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HomeMy WebLinkAboutOrdinance 2010-349 .""".'7'.."'kl.. . ",..:.,. 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 Words added underlined, words stfi6kefl deleted (ed) Page I of 5 ... 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 Words added underlined, words stfi6kefl deleted (ed) Page 2 of 5 ~ 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 Words added underlined, words ~ deleted (ed) Page 3 of 5 -~ 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. Words added underlined, words ~ deleted (ed) Page 4 of 5 " ~ ":. l~ Jane' A. Hines, CMC, City Clerk 'I '" 7 .; ~- "/I APPROVED AS TO FORM AND L UE CIENCY: Vote: S-O Mayor Ede1cup Vice Mayor Thaler Commissioner Brezin Commissioner Goodman Commissioner Scholl Words added underlined, words ~ deleted (ed) ~ Moved by: Co~ ~HOLL Seconded by: ~~ ~<i.2/J ~(Yes) --LL<Yes) v(Yes) ;;/Y es) (Yes) _(No) (NO) _(NO) _(NO) (NO) Page 5 of5 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 - June 1, 2006 ~ 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 - ETHICS, INTEGRITY AND ACCOUNTABILITY TASK FORCE FINAL REPORT Prepared July 2008 ., 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 2 .11 ...ii: 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 3 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. 4 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, 5 '~~'''1J.. ." <~. . 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. 6 ~ 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) 7 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. 8 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. 9 =1 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. 10 ."'T'''ljI . '" 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. 11 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 - 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 ., - 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. - 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 - 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 - 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 - 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 - 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. c: .....' <! 0::, wi ::J:' i:! <! i:! Wi ::J:; ....' E! 0; u, :21 ~! :c: 'E! ~, ~l Nl ~, 1-; Vli 3! ::); <: ~, 0' s! VIi w: z: N! 'it; - 0: .... ~. 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EM" ;;: ~<3< ~~ ~p 8 ~~ g.g~ '" "!if;~~ D:: <( C Z W ..J <( U Ul D:: o m :I: Co:) - W Z 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) 949-3 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 ?)A 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.