Florida Ethics Commissioner to Legislature: Close Loopholes in Reform Bill

By Matt Carlucci

The Florida Senate recently passed Senate Bill 2, a wide-ranging piece of ethics legislation. A version of that bill has already been reviewed by the House Ethics and Elections subcommittee, which will likely issue its own bill soon. SB 2 contains many recommendations made by the Florida Commission on Ethics: the ability to accept referrals from various entities and to place liens on the property of persons who don’t pay their financial disclosure fines chief among them. My colleagues on the Commission and I applaud the inclusion of these important provisions and their commitment to ethics reform.

In my opinion, after further review, there are some potential unintended consequences in the bill, which I hope the House will address: The definition of “special private gain” in the voting conflicts provision is so narrow that it could actually allow votes that are now prohibited.

The proposed financial disclosure provisions would allow officials who file an erroneous disclosure to have a “do-over” if a complaint is filed against them, thus removing any incentive to file the report accurately in the first place.

Finally, the blind trust language gives officials protection from the conflict laws without requiring them to disclose to the public what assets they put in the blind trust. These clearly unintentional oversights could result in weaker ethics laws, exactly the opposite of what the Legislature intends.

In stating the above, I offer only my opinion. Except for its own recommendations, the Commission on Ethics usually does not take a position on proposed legislation, as policymaking is the job of the Legislature. However, there is one aspect of the bill on which the full Commission has taken a position: the provision that says the Commission “shall dismiss” any allegation or violation which is “de minimis,” being defined as “unintentional and not material in nature.”

The Commission already has discretion to dismiss a complaint at any stage if it finds it would not serve the public interest to proceed further. But requiring the Commission to dismiss violations that are “unintentional and not material in nature” means that in every case the Commission will have an additional burden not in current law–to prove that the violation was intentional or material.

Assume a city official votes on something that will benefit him, in violation of the voting conflicts law. His defense is that he didn’t know it was against the law and it didn’t matter anyway, because the measure would have passed even without his vote. Under the proposed language, the Commission will have to prove the official was aware of the law or the violation was so significant that it must be prosecuted. Defense attorneys will indeed argue that their client’s wrongdoing was “unintentional and not material” at every stage of the proceeding, from the initial response to the complaint to the Commission’s final action, and then on appeal, creating substantial litigation and expense to the taxpayer, and making it much harder for the Commission to do its job.

Speaking for myself, I hope the House will take a close look at the bill to close all the unintended loopholes. Speaking for the Commission, I hope the House will at least remove the requirement that the Commission dismiss “de minimis” violations, and allow that to remain a matter for the Commission’s discretion.

Matt Carlucci, one of the nine members of the Florida Commission on Ethics, is a former member of the Jacksonville City Council and the founder and owner of Matthew F. Carlucci Insurance Agency, Inc. He was appointed to the ethics commission by Gov. Rick Scott in 2012. Reach him by email here.