hereinafter "business entity")
shall. for a period of eighteen (18) months following termination of
his or her prior relationship with the business entity, vote on or
participate in any way in any matter relating to that entity. The
prohibition provided for in this paragraph relating to advisory
personnel shall only apply to those individuals serving on advisory
boards which have the authority to recommend the award of grants
or contracts. < <
*
*
*
(x) Prohibition on county employees and departmental
personnel performing contract-related duties, No person included
in subsections (b)( 5)( departmental personnel) and (b)( 6)
(employees), who was previously employed by or held a
[[controlling]] financial interest in a for-profit [[fumJ] >>entity<<,
>>not-for-profit entity,<< partnership or other business entity
(hereinafter "business entity") shall, for a period of two years
following termination of his or her prior relationship with the
business entity, perform any county contract-re,lated duties
regarding the business entity, or successor in interest, where the
business entity is a county bidder, proposer, service provider,
contractor or vendor. As used in this subsection (x), "contract-
related duties" include, but are not limited to: service as a member
of a county certification, evaluation, selection, technical review or
similar committee; approval or recommendation of award of
contract; contract enforcement, oversight or administration;
amendment, extension or termination of contract; or forbearance
regarding any contract. Notwithstanding the foregoing, the
provisions of this subsection (x) shall not apply to the County
Manager or the Director of Procurement Management.
(y) Powers and jurisdiction 'of Ethics Commission. The
Ethics Commission shall be empowered to review, interpret, render
advisory opinions and letters of instruction and enforce the conflict
of Interest and Code of Ethics Ordinance. Jurisdiction of the Ethics
Commission shall automatically extend to Commissioners, >>the
Mayor,<< autonomous personnel, quasi-judicial personnel,
departmental personnel, employees, >>contract staff<< advisory
personnel, immediate family, lobbyists as defined in subsections
(b) and (s) who are required to comply with the Conflict of Interest
and Code of Ethics Ordinance; and any other person required to
comply with the Conflict of Interest and Code of Ethics Ordinance
including, but not limited to, contractors >>.consultants<< and
d-O
Agenda Item No. 4(J)
P-age 19
vendors, In the event that the Ethics Commission does not assume
jurisdiction as provided in the preceding sentence, the Ethics
Commission may refer the complaint to the State Attorney for
appropriate action. Notwithstanding the foregoing, the Ethics
Commission shall not have jurisdiction to consider an alleged
violation of subsection (c) if the requirements of subsection (c)
have been waived for a particular transaction as provided therein.
*
*
*
(bb) Penalty.
(1) Proceeding before Ethics Commission. A finding by
the Ethics Commission that a person has violated this section shall
subject said person to an admonition or public reprimand and/or a
fine of five hundred dollars ($500.00) for the first such violation
and one thousand dollars ($1,000.00) for each subsequent
violation. >>Where the Ethics Commission finds that a person has
intentionally violated this section and determines that a fine is
appropriate. said person shall be subject to a fine of one thousand
dollars ($ 1.000.00) for the first such violation and two thousand
dollars ($2.000.00) for each subsequent violation,<<Actual costs
incurred by the Ethics Commission, in an amount not to exceed
five hundred dollars ($500.00) per violation, may be assessed
where the Ethics Commission has found an intentional violation of
this section. The Ethics Commission may also order the person to
pay restitution when the person or a third party has received a
pecuniary benefit as a result of the person's violation. The
procedure for determining restitution shall be governed by an
administrative order adopted by the County Commission and rules
of procedure promulgated by the Ethics Commission,
(2) Prosecution by State Attorney in State court. Every
person who is convicted of a violation of this section in State court
shall be punished by a fine not to exceed five hundred dollars
($500,00) or imprisonment in the County Jail for not more than
thirty (30) days, or by both such fine and imprisonment.
Section 3.
If any section, subsection, sentence, clause or provision of this ordinance
is held invalid, the remainder of this ordinance shall not be affected by such invalidity.
Section 4.
It is the intention of the Board of County Commissioners, and it is hereby
c9(
Agenda Item No. 4(1)
_ J?~ge_ 2~ _ _ _ ___ _
ordained that the provisions of this ordinance, including any sunset provision, shall become and
be made a part of the Code of Miami-Dade County, Florida, The sections of this ordinance may
be renumbered or relettered to accomplish such intention, and the word "ordinance" may be
changed to "section," "article," or other appropriate word.
Section 5.
This ordinance shall become effective ten (10) days after the date of
enactment unless vetoed by the Mayor, and if vetoed, shall become effective only upon an
override by this Board.
PASSED AND ADOPTED:
Approved by County Attorney as
to form and legal sufficiency:
~
Prepared by:
~
Gerald K. Sanchez
Prime Sponsor:
Commissioner Rebeca Sosa
;)-0----
,-
MEMORANDUM
TO:
FROM:
RE:
DATE:
Commission on Ethics and Public Trust
Victoria Frigo, Staff Attorney
RQO 10-19, Keith Poliakoff, representing Robert C. Solera
July 20,2010
I. ISSUE
Robert C. Solera, former Director of the Community Development Department (Planning and
Zoning Department) of the City of Sunny Isles Beach, asks if the "two-year rule" I prevents
him from providing testimony in a publicly noticed quasi-judicial zoning appeal hearing in
Sunny Isles Beach within seven months of his departure from city employment.
Sometimes referred to as the "revolving door," the intent of the law is to deter fonner
government officials and employees from exercising undo influence on behalf of themselves
or others as a result of their recent ties to government.
II. BACKGROUND
Temple B'Nai Zion in Sunny Isles Beach is appealing a zoning decision made by the City
Zoning Board. Keith Poliakoff, the attorney representing the Temple, wishes to call Robert
Solera as a witness to give testimony at the quasi-judicial appeal hearing. Mr. Solera will not
be compensated for his testimony and, to our knowledge, is not association with Temple
B'Nai Zion.
Mr. Solera separated from the city seven months ago. He served as Director of the
Community Development Department, which is, in effect, the Planning and Zoning
Department of the City of Sunny Isles Beach
III. LEGAL ANALYSIS
Miami-Dade County Code
The County Code at Sec. 2-11.1 (q) states that city employees may not lobby their respective
municipalities for two years following city employment-
... with regard to any zoning or land use issue, any [municipal] officer,
departmental personnel or employee in connection with any judicial or other
proceeding, application, request for ruling or other determination, contract,
claim, controversy, charge, accusation, arrest or other particular subject matter in
which [the municipality] or one (1) of its agencies or instrumentalities is a party
or has any interest whatever, whether direct or indirect. (Emphasis added.)
Clearly, the code seeks to prevent former city employees from attempting to influence (i.e.,
lobby) city personnel. However, the language does not address the fact pattern before us-
I The two-year rule, at Sec. 2-11.1 (q) of the County Ethics Code, prohibits former local government
employees from lobbying their respective governments for two years following their departure from
government employment.
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i.e., a former employee who is called to testify in a publicly noticed quasi-judicial
proceeding.
The County Code at Sec. 2-11.1 (s)( 1 )(b) defines lobbyist to mean-
... all persons, firms, or corporations employed or retained by a principal who
seeks to encourage the passage, defeat, or modifications of (1) ordinance,
resolution, action or decision of the [city commission]; (2) any action, decision,
recommendation of the [city manager] or any [city] board or committee; or (3)
any action, decision or recommendation of [ city] personnel during the time
period of the entire decision-making process on such action, decision or
recommendation which foreseeably will be heard or reviewed by the [city
commission], or a [city] board or committee. (Emphasis added.)
The County Code at Sec. 2-11.1 (s)( 1 )(b) specifically excludes from the definition of
lobbyist-
attorneys or other representatives retained or employed solely for the purpose
of representing individuals, corporations or other entities during publicly
noticed quasi-judicial proceedings where the lmv prohibits ex-parte
communications (Emphasis added.)
expert witnesses who provide only scientific, technical or other specialized
information or testimony in public meetings (Emphasis added.)
These subsections, read together, support the presumption that the legislative intent of the
Ethics Code was to exclude from the definition of lobbying testimony proffered at a publicly
noticed quasi-judicial proceeding.2
Commission on Ethics Opinions
The Ethics Commission has opined on the two-year rule numerous times, but has never
addressed the issue of whether providing testimony before a publicly noticed quasi-judicial
hearing violates subsection 2-11.1 (q) of the ordinance.
In 2004, the Director of the County Building Department was advised about the two-year
prohibition as it applied to former employees who came in contact with the County
Department.) These former employees, who were self-employed in the building industry or
worked as consultants, permit expediters, or employees of developers, were not allowed to
meet with County staff except for routine requests. Typical meetings that were not allowed
included those related to negotiate settlements on unsafe building structures or discussions
2 These sections of the code, which relate to the same subject matter and are not inconsistent with one
another, may be read together under the precept of in pari material. "The doctrine of in pari materia is a
principle of statutory construction that requires that statutes relating to the same subject or object be
construed together to harmonize the statutes and to give effect to the Legislature's intent." Florida Dept. of
State, Div. of Elections v. Martin, 916 So.2d 763, 768 (Fla. 2005).
) RQO 04-33, opinion given to Charles Danger, Director of the County Building Dept.
RQO 10-19 Poliakoff
July 20,2010
201'3
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about how to modify building plans.
In 2008, Carlos Bonzon, a former Assistant County Manager, was allowed to attend public
meetings as a principal of a firm that was attempting to do business with the County as long
as he did not speak or hold himself out as a representative of the business.4 The rationale for
this opinion was that the Sunshine Law entitles everyone to attend public meetings, including
the former employee.5
II. CONCLUSION
Based on the foregoing, under the County Code, former government employees are not
lobbying when they give testimony in publicly noticed quasi-judicial proceedings.
Consequently, they do not violate the prohibition on appearing before their respective
governments for two years following their separation from government employment.
Because the city lobbying ordinance differs significantly from the County Code,6 and because
the City Code authorizes the City Attorney to interpret both the County and City Ethics
Codes,7 the requestor will likely be bound by the opinion of the City Attorney in this
particular matter.
4 RQO 08-] 7, opinion given to Luisa Millan-Donovan, Chief, Professional Contracts Division, County
Office of Capital Improvements.
5 INQ 07-61, informal opinion given to Carlos Bonzon prior to his formal request in 2008.
6 The Sunny ]sles Beach Code does not allow for many of the exemptions found in the County Code under
Lobbying. In the City Code, only those who represent nonprofit entities, without special compensation or
reimbursement for the appearance, may seek an exclusion from paying the city lobbyist registration fee.
However, they must register as lobbyists with the City Clerk. Sunny Isles Beach City Code at Sec. 33-2 B.
7 Sunny Isles Beach Code at Sec. 33-3 Q.
RQO ]0-19 Poliakoff
July 20, 20 I 0
30f3
ETHICS COMMISSIONERS
Kerry E. Rosenthal, CHAIRPF.RSON
Dawn E. Addy, VICE CHAIRPERSON
Judge Seymour Gelber
ROBERT A. MEYERS
EXECUTIVE DIRECTOR
MICHAEL P. MURAWSKI
ADVOCATE
ARDYTH WALKER
STAFF GENERAL COUNSEL
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Via First Class Mail
and
email atKp._oliakQ.ff((~bec.-k~r:Qoliakoff.com
July 20,2010
Keith M. Poliakoff, Esq.
Becker & Poliakoff
P.O. Box 9057
Ft. Lauderdale, FL 33310-9057
Re:
RQO 10-19, for Robert C. Solera
Miami-Dade County Ethics Code at Section 2-11.1 (q)
Dear Mr. Poliakoff:
In public session on July 20,2010, the Ethics Commission responded to
your query on whether, under the County Code, the "two-year rule" I
prevents Robert C. Solera from providing testimony at a publicly noticed
quasi-judicial zoning appeal hearing in Sunny Isles Beach within a year of
his departure from city employment.
The Ethics Commission opined that fom1er local govemment employees
are not lobbying when they give testimony in publiely noticed quasi-
judicial proceedings. Consequently, they do not violate the County's
prohibition on appearing before their respective governments for two
years following their separation from government employment.
In your email of June 23, 20 I 0, you stated that you wished to call Robert
Solera as a witness to give testimony at a quasi-judicial zoning appeal
hearing involving Temple B'Nai Zion in Sunny Isles Beach. Mr. Solera
would not be compensated for his testimony and is not in any way
associated with Temple B'Nai Zion,
Until his separation from city government approximately one year ago,
Mr. Solera served as Director of the Community Development
Department, which is, in effect, the Planning and Zoning Department of
the City of Sunny Isles Beach.
I The two-year rule, at Sec. 2-11.1 (q) of the County Ethics Code, prohibits former local
government employees from lobbying their respective governments for two years
following their departure from government employment.
.,.~.~t~:i;~~~~~~q~~~~i~~~~~{fl~~~~~~;f(~;_
~~~1~1If~~i
-
The County Code at Sec. 2-11.1 (q) states that city employees may not
lobby their respective municipalities for two years following city
employment. The intent of the law is to level the playing field and deter
former government officials and employees from exercising undue
influence on behalf of themselves or others as a result of their recent ties
to government.
Because the County Lobbying Ordinance at Sec. 2-11.1 (s)(1)(b)
specifically excludes from the definition of "lobbyist" two related
circumstances involving ex parte communications and expert witnesses,
the Ethics Commission was persuaded that the prohibition against
lobbying under the "two-year rule" did not include testimony proffered at
publicly noticed quasi-judicial proceedings.2
Although the County Ethics Commission has jUlisdiction to interpret
ethics codes in all of the municipalities within the County, this opinion
construes the Miami-Dade County Conflict ofInterest & Code of Ethics
Ordinance only. Inquiries regarding possible conflicts under State law
should be addressed to State of Florida Commission on Ethics.
Please feel free to contact or me or Staff Attorney Victoria Frigo if we can
be of further assistance in this matter.
Sincerely,
//j f l)'-, C"'~------~"
L-/-~
ROBERT MEYERS
Executive Director
2 Under Sec. 2-11.1 (s)(I )(b) of the County Code, the term "lobbyist" does not include
attorncys or other representatives rctaincd or cmploycd solcly for the purpose of
representing individuals, corporations or other entitics during publicly noticed quasi-
judicial proceedings where the law prohibits ex-parte communications. Additionally, thc
term does not include expert witnesses who providc only scientific, technical or other
specialized information or tcstimony in public meetings.
RQO 10-19 Poliakoff
July 20,2010
Page 2 of2
TO:
FROM:
DATE:
RE:
City of Sunny Isles Beach
18070 Collins Avenue, Suite 250
Sunny Isles Beach, Florida 33160
(305) 947-0606 City Hall
(305) 949-3113 Fax
(305) 947-2150 Building Department
(305) 947-5107 Fax
City Commission
Norman S. EdeIcup, Mayor
Lewis Thaler, Vice Mayor
Roslyn Brezin, Commissioner
Gerry Goodman, Commissioner
George "Bud" Scholl, Commissioner
Rick Conner, City Manager
Hans Ottinot, City Attorney
Jane A. Hines, CMC, City Clerk
MEMORANDUM
Honorable Mayor and City c07\~
Hans Ottinot, City Attorney ~
July 27,2010
Review of County Ethics Commission Opinions - Two Year Post Employment
Restriction
Attached please find a summary of every written opinion issued by the Miami Dade County
Ethics Commission ("Ethics Commission") regarding the County's two year post employment
restriction. Significantly, there are twenty eight (28) written opinions regarding the County's
two year post employment restriction, spanning a period of twelve years,
As more fully discussed below, the Ethics Commission has broadly construed the County's two
year restriction on post employment activity, throughout its twelve year written history on this
subject. Significantly, the Ethics Commission has never created an exception to the two year
rule for fact witnesses in quasi judicial hearings,
The recent decision rendered in RQO 10-19, dated July 20, 2010, directly conflicts with the
County's previous twenty eight opinions regarding the two year post employment restriction.
More disturbing, this opinion creates an exception to the two year rule to allow fact witnesses to
testify in quasi judicial hearings, even though this exception is not found in the County's
Conflict of Interest and Code of Ethics Ordinance.
The following is a summary of every written OpInIOn issued by the Ethics Commission
concerning the two year rule:
09-36 October L 2009
In Request for Advisory Opinion ("RQO") 09-36 the Ethics Commission issued an OpInIOn
regarding the restrictions imposed by Section 2-11.1 (q) (two year rule) on the use of a former
employee as a consultant on an ongoing project involving a new airport terminal facility. The
Ethics Commission ruled that the two year restriction on post employment activity, set forth in
Section 2-11.1 (q), permitted the consultant to provide management and oversight on the project
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because he would not be engaged in any prohibited lobbying activities. The Ethics Commission
reasoned that "[t]he lobbying ordinance only applies to persons representing third parties who
are seeking government action in their favor."
09-15 March 27,2009
In RQO 09-15, the Ethics Commission opined whether a member of the Florida House of
Representatives may continue to serve as a lobbyist on county contracts while running for a seat
on the County Commission. The Ethics Commission ruled that the State Representative could
continue to serve as a registered county lobbyist while running for the County Commission. The
Ethics Commission ruled this was permissible because the County's Conflict of Interest
Ordinance only prohibited lobbying activities by current and former County officials under
Sections 2-11.1( q) (two year rule) and 2-11.1(m) (prohibited appearances).
09-12 March 27.2009
In RQO 09-12, the Ethics Commission issued an OpInIOn regarding whether the two year
prohibition on post employment activity begins to run from the date of resignation or termination
of County employment. The Ethics Commission ruled that the two year rule found in Section 2-
11.1 (q) starts from the official date of termination from county service, not from the date of an
employee's resignation.
08-28 July 9, 2008
In RQO 08-28, the Ethics Commission was asked to identify which types of post employment
activities a former Chief Mechanical Inspector for Miami Beach could perform within Miami
Beach during the two year post employment period. The Ethics Commission analyzed Sections
2-11.1(q) (two year rule) and 2-11.1(s) ("lobbyist" definition) and specifically noted that
"lobbying has been interpreted very broadly by the Ethics Commission and includes many
related activities not specifically noted [in 2-11.1(s)]." (emphasis added).
In accordance with their own broadly defined interpretation of prohibited lobbying activities,
including those not specifically denoted in Section 2-11.1(s), the Ethics Commission specifically
stated as follows: "In general, former government employees may communicate with their
respective governments on ministerial issues, but they are prohibited from attempting to
influence any type of government decision at their respective governments for two years
following their government service."
08-26 August 29,2008
In RQO 08-26, the Ethics Commission issued an opinion regarding whether a former City
Commissioner for Miami Beach who was now retained by Becker and Poliakoff ("BP") could
appear before Miami Beach during the two year post employment period to represent a non-
profit organization that retained him as legal counsel. The Ethics Commission noted that the BP
attorney could not appear before Miami Beach during the two year post employment period
because the BP attorney's client relationship with the nonprofit group did not fall within one of
the three specific exemptions found in Section 2-11.1(q)(2) (two year rule).
The Ethics Commission specifically stated that the only three permissible exemptions included
1) former employees who become employed by government entities, 2) former employees who
become employed by 501 (c )(3) non profit entities or educational institutions or 3) former
employees who lobby on behalf of such entities in their official capacities. The Ethics
Commission reasoned that since the BP attorney did not fall within one of these specifically
enumerated exemptions to the two year rule, he was therefore prohibited from lobbying the City
of Miami Beach.
08-17 April 25, 2008
In RQO 08-17, the Ethics Commission opined whether a former Assistant County Manager may
serve as principal in charge of a design contract for the construction of a new fleet shop and
maintenance facility for the County, The Ethics Commission found that the former County
official could serve as principal in charge of the project, provided he did not engage in any
prohibited lobbying activity with the County on behalf of a third party. The Ethics Commission
found that the restrictions contained in Section 2-11.1 (q) (two year rule) "broadly defines
lobbying as seeking to influence county staff, the County Manager or any member of the
Board of County Commissioners during the entire decision making period of any
legislative action, decision or action that may foreseeably come before the Board of County
Commissioners or any County board," (emphasis added),
06-54 September 28,2006
In RQO 06-54, the Ethics Commission whether Section 2-11.1 (q) (two year rule) barred a
government affairs consultant with the Public Health Trust from serving as a sub-consultant to a
law firm under a Request for Proposal ("RFP") issued by the Public Health Trust. The Ethics
Commission ruled that the government affairs consultant would be permitted to serve as a
member of the lobbying team for the Public Health Trust because Section 2-11.1(q) only
prohibited former employees from lobbying the County for two years following employment.
However, the Ethics Commission specifically noted that the government affairs consultant could
"not make any presentations before the selection committee or lobby any Trust employees
regarding the subject RFP because such activities would fall under the prohibitions contained in
Section 2-11.1 (q)."
06-32 May 1. 2006
In RQO 06-32, the Ethics Commission opined whether former County Commissioners may enter
into contractual relationships during their two year post employment period with entities that
benefitted financially from decisions made while the former County Commissioner were in
office. The Ethics Commission ruled that the former County Commissioner could enter into
contractual relationships with entities that benefitted from decisions they made while in office,
provided the contractual relationships with said entities were not discussed or contemplated
during the decision making process. The opinion specifically noted that the two year post
employment restriction found in Section 2-11.1(q) has been interpreted "broadly to include
written communications as well as appearances and meetings with staff and county boards and
entities."
04-205 December 16. 2004
In RQO 04-205, the Ethics Commission opined whether an employee of the Miami Dade
Housing Agency ("MDHA") could leave County employment and become Executive Director of
the Miami Dade Development Corporation ("MDDC"), The Ethics Commission ruled that this
change of employment was permissible because MDDC is a governmental entity and, as such,
falls within one of the three specifically enumerated exemptions found in Section 2-11.1(q)(2),
04-201 December 16.2004
In RQO 04-201, the Ethics Commission opined whether a former Director of the Miami Dade
Housing Agency ("MDHA") could contract with companies doing business with MDHA, or
seeking to do business with MDHA in the future. The Ethics Commission answered this
question in the affirmative, ruling that the only prohibited conduct involved lobbying any county
official or staff member regarding any client or project, per the two year rule in Section 2-
11.1(q).
The Ethics Commission broadly defined the lobbying prohibition to include "meet[ing] with any
county officials, submit[ing] written documents on behalf of your clients or appear[ing] at
publicly noticed meetings for your clients regarding any project where the client is seeking
action or funding from Miami Dade County government."
04-106 June 1 L 2004
In RQO 04-106, the Ethics Commission addressed the issue of a former Assistant County
Manager who sought to lobby the County Commission. The former Assistant County Manager
argued that since his former job title was not specifically listed in Section 2-11.1 (q)(1) that he
was therefore exempt from the two year post employment restriction. The Ethics Commission
disagreed, ruling that although this particular job classification was not specifically listed in
subsection (q)(1), the general prohibition of "lobbying" found in Section 2-11.1(s) is "broad and
covers any activity where you are publicly identified as part of a lobbying team."
04-48 May 18.2004
In RQO 04-48, the Ethics Commission addressed the applicability of former permit/plans
expediters and consultants in the County's Building Department to the two year post
employment restrictions found in Section 2-11.1 (q). The narrow issue presented was whether
the two year rule applied to 1) part time employees 2) temporary full time employees directly
hired by the County and 3) temporary full time employees directly hired by employment
agencies, The Ethics Commission broadly construed the two year post employment restriction to
include all three groups, regardless of whether they earned a salary per se or hourly wages, and
regardless of whether or not they received County benefits.
...
The Ethics Commission specifically opted for a broad interpretation of the two year prohibition,
because to conclude otherwise "would create a loophole exempting these individuals..."
(emphasis added). In light of this broad construction and applicability, the Ethics Commission
reasoned that only individuals hired through temporary employment agencies, either full or part
time, and who worked less than six (6) months for the County would be exempt from the two
year post employment restriction,
04-34 March 11. 2004
In RQO 04-34, the Ethics Commission addressed the applicability of Section 2-11.1(q)(1) (the
two year rule) and Section 2-11.1 (s) (lobbying) to a former County employee who was employed
by a private engineering firm. The Ethics Commission ruled that the two year rule restriction
outlined in these sections is "broad and covers any activity where you attend meetings and are
publicly identified as part of CSA's lobbying team." The only permissible scope of activity
would include "submitting routine administrative requests or applications, such as filing
documents or requesting information."
04- 33 March 1. 2004
In RQO 04-33, the Ethics Commission considered the applicability of Section 2-11.1(q) (the two
year rule) and Section 2-11.1(s) (lobbying) to former employees of the County's Building
Department.
In particular, the Ethics Commission addressed the following two issues:
(1) whether former employees, who are self employed, could engage in the following activities:
. Represent building code violators at ticket appeal hearings
· Negotiate settlement agreements with department staff on unsafe structures cases and
ticket cases
. Interact with department staff in order to obtain building permits for clients
(2) whether former employees, who work for developers, could engage in the following
activities:
· Submit permit applications and plans for processing
. Meet with County staff to discuss the timeliness of plan review
· Meet with County staff to review and to discuss requested modifications to plans as part
of the permitting process
The Ethics Commission ruled that representing building code violators at ticket appeal hearings
and negotiating settlement agreements with department staff on behalf of third parties "would
clearly constitute lobbying, as it is defined under Section 2-11.1(s)," The Ethics Commission
reasoned that such activities seek "some action, decision or recommendation by County staff on
behalf of third parties" and do not fall within the permissible scope of "routine administrative
requests." The Ethics Commission also found that interacting with department staff in order to
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obtain building permits for clients may also be considered "lobbying, dependent on the
circumstances.' ,
Regarding the second issue presented, the Ethics Commission determined that the submission of
routine administrative requests or applications is permissible and does not violate the two year
post employment restriction.
The Ethics Commission broadly construed the two year post employment restriction, specifically
stating the following: "lobbying by former employees contemplates a broad interpretation
and common understanding of the word 'lobbying' by capturing activities and subject
matters which may not be precisely outlined by subsection (s) in its definition of 'lobbyist."
(emphasis added),
In accordance with this broad interpretation, the Ethics Commission opined that
"communications and activities, whereby former employees are trying to persuade County staff
on a particular course of action or to make some determination, are considered 'lobbying'."
02-68 June 27.2002
In RQO 02-68, the Ethics Commission addressed the applicability of the two year rule to a
former Deputy Chief of Staff and General Counsel to Mayor Penelas who formed his own
consulting company and sought to lobby the Empowerment Trust, a not for profit 501(c)(3)
corporation. The Ethics Commission ruled that the former County employee could lobby the
Empowerment Trust Board members and neighborhood assembly persons, since the
Empowerment Trust was an independent not for profit corporation and its board members and
neighborhood assembly persons were not considered County officials. However, the Ethics
Commission ruled that in accordance with the two year prohibition, the former County employee
could not lobby Empowerment Trust employees or any County official in regards to
Empowerment Trust business.
01-38 April 5. 2001
In RQO 01-38, dated, the Ethics Commission construed the applicability of the two year rule to a
former aid to County Commissioner who subsequently worked for a law firm as an associate.
The Ethics Commission ruled that the two year rule outlined in Section 2-11.1 (q) "is broad and
would cover any activity where the employee attends meetings and is publicly identified as part
of a lobbying team employed by the principal." The Ethics Commission noted that the associate
could attend quasi judicial hearings and County Commission meetings, but only for purposes of
"provid[ing] administrative support if he is not publicly identified as a member of the lobbying
team."
01-01 January 22, 2001
In RQO 01-01, the Ethics Commission addressed the issue of a former Director of the
Department of Planning and Zoning who subsequently worked as a consultant to the County for
purposes of revising its Zoning Code. In analyzing the extent of the two year post employment
.~
restriction, the Ethics Commission reviewed Section 2-11.1(q) (two year rule) and Section 2-
11.1 (s)(1) (lobbyist). The Ethics Commission ruled that the Conflict of Interest Ordinance did
not prevent the consultant from appearing in support of the zoning changes as a County
consultant representing the Zoning Department. According to the Ethics Commission, "the
lobbying ordinance only applies to persons representing third parties who are seeking
government action in their favor."
00-145 September 19, 2000
In RQO 00-145, the Ethics Commission considered the applicability of the two year rule to a
former County employee who sought an of counsel position with a law firm, primarily involving
his representation in connection with representing American Airline in the construction of the
North Terminal project at Miami International Airport. The Ethics Commission found that
Section 2-11.1 (q) (two year rule) prohibited the former County employee from lobbying any
County official on any issues related to American Airlines and the North Terminal Development
program. The Ethics Commission broadly construed the two year post employment restriction to
include "participat(ion] in any activities in your role as a liaison between American and county
departments where you seek to persuade county personnel to take a particular course of action in
regard to any issue which may come before the County Commission or any county board or
committee."
00-112 March 30. 2000
In RQO 00-112, the Ethics Commission addressed the applicability of the two year rule to a
former biologist for DERM who was subsequently employed by an environmental consulting
company. In this private employment capacity, the former County employee sought to assist
companies trying to obtain permits from DERM, The Ethics Commission found that Section 2-
11.1(q) (two year rule) did not prohibit the former County employee from working with
companies doing business with the County, provided he did not lobby any department official
regarding permit applications from his clients.
00-08 February 9, 2000
In RQO 00-08, the Ethics Commission opined on the two year rule as it applied to a former
Coral Gables employee who subsequently worked for a private engineering firm that did
engineering work for Coral Gables. The Ethics Commission ruled that the former City employee
was not precluded from working on engineering projects involving the Coral Gables, provided
they did not engage in lobbying activities prohibited by Section 2-11.1 (q)( 1).
99-56 December 20. 1999
In RQO 99-56, the Ethics Commission opined whether a former County employee could apply
for a contract to provide entrepreneurial training for youth with the Metro Miami Action Plan
("MMAP"). The Ethics Commission found that Section 2-11.1 (q) (two year rule) did not
prevent the former employee from contracting with MMAP to provide entrepreneurial training
for youth, provided the former employee did not lobby any county officials or department.
99-54 December 20, 1999
In RQO 99-54, the Ethics Commission opined on the two year rule as it applied to a former
County Aviation Department employee and his subsequent employment as a subcontractor
providing technical assistance to a third party to develop the Opa- Locka Airport. The Ethics
Commission ruled that the former County employee was not prohibited from doing the proposed
work on the project, provided it involved no lobbying of County employees or officials, per
Section 2-11.1 (q),
99-41 October 14, 1999
In RQO 99-41, the Ethics Commission addressed the applicability of the two year rule to a
former Chief of Staff to Miami Mayor Suarez and his subsequent work as a consultant for a
medical firm which was renegotiating a contract with the Public Health Trust. Prior to his
position with the County, the employee had worked for Internal Medicine Consultants of Dade
("IMCD"). The Ethics Commission found that the two year rule outlined in Section 2-11.1( q)
did not prohibit him from renegotiating the contracts with the Public Health Trust because he
was not an employee of county government at the time he previously worked for IMCD and the
Conflict of Interest Ordinance only prevents employees from lobbying before the entity of which
they were a former employee.
99-26 July 27, 1999
In RQO 99-26, the Ethics Commission opined on the two year rule as it applied to a former
County executive who was subsequently employed by American Airlines to serve as Community
Affairs Coordinator for the airline. The scope of work included, among other things, serving as a
member of the North Terminal Development Team ("NTDT") and reviewing minority
participation goals, which were subject to review by the County Commission.
The Ethics Commission found that the employee could assist minority subcontractors and work
with NTDT. However, the Ethics Commission found that the employee could not formulate or
review the minority participation goals because such activity would violate the two year post
employment restrictions, per Section 2-11,1 (q). The Ethics Commission found that such activity
constituted "lobbying" within the meaning of Section 2-11.1 (s), because it involved "seeking to
encourage the passage, defeat or modification or ordinances, resolutions, actions or decisions of
the County Commission, boards or personnel."
99-11 April 6, 1999
In RQO 99-11, the Ethics Commission opined whether two former County employees who
formed their own computer consulting firm could contract with the County to provide computer
services. The Ethics Commission found that the two year post employment restriction found in
Section 2-11.1 (q) did not prevent them from contracting with the County.
98-23
In RQO 98-23 the Ethics Commission considered whether Section 2-11.1(q) (two year rule)
prevented a former County Police psychologist from treating a patient in private practice within
two years of treating that same patient as a police department employee. The Ethics Commission
ruled that Section 2-11.1 (q) did not preclude the former County employee from treating the
patient because the two year rule "only precludes county employees from working on matters in
which they personally and substantially participated as employees if the county is a party to the
matter or retains a direct and substantial interest in the matter." The Ethics Commission found
that since the county did not have any interest in the matter, the proposed work was not barred by
the two year rule.
98-13
In RQO 98-13 the Ethics Commission opined whether the County could accept a plumbing bid
from a former employee of the County's Parks and Recreation Department. The former
employee had submitted a bid to design restrooms at a County park in which he was previously
involved as a plumbing designer for the County. The Ethics Commission found that Section 2-
11.1 (q) (two year rule) prevented the former employee from serving as contractor for the project.
The Ethics Commission found that the two year rule "bars former employees from working for
anyone other than the county on any project in which they had personal and substantial
participation. "
98-11
In RQO 98-11 the Ethics Commission considered whether Section 2-11.1( q) (two year rule)
prohibited a former employee of the County's Animal Care and Control Division from providing
veterinary services to the County through a County contractor. The Ethics Commission
concluded that the two year rule did not prohibit the former County employee from providing
veterinary services to the County because he was not "personally and substantially involved" in
the County's contract with the contractor when he was a County employee.
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FROM:
DATE:
RE:
City of Sunny Isles Beach
18070 Collins Avenue, Suite 250
Sunny Isles Beach, Florida 33160
(305) 947-0606 City Hall
(305) 949-3 I I 3 Fax
(305) 947-2150 Building Department
(305) 947-5 107 Fax
City Commission
Norman S. Edelcup, Mayor
Lewis Thaler, Vice Mayor
Roslyn Brezin, Commissioner
Gerry Goodman, Commissioner
George "Bud" Scholl, Commissioner
Rick Conner, City Manager
Hans Ottinot, City Attorney
Jane A. Hines, CMC, City Clerk
MEMORANDUM
Honorable Mayor and City C~
Hans Ottinot, City AttorneyW'\J
July 27,2010
Amendment to the City's Ethics Code - Post Employment Restrictions
RECOMMENDATION:
This Ordinance is presented for your approval.
REASONS:
The purpose of the amendatory Ordinance is to confirm and ratify the City's Two Year Post
Employment Restriction for former employees and elected officials. When the City adopted its
Ethics Code, it did so with a clear legislative intent on guarding against former officials or
employees from using their influence to corrupt or unduly influence the decision making process
of staff, the City Commission, and its Boards. The Ethics Code of Miami-Dade County is merely
a minimum standard of ethical conduct for municipal officials. The City has the absolute right
under the law to adopt a more stringent Ethics Code.
The City Commission has found post-employment restnctIOn to be good public policy by
adopting a more restrictive policy over the years, The City Commission has determined that
employees recently separated from employment with the City are presumed to have an advantage
over others if they are allowed to exert undue influence, communicate in any manner with the
intent to influence a government decision, give the appearance of corruption or impropriety, or
otherwise subvert the interests of the City to those of a current or prospective employer or any
other person.
This amendatory Ordinance is to affirm that public officials and employees shall be free from
conflicts of interest, personal gain, undue influence, corruption, or any appearance of impropriety
during the government decision making process during judicial, quasi judicial or other
proceedings, More precisely, the City wishes to affirm and clarify that the post employment
restrictions set forth in Chapter 33-3(P) of the City Codc arc unequivocal and absolute
Date
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S~ (0- lO
Agenda Item
restrictions on post employment activities for all officers and employees of the City for a period
of two (2) years following termination of employment, subject to narrowly defined exemptions.
The only exemptions to the two year post employment restriction include in the amended
ordinance:
. officials or employees who become employed by governmental entItles, 501 (c )(3)
nonprofit entities or educational institutions or entities, and who make an appearance on
behalf of such entities in their official capacities.
. Officials or employees who are personally served with a subpoena to testify as a fact
witness in a judicial proceeding in which the City or one of its agencies is a party.
. former employees who receive a zoning notice as provided in Chapter 265 of the City
Code and who desire to comment at a public hearing on the subject matter.
. former employees whose personal or real property is the subject matter of the judicial,
quasi judicial or other proceeding.
. the City Commission may waive the two year post employment restriction if they find the
comments to be in the public interest or find the comments necessary to assist in
understanding of documents that are deemed public records
This amendatory Ordinance further clarifies that the City's post employment restrictions have
never been construed in the same manner as the Miami Dade County's post employment
restrictions were recently construed by the Miami Dade County Commission on Ethics and
Public Trust in Opinion ("Ethics Commission") in RQO 10-19, dated July 20, 2010. The
decision rendered by the Ethics Commission in RQO 10-19 is unprecedented in its history of
written opinions concerning the two year restriction on post employment activity. If the City
accepts the aforementioned opinion as law, elected officials, high level staffers like the City
Manager or City Attorney can represent clients before the City Commission in zoning or bid
protest hearings immediately upon resigning from their positions. Elected officials, City
Manager or the City Attorney can also act as fact or expert witnesses about matters that they were
personally involved in. The opinion issued by the Ethics Commission is contrary to a previous
opinion issued by the Office of the City Attorney on the City's post employment restriction rule
(opinion attached). More disturbing, the recent opinion is contrary to a recent recommendation
adopted by the Ethics Commission regarding the Two Year Rule. The recommendation, which is
contained in a Final Report relating to proposed revisions to the Ethics Code of Miami-Dade
County, sought to broaden the scope of the Two Year Rule by eliminating the non-profit
representation/witness exemption. This recommendation was presented by the Ethics
Commission to the County Commission (see attached County Ordinance). In contrast, the
decision rendered in RQO 10-19 seeks to restrict the scope of the Two Year Rule by creating a
witness exemption when the language of the Ethics Code of Miami-Dade County does not
provide for such exemption. Simply put, it appears that new law was created by RQO 10-19.
Fortunately, this new law is not the controlling law in the City of Sunny Isles Beach.
By adopting this amendatory Ordinance, the City will re-affirm and confirm the purpose and
applicability of the two year post employment restrictions and confirm that RQO 10-19 is not
applicable to the City of Sunny Isles Beach.