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HomeMy WebLinkAbout2003 08 13 Attached Mailed to Board Members Prior to MeetingDate: August 13, 2003 ATTACHED MAILED TO BOARD MEMBERS PRIOR TO THE AUGUST 13, 2003 REGULAR MEETING FLORIDA COMMISSION ON ETHICS 2002 GUIDE to the SUNSHINE AMENDMENT and CODE of ETHICS for Public Officers and Employees Ronald S. Spencer, Jr., Chair Tallahassee Peter Antonacci John P. Linstroth Tallahassee West Palm Beach Dean C. Colson Howard S. Marks Coral Gables Winter Park Joel K. Gustafson Patrick K. Neal Ft. Lauderdale Bradenton Carol Licko Richard L. Spears Miami Orlando Bonnie J. Williams Executive Director P.O. Drawer 15709 Tallahassee, FL 32317-5709 www.ethics.state.fl.us (850) 488-7864' 'Please direct all requests for information to this number. . TABLE OF CONTENTS F DISCLOSURES ......................................................... .......9 I ± HISTORY OF FLORIDA'S ETHICS LAWS ........................................ 1 1. Form 1 -Limited Financial Disclosure .......... .....10 2. Form 1 F -Final Form 1 ................................. .....12 II. ROLE OF THE COMMISSION ON ETHICS ..................................... 2 3. Form 2 -Quarterly Client Disclosure ............ .....12 4 Form 6 -Full and Public Disclosure .............. .....12 III. THE ETHICS LAWS ......................................................................... 2 5. Form 6F -Final Form 6................................. .....13 6. Form 9 -Quarterly Gift Disclosure ................ .....13 A. PROHIBITED ACTIONS OR CONDUCTS 7. Form 10 -Annual Disclosure of Gifts 1. Solicitation or Acceptance of Gifts .......................... 3 from Governmental Entities and Direct 2. Unauthorized Compensation .................................. 3 Support Organizations and Honorarium 3. Misuse of Public Position ....................................... 3 Event-Related Expenses.............................. .....13 4. Disclosure or Use of Certain Information ............... 3 8. Form 30 -Donor's Quarterly Gift Disclosure .....14 5. Solicitation or Acceptance of Honoraria ................. 3 9. Form 1X and 6X, Amendments .................... .....14 B. PROHIBITED EMPLOYMENT AND IV. AVAI LABILITY OF FORMS .................................................... .....15 BUSINESS RELATIONSHIPS .......................................... 4 1. Doing Business With One's Agency ....................... 4 V. PENALTIES............................................................................ .....15 2. Conflicting Employment or Contractual A. For Violations of the Code of Ethics .......................... .....15 Relationship .......................................................... 4 B. For Violations by Candidates..................................... .....15 3. Exemptions .......................................................... 4 C. For Violations by Former Officers and Employees.... .....16 • 4. Additional Exemption ............................................. 5 D. For Lobbyists and Others .......................................... .....16 5. Lobbying State Agencies by Legislators ................ 5 E. Felony Convictions: Forfeiture of Retirement Benefits ...16 6. Employees Holding Office ..................................... 6 F. Automatic Penalties for Failure to File 7. Professional & Occupational Licensing Board Annual Disclosure ...................................................... .....16 Members ............................................................... 6 8. Contractual Services: Prohibited Employment....... 6 VI. ADVI SORY OPINIONS .......................................................... .....17 9. Local Govemment Attorneys ................................ 6 A. Who Can Request An Opinion .................................. .....17 B. How To Request An Opinion ..................................... .....17 C. RESTRICTIONS ON APPOINTING, EMPLOYING, AND C. How to Obtain Published Opinion .............................. .....17 CONTRACTING WITH RELATIVES ............................. 6 D. POST OFFICEHOLDING AND EMPLOYMENT (REVOLVING DOOR) RESTRICTIONS ........................ 7 1. Lobbying By Former Legislators, Statewide Elected Officers, and Appointed State Officers...... 7 2. Lobbying By Former State Employees ................... 7 3. Additional Restrictions on Former State ~ Employees ..............................................................8 4. Lobbying By Former Local Govemment Officers and Employees ......................................... 8 VII. COMPLAINTS .............................................................................17 A. Citizen Responsibility .....................................................17 B. Confidentiality .................................................................18 C. Complaint Process: How It Works ..................................18 D. Dismissal of Complaint at Any Stage of Disposition.......19 E. Statute of Limitations ......................................................19 VIII. EXECUTIVE BRANCH LOBBYING IX. WHISTLE-BLOWER'S ACT ......... ....................................19 20 E. VOTING CONFLICTS OF INTEREST ............................... 8 X. ADDITIONAL INFORMATION.....................................................20 - FLORIDA COMMISSION ON ETHICS Guide to the " SUNSHINE AMENDMENT and CODE OF ETHICS for PUBLIC OFFICERS and EMPLOYEES I. HISTORY OF FLORIDA'S ETHICS LAWS Florida has been a leader among the states in establishing ethics standards for public officials and recognizing the right of her people to protect the public trust against abuse. Our state constitution was revised in 1968 to require that a code of ethics for all state employees and non judicial officers prohibiting conflict between public duty and private interests be prescribed by law. Florida's first successful constitutional initiative resulted in the adop- tion of the "Sunshine Amendment" in 1976, providing additional constitutional guarantees concerning ethics in govemment. In the area of enforcement, the Sunshine Amendment requires that there be an independent commission (the Commission on Ethics) to investigate complaints concerning breaches of pub- lictrust by public officers and employees other than judges. The "Code of Ethics for Public Officers and Employees" adopted by the Legislature is found in Chapter 112 (Part III) of the Florida Statutes. Fore- most among the goals of the Code is to promote the public interest and main- tain the respect of the people for their govemment. The Code is also intended to ensure that public officials conduct themselves independently and impar- tially, not using their offices for private gain other than compensation provided by law. While seeking to protect the integrity of govemment, the Code also seeks to avoid the creation of unnecessary barriers to public service. Criminal penalties which initially applied to violations of the Code were eliminated in 1974 in favor of administrative enforcement. The Legislature cre- ated the Commission on Ethics that year "to serve as guardian of the stan- dards of conduct" for public officials, state and local. Five of the Commission's nine members are appointed by the Governor, and two each are appointed by the President of the Senate and Speaker of the House of Representatives. No more. th9n five Commission members may be members of the same political party, and~none may hold any public employment during their two-year terms of office. A chair is selected from among the members to serve cone-year term and may not succeed himself or herself. I. ROLE OF THE COMMISSION ON ETHICS In addition to its constitutional duties regarding the investigation of complaints, the Commission: • Renders advisory opinions to public officials; • Prescribes forms for public disclosure; • Prepares mailing lists of public officials subject to financial disclosure for use by Supervisors of Elections and the Commission in distributing forms and notifying delinquent filers; • Makes recommendations to disciplinary officials when appropriate for violations of ethics and disclosure laws, since it does not impose penalties; • Administers the Executive Branch Lobbyist Registration Law; • Maintains financial disclosure filings of constitutional officers and state officers and employees; • Administers automatic fines for public officers and employees who fail to timely file required annual financial disclosure; • Administers automatic fines for public officers and employees who fail to timely file required annual financial disclosure; • Administers automatic • May file suit to void contracts. III. THE ETHICS LAWS The ethics laws generally consist of two types of provisions, those prohibiting certain actions. or conduct and those requiring that certain disclo- sures be made to the public. The following descriptions of these laws are sim- plified to put people on notice of their requirements. Therefore, we also sug- gest that you review the wording of the actual law. Citations to the appropriate laws are contained in brackets. The laws summarized below apply generally to all public officers and employees, state and local, including members of ad- visory bodies. The principal exception to this broad coverage is the exclusion of judges, as they fall within the jurisdiction of the Judicial Qualifications Com- mission. A. PROHIBITED ACTIONS OR CONDUCT 1. Solicitation and Acceptance of Gifts Public officers, employees, local government attorneys, and candi- dates are prohibited from soliciting or accepting anything of value, such as a gift, loan, reward, promise of future employment, favor, or service, that is based on an understanding that their vote, official action, or judgment would be influenced by such gift. [Sec. 112.313(2), Fla. Stat.] - A person required to file financial disclosure FORM 1 or FORM 6 (see part III F of this brochure), as well as a procurement employee for the State, is prohibited from soliciting any gift from a political committee, committee of con- tihuous existence, lobbyist who has lobbied his or her agency within the past 12 months, or the partner, firm, employer, or principal of such a lobbyist. [Section 112.3148, Fla. Stat.] A person required to file FORM 1 or FORM 6, as well as a State pro- curement employee, is prohibited from directly or indirectly accepting a gift worth over $100 from such a lobbyist, from a partner, firm, employer, or princi- pal of the lobbyist, or from a political committee or committee of continuous existence. [Section 112.3148, Fla. Stat.] 2. Unauthorized Compensation Public officers or employees, local govemment attomeys, and their spouses and minor children are prohibited from accepting any compensation, payment, or thing of value when they know, or with the exercise of reasonable care should know, that it is given to influence a vote or other official action. [Sec. 112.313(4), Fla. Stat.] 3. Misuse of Public Position Public officers and employees, and local govemment attomeys are prohibited from corruptly using or attempting to use their official positions to obtain a special privilege for themselves or others. [Sec. 112.313(6), Fla. Stat.] 4. Disclosure or Use of Certain Information Public officers and employees, and local govemment attorneys are prohibited from disclosing or using information not available to the public and obtained by reason of their public positions for the personal benefit of them- selves or others. [Sec. 112.313(8), Fla. Stat.] 5. Solicitation or Acceptance of Honoraria A person required to file financial disclosure FORM 1 or FORM 6 (see part III F of this brochure), as well as a procurement employee for the State, is prohibited from soliciting an honorarium which is related to his or her public office or duties. [Section 112.3149, Fla. Stat.] A person required to file FORM 1 or FORM 6, as well as a State pro- curement employee, is prohibited from knowingly accepting an honorarium from a political committee, committee of continuous existence, lobbyist who has lobbied the person's agency within the past 12 months, or the partner, firm, employer, or principal of such a lobbyist. However, he or she may accept the payment of expenses related to an honorarium event from such individuals or entities, provided that the expenses are disclosed. See part III F of this bro- chure. [Section 112.3149, Fla. Stat.] Lobbyists and their partners, firms, employers, and principals, as well as political committees and committees of continuous existence, are prohib- ited from giving an honorarium to persons required to file FORM 1 or FORM 6 and to State procurement employees. Violations of this law may result in fines of up to $5,000 and prohibitions against lobbying for up to two years. [Section 112.3149, Fla. Stat.] B. PROHIBITED EMPLOYMENT AND BUSINESS RELATIONSHIPS 1. Doing Business With One's Agency (a) A public employee acting as a purchasing agent, or public of- ficer acting in an official capacity, is prohibited from purchasing, renting, or leasing any realty, goods, or services for his or her agency from a business entity in which the officer or employee, his or her spouse, or child own more than a 5% interest. [Sec. 112.313(3), Fla. Stat.] (b) A public officer or employee, acting in a private capacity, also is prohibited from renting, leasing, or selling any realty, goods, or services to his or her own agency if the officer or employee is a state officer or employee, or, if he or she is an officer or employee of a political subdivision, to that subdi- vision or any of its agencies. [Sec. 112.313(3), Fla. Stat.] 2. Conflicting Employment or Contractual Relationship (a) A public officer or employee is prohibited from holding any employment or contract with any business entity or agency regulated by or do- ing business with his or her public agency. [Sec. 112.313(7), Fla. Stat.] (b) A public officer or employee also is prohibited from holding any employment or having a contractual relationship which will pose a fre- quently recurring conflict between private interests and public duties or which will impede the full and faithful discharge of public duties. [Sec. 112.313(7), Fla. Stat.] (c) Limited exceptions to this prohibition have been created in the law for legislative bodies, certain special tax districts, drainage districts, and per- sons whose professions or occupations qualify them to hold their public posi- tions. [Sec. 112.313(7)(a) & (b), Fla. Stat.] 3. Exemptions-The prohibitions against doing business with one's agency and having conflicting employment may not apply: (a) When the business is rotated among all qualified suppliers in a city or county. (b) When the business is awarded by sealed, competitive bidding and the official, his or her spouse, or child have not attempted to persuade agency personnel to enter the contract. NOTE: Disclosure of the interest of the official, spouse, or child and the nature of the business must be filed prior to or at the time of submission of the bid on Commission FORM 3A with the Secretary of State or Supervisor of Elections, depending on whether the offi- 4 vial serves at the state or local level. (c) When the purchase or sale is for legal advertising, utilities ser- vice, or for passage on a common carrier. ' (d) When an emergency purchase must be made to protect the public health, safety, or welfare. (e) When the business entity is the only source of supply within the political subdivision and there is full disclosure of the official's interest to the governing body on Commission FORM 4A. (f) When the aggregate of any such transactions does not ex- ceed $500 in a calendar year. (g) When the business transacted is the deposit of agency funds in a bank of which a county, city, or district offiaal is an officer, director, or stockholder, so long as agency records show that the governing body has de- termined that the member did not favor his or her bank over other qualified banks. (h) When the prohibitions are waived in the case of ADVISORY BOARD MEMBERS by the appointing person or by atwo-thirds vote of the appointing body (after disclosure on Commission FORM 4A). (i) When the public officer or employee purchases in a private capacity goods or services, at a price and upon terms available to similarly situated members of the general public, from a business entity which is doing business with his or her agency. (j) When the public officer or employee in a private capacity pur- chases goods or services from a business entity which is subject to the regu- lation of his or her agency where the price and terms of the transaction are available to similarly situated members of the general public and the officer or employee makes full disclosure of the relationship to the agency head or gov- erning body prior to the transaction. [Sec. 112.313(12), Fla. Stat.] 4. Additional Exemption No elected public officer is in violation of the conflicting employment prohibition when employed by a tax exempt organization contracting with his or her agency so long as the officer is not directly or indirectly compensated as a result of the contract, does not participate in any way in the decision to enter into the contract, abstains from voting on any matter involving the em- ployer, and makes certain disclosures. [Sec. 112.313(14), Fla. Stat.] 5. Lobbying State Agencies By Legislators 'A member of the Legislature is prohibited from representing another person orsentity for compensation during his or her term of office before any state agency other than judicial tribunals. [Art II, Sec. 8(e), Fla. Const. and Sec. 112.313(9), Fla. Stat.] 6. Employees Holding Office A public employee is prohibited from being a member of the governing body which serves as his or her employer. [Sec. 112.313(10), Fla. Stat.] 7. Professional and Occupational Licensing Board Members An officer, director, or administrator of a state, county, or regional pro- fessional or occupational organization or association, while holding such posi- tion, may not serve as a member of a state examining or licensing board for the profession or occupation. [Sec. 112.313(11), Fla. Stat.] 8. Contractual Services: Prohibited Employment A state employee of the executive or judicial branches who partici- pates in the decision-making process involving a purchase request, who influ- ences the content of any specification or procurement standard, or who ren- ders advice, investigation, or auditing, regarding his or her agency's contract for services, is prohibited from being employed with a person holding such a contract with his or her agency. [Sec. 112.3185(2), Fla. Stat.] 9. Local Government Attorneys Local government attorneys and their law firms are prohibited from representing private individuals and entities before the unit of local govern- ment which they serve. A local government attorney cannot recommend or otherwise refer to his or her firm legal work involving the local government unit unless the attorney's contract authorizes or mandates the use of that firm. C. RESTRICTIONS ON APPOINTING, EMPLOYING, AND CONTRACTING WITH RELATIVES 1. Anti-Nepotism Law A public official is prohibited from seeking for a relative any appoint- ment, employment, promotion or advancement in the agency in which he or she is serving or over which the official exercises jurisdiction or control. No person may be appointed, employed, promoted, or advanced in or to a posi- tion in an agency if such action has been advocated by a related public official who is serving in or exercising jurisdiction or control over the agency; this in- cludes relatives of members of collegial government bodies. NOTE: This pro- hibition does not apply to school districts, community colleges, and state uni- versities, or to appointments of boards in municipalities of less than 35,000, other than those with land-planning or zoning responsibilities. Also, the ap- proval of budgets does not constitute "jurisdiction or control" for the purposes of this prohibition. This provision does not apply to volunteer emergency medical, firefighting, or police service providers. [Sec. 112.3135, Fla. Stat.) 5 2: Additional Restrictions A state employee of the executive or judicial branches or the PSC is prohibited from directly or indirectly procuring contractual services for his or h'er agency from a business entity of which a relative is an officer, partner, di- rector, or proprietor, or in which the employee, his or her spouse, and children own more than a 5% interest. (Sec. 112.3185(6), Fla. Stat.] D. POST OFFICEHOLDING AND EMPLOYMENT (REVOLVING DOOR) RESTRICTIONS 1. Lobbying by Former Legislators, Statewide Elected Officers, and Ap- pointed State Officers A member of the Legislature or a statewide elected or appointed state official is prohibited for two years following vacation of office from representing another person or entity for compensation before the govemment body or agency of which the individual was an officer or member. [Art. II, Sec. 8(e), Fla. Const. and Sec. 112.313(9), Fla. Stat.] This applies to appointed State officers who are appointed on or after Jan. 1, 1995. 2. Lobbying by Former State Employees Certain employees of the executive and legislative branches of state govemment are prohibited from personally representing another person or en- tity for compensation before the agency with which they were employed for a period of two years after leaving their positions, unless employed by another agency of state govemment. [Sec. 112.313(9), Fla. Stat.] These employees include the following: (a) Executive and legislative branch employees serving in the SENIOR MANAGEMENT SERVICE and SELECTED EXEMPT SERVICE, as well as any person employed by the DEPARTMENT OF THE LOTTERY hav- ing authority over policy or procurement. (b) Persons serving in the following position classifications: the Auditor General; the director of the Office of Program Policy Analysis and Govemment Accountability (OPPAGA); the Sergeant at Arms and Secretary of the Senate; the Sergeant at Arms and Clerk of the House of Representa- tives; the executive director of the Legislative Committee on Intergovernmen- tal Relations and the executive director and deputy executive director of the Commission on Ethics; an executive director, staff director, or deputy staff di- rector of each joint committee, standing committee, or select committee of the Legislature; an executive director, staff director, executive assistant, legislative analyst, or attorney serving in the Office of the President of the Senate, the Office of the Speaker of the House of Represen- tatives, the Senate Majority Party Office, the Senate Minority Party Office, the House Majority Parry Office, the House Minority Party Office; the Chancellor and Vice-Chancellors of the State University System; the general counsel to the Board of Regents; the president, vice presidents, and deans of each state university; any person hired on a contractual basis and having the power nor- mally conferred upon such persons, by whatever title; and any person having the power normally conferred upon the above positions. This prohibition does not apply to a person who was employed by the Legislature or other agency prior to July 1, 1989; who was employed by the Legislature or other agency on July 1, 1989; who was a defined employee of the SUS or the PSC who held such employment on December 31, 1994; or who reached normal retirement age and retired by July 1, 1991. PENALTIES: Persons found in violation of this section are subject to the penalties contained in the Code (see PENALTIES, Part V) as well as a civil penalty in an amount equal to the compensation which the person re- ceives for the prohibited conduct. [Sec. 112.313(9)(a)5., Fla. Stat.] 3. Additional Restrictions on Former State Employees A former executive or judicial branch employee or PSC employee is prohibited from having employment or a contractual relationship, at any time after retirement or termination of employment, with any business entity (other than a public agency) in connection with a contract in which the employee par- ticipated personally and substantially by recommendation or decision while a public employee. [Sec. 112.3185(3), Fla. Stat.] A former executive or judicial branch state employee or PSC em- ployee who has retired or terminated employment is prohibited from having any employment or contractual relationship for two years with any business entity (other than a public agency) in connection with a contract for services which was within his or her responsibility while serving as a state employee. [Sec. 112.3185(4), Fla. Stat.] Unless waived by the agency head, a former executive or judicial branch state employee or PSC employee may not be paid more for contrac- tual services provided by him or her to the former agency during the first year after leaving the agency than his or her annual salary before leaving. [Sec. 112.3185(5), Fla. Stat.] These prohibitions do not apply to PSC employees who were so em- ployed on or before Dec. 31, 1994. 4. Lobbying by Former Local Government Officers and Employees A person elected to county, municipal, school district, or special dis- trict office is prohibited from representing another person or entity for compen- sation before the government body of which he or she was an officer for two years after leaving office. This does not apply to an elected official who held office on October 1, 1992 or a school district official who held office on Janu- ary 1, 1995, until reelected after that date. Appointed officers and employees of counties, municipalities, school districts, and special districts may be sub- ject to a similar restriction by local ordinance or resolution. [Sec. 112.313(13) and (14), Fla. Stat.] 7 E. VOTING CONFLICTS OF INTEREST NO STATE PUBLIC OFFICIAL is prohibited from voting in an official Capacity on any matter. However, a STATE PUBLIC OFFICER who votes on a measure which inures to his or her special private gain or loss, or which the officer knows would inure to the special private gain or loss of any PRINCIPAL by whom he or she is retained, of the PARENT ORGANIZATION or SUBSIDI- ARY of a CORPORATE PRINCIPAL by which he or she is retained, of a RELATIVE, or of a BUSINESS ASSOCIATE, must file a memorandum of vot- ing conflict on Commission FORM 8A with the recording secretary within 15 days after the vote occurs, disclosing the nature of his or her interest in the matter. NO COUNTY, MUNICIPAL, or other LOCAL PUBLIC OFFICER shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss, or which the officer knows would inure to the spe- cial private gain or loss of any PRINCIPAL by whom he or she is retained, of the PARENT ORGANIZATION or SUBSIDIARY of a CORPORATE PRINCI- PAL by which he or she is retained, of a RELATIVE, or of a BUSINESS AS- SOCIATE. The officer must publicly announce the nature of his or her interest before the vote and must file a memorandum of voting conflict on Commission FORM 8B with the meeting's recording officer within 15 days after the vote oc- curs disclosing the nature of his or her interest in the matter. However, mem- bers of community redevelopment agencies and district officers elected on a one-acre, one-vote basis are not required to abstain. NO APPOINTED STATE OR LOCAL OFFICER shall PARTICIPATE in any matter which would inure to the officer's special private gain or loss, the special private gain or loss of any PRINCIPAL by whom he or she is retained, of the PARENT ORGANIZATION or SUBSIDIARY of a CORPORATE PRIN- CIPAL by which he or she is retained, of a RELATIVE or of a BUSINESS AS- SOCIATE, without first disclosing the nature of his or her interest in the matter. The memorandum of voting conflict (Commission FORM SA or 8B) must be filed with the meeting's recording officer, be provided to the other members of the agency, and be read publicly at the next meeting. If the conflict is unknown or not disclosed prior to the meeting, the ap- pointed official must orally disclose the conflict at the meeting when the con- flict becomes known. Also, a written memorandum of voting conflict must be filed with the meeting's recording officer within 15 days of the disclosure being made and must be provided to the other members of the agency with the dis- closure being read publicly at the next scheduled meeting. [Sec. 112.3143, Fla. Stat.]~ F. DISCLOSURES Conflicts of interest may occur when public officials are in a position to make decisions which affect their personal financial interests. This is why pub- Iic officers and employees, as well as candidates who run for public office, are required to publicly disclose their financial interests. The disclosure process serves to remind officials of their obligation to put the public interest above personal considerations. It also helps citizens to monitor the considerations of those who spend their tax dollars and participate in public policy decisions or administration. All public officials and candidates do not file the same degree of dis- closure; nor do they all file at the same time or place. Thus, care must be taken to determine which disclosure forms a particular official or candidate is required to file. The following forms are described below to set forth the requirements of the various disclosures and the steps for correctly providing the information in a timely manner. 1. FORM 1 -Limited Financial Disclosure Who Must File: Persons required to file FORM 1 include all state officers, local offi- cers, candidates for local elective office, and specified state employees as de- fined below (other than those officers who are required by law to file FORM 6). STATE OFFICERS include: (1) Appointed members of any board having statewide jurisdiction, ex- cluding members of boards which are solely advisory; (2) Members of the Board of Regents, the chancellor and vice-chancellor of the state university system, and presidents of state universities; (3) Members of Judicial Nominating Commissions; and (4) All elected public officers (excluding congressional) not covered under "local officers" and any person appointed to fill a vacancy in such elective of- fice. LOCAL OFFICER includes: (1) Any person elected to office in any political subdivision and any per- son appointed to fill a vacancy for an unexpired term in such elective office; (2) An appointed member of certain boards of political subdivisions, in- cluding governing bodies, expressway and transportation authorities, commu- nity colleges, code enforcement boards, bodies with planning or zoning pow- ers, and pension boards; (3) Any other appointed local government board member who has been required to file by the appointing authority; (4) A mayor and the chief administrative officer of a county, municipality, or other political subdivision; (5) Any person holding one or more of the following positions within a county or municipality: city or county attorney; chief building inspector; water resources coordinator; pollution control director; environmental control direc- tor; administrator with power to grant or deny a land development permit; (6) A chief of police; fire chief; municipal clerk; district school superinten- dent; community college president; medical examiner; and a purchasing agent 10 f~aving the authority to make any purchase exceeding $15,000 for any political subdivision of the state or any entity thereof. SPECIFIED STATE EMPLOYEE includes: (1) The Public Counsel created by Chapter 350; an assistant state attor- ney, an assistant public defender, afull-time state employee who serves as counsel or assistant counsel to any state agency; an administrative law judge; and a hearing officer; (2) Any person employed in the offices of the Governor or member of the Cabinet who is exempt from the career service system, except those persons in clerical, secretarial, or similar positions; (3) Each appointed secretary, assistant secretary, deputy secretary, ex- ecutive director, assistant executive director, or deputy executive director of each state department, commission, board, or council; and the division direc- tor, assistant division director, deputy director, bureau chief, or assistant bu- reau chief of any state department or division, or persons having the power normally conferred upon such person by whatever title; (4) A superintendent or institute director of a state mental health institute established for training and research in the mental health field or of any major state institution or facility for corrections, training, treatment, or rehabilitation; (5) A business manager, purchasing agent having the power to make any purchase exceeding $15,000; finance and accounting director, personnel offi- cer, and grants coordinator for any state agency; (6) Any person employed in the legislative branch of govemment, except persons employed in maintenance, clerical, secretarial, or similar positions and legislative assistants exempted by the presiding officer of their house; and (7) Each employee of the Ethics Commission. What Must Be Disclosed: FORM 1 requirements are set forth fully on the form. In general, this includes the reporting person's sources and types of financial interests, such as the names of employers and addresses of real property holdings. NO DOL- LAR VALUES ARE REQUIRED TO BE LISTED. In addition, the form requires the disclosure of certain relationships with, and ownership interests in, speci- fied types of businesses such as banks, savings and loans, insurance compa- nies, and utility companies. When tb File: C,~INDIDATES for elected local office must file FORM 1 together with and at the same time they file their qualifying papers. STATE and LOCAL OFFICERS and SPECIFIED STATE EMPLOY- EES are required to file disclosure by July 1 of each year. They also must file within thirty days from the date of appointment or the beginning of employ- ment. Those appointees requiring Senate confirmation must file prior to confir- mation. Where to File: Each LOCAL OFFICER files FORM 1 with the Supervisor of Elections in the county in which he or she permanently resides. A STATE OFFICER or SPECIFIED STATE EMPLOYEE files with the Commission on Ethics. [Sec. 112.3145, Fla. Stat.] 2. FORM 1 F -Final Form 1 Limited Financial Disclosure FORM 1 F is the disclosure form required to be filed within 60 days af- ter apublic officer or employee required to file FORM 1 leaves his or her pub- lic position. The form covers the disclosure period between January 1 and the last day of office or employment within that year. 3. FORM 2 -Quarterly Client Disclosure The state officers, local officers, and specified state employees as listed above, as well as elected constitutional officers, must file a FORM 2 if they or a partner or associate of their professional firm represent a client for compensation before an agency at their level of government. A FORM 2 disclosure includes the names of clients represented by the reporting person or by any partner or associate of his or her professional firm for a fee or commission before agencies at the reporting person's level of government. Such representations DO NOT INCLUDE appearances in minis- terial matters, appearances before judges of compensation claims, or repre- sentations on behalf of one's agency in one's official capacity. Nor does the term include the preparation and filing of forms and applications merely for the purpose of obtaining or transferring a license, so long as the issuance of the license does not require a variance, special consideration, or a certificate of public convenience and necessity. When to File: This disclosure should be filed quarterly, by the end of the calendar quarter following the calendar quarter during which a reportable representa- tion was made. FORM 2 need not be filed merely to indicate that no reportable representations occurred during the preceding quarter; it should be filed ONLY when reportable representations were made during the quarter. Where To File: LOCAL OFFICERS file with the Supervisor of Elections of the county in which they permanently reside. STATE OFFICERS and SPECIFIED STATE EMPLOYEES file with the Commission on Ethics. [Sec. 112.3145(4), Fla. Stat.j 11 12 4. FORM 6 -Full and Public Disclosure Who Must File: Persons required by law to file FORM 6 are all elected constitutional offi- Lers and candidates for such office; the Mayor and members of the City Council and candidates for these offices in Jacksonville and St. Petersburg; the Duval County Superintendent of Schools; Judges of Compensation Claims; and mem- bers of the Florida Housing Finance Corporation Board, the Florida Commission on Tourism, the Occupational Access and Opportunity Commission, the Florida Black Business Investment Board, and the Florida Prepaid College Board. What Must be Disclosed: FORM 6 is a detailed disclosure of assets, liabilities, and sources of in- come over $1,000 and their values, as well as net worth. Officials may opt to file their most recent income tax return in lieu of listing sources of income but still must disclose their assets, liabilities, and net worth. In addition, the form requires the disclosure of certain relationships with, and ownership interests in, specified types of businesses such as banks, savings and loans, insurance companies, and utility companies. When and Where To File: Incumbent officials must file FORM 6 annually by July 1 with the Com- mission on Ethics. CANDIDATES must file with the officer before whom they qualify at the time of qualifying. [Art. II, Sec. 8(a) and (i), Fla. Const., and Sec. 112.3144, Fla. Stat.] 5. FORM 6F -Final Form 6 Full and Public Disclosure FORM 6F is the disclosure form required to be filed within 60 days after a public officer or employee required to file FORM 6 leaves his or her public po- sition. The form covers the disclosure period between January 1 and the last day of office or employment within that year. 6. FORM 9 -Quarterly Gift Disclosure Each person required to file FORM 1 or FORM 6, and each State pro- curement employee, must file a FORM 9, Quarterly Gift Disclosure, with the Commission on Ethics on the last day of any calendar quarter following the cal- endarquarter in which he or she received a gift worth over $100, other than gifts from relatives, gifts prohibited from being accepted, gifts primarily associated with his or her business or employment, and gifts otherwise required to be dis- closed.'FORM 9 NEED NOT BE FILED if no such gift was received during the calendar quarter. InfoRnation to be disclosed includes a description of the gift and its value, the name and address of the donor, the date of the gift, and a copy of any receipt for the gift provided by the donor. [Sec. 112.3148, Fla. Stat.] 7. FORM 10 -Annual Disclosure of Gifts from Government Agencies and Direct-Support Organizations and Honorarium Event Related Expenses State government entities, airport authorities, counties, municipalities, school boards, water management districts, the Tri-County Commuter Rail Au- thority, and the Technological Research and Development Authority may give a gift worth over $100 to a person required to file FORM 1 or FORM 6, and to State procurement employees, if a public purpose can be shown for the gift. Also, adirect-support organization for a governmental entity may give such a gift to a person who is an officer or employee of that entity. These gifts are to be re- ported on FORM 10, to be filed by July 1. The governmental entity or direct-support organization giving the gift must provide the officer or employee with a statement about the gift no later than March 1 of the following year. The officer or employee then must disclose this information by filing a statement by July 1 with his or her annual financial disclo- sure that describes the gift and lists the donor, the date of the gift, and the value of the total gifts provided during the calendar year. State procurement employ- ees file their statements with the Commission on Ethics. [Sec. 112.3148, Fla. Stat. ] In addition, a person required to file FORM 1 or FORM 6, or a State pro- curement employee, who receives expenses or payment of expenses related to an honorarium event from someone who is prohibited from giving him or her an honorarium, must disclose annually the name, address, and affiliation of the do- nor, the amount of the expenses, the date of the event, a description of the ex- penses paid or provided, and the total value of the expenses on FORM 10. The donor paying the expenses must provide the officer or employee with a state- ment about the expenses within 60 days of the honorarium event. Honorarium related expenses from someone who does not employ a lobbyist do not have to be reported. The disclosure must be filed by July 1, for expenses received during the previous calendar year, with the officer's or employee's FORM 1 or FORM 6. State procurement employees file their statements with the Commission on Eth- ics. [Sec. 112.3149, Fla. Stat., as created by Ch. 90-502, Laws of Fla.] 8. FORM 30 -Donor's Quarterly Gift Disclosure As mentioned above, the following persons and entities generally are prohibited from giving a gift worth over $100 to a reporting individual (a person required to file FORM 1 or FORM 6) or to a State procurement employee: a po- litical committee or committee of continuous existence; a lobbyist who lobbies the reporting individual's or procurement employee's agency; and the partner, firm, employer, or principal of such a lobbyist. If such person or entity makes a gift worth between $25 and $100 to a reporting individual or State procurement employee (that is not accepted in behalf of a governmental entity or charitable organization), the gift should be reported on FORM 30. The donor also must no- tify the recipient at the time the gift is made that it will be reported. The FORM 30 should be filed by the last day of the calendar quarter fol- lowing the calendar quarter in which the gift was made. If the gift was made to 13 14 an individual in the legislative branch, FORM 30 should be filed with the Lobbyist Registrar. If the gift was to any other reporting individual or State procurement employee, FORM 30 should be filed with the Commission on Ethics. 9. FORM 1X AND FORM 6X -Amendments to Form 1 and Form 6 These forms are provided for officers or employees who want to amend their previously filed Form 1 or Form 6. IV. AVAILABILITY OF FORMS LOCAL OFFICERS and EMPLOYEES who must file annually FORMS 1 or 10 will be sent these forms by mail from the Supervisor of Elections in the county in which they permanently reside not later than JUNE 1 of each year. Newly elected and appointed officials or employees should contact the board of their agency for copies of the forms, as should those persons who are required to file their final disclosure statements within 60 days of leaving office or employ- ment. ELECTED CONSTITUTIONAL OFFICERS, OTHER STATE OFFICERS, and SPECIFIED STATE EMPLOYEES who must fete annually FORMS 1, 6 or 10 will be sent these forms by mail from the Commission on Ethics by JUNE 1 of each year. Newly elected and appointed officers and employees should contact the heads of their agencies or the Commission on Ethics for copies of the forms, as should those persons who are required to file their final disclosure statements within 60 days of leaving office or employment. Any person needing one or more of the other forms described here may obtain them upon request from a Supervisor of Elections or from the Commis- sion on Ethics, P.O. Drawer 15709, Tallahassee, Florida 32317-5709. They are also available on the Commission's website: www.ethics.state.fl.us. V. PENALTIES A. Non-criminal Penalties for Violation of the Sunshine Amendment and the Code of Ethics There are no criminal penalties for violation of the Sunshine Amendment and the Code of Ethics. Penalties for violation of those laws may include: im- peachment, removal from office or employment, suspension, public censure, reprimand, demotion, reduction in salary level, forfeiture of no more than one- third salary per month for no more than twelve months, a civil penalty not to ex- ceed $10000, and restitution of any pecuniary benefits received. B. Penalties for Candidates CANDIDATES for public office who are found in violation of the Sun- shine Amendment or the Code of Ethics may be subject to one or more of the following penalties: disqualification from being on the ballot, public censure, rep- rimand, or a civil penalty not to exceed $10,000. C. Penalties for Former Officers and Employees FORMER PUBLIC OFFICERS or EMPLOYEES who are found in viola- tion of a provision applicable to former officers or employees or whose violation occurred prior to such officer's or employee's leaving public office or employment may be subject to one or more of the following penalties: public censure and rep- rimand, acivil penalty not to exceed $10,000, and restitution of any pecuniary benefits received. [Sec. 112.317, Fla. Stat.] D. Penalties for Lobbyists and Others An executive branch lobbyist who has failed to comply with the Execu- tive Branch Lobbying Registration law (see Part VIII) may be fined up to $5,000, reprimanded, censured, or prohibited from lobbying executive branch agencies for up to 2 years. Lobbyists, their employers, principals, partners, and firms, and political committees and committees of continuous existence who give a prohibited gift or honorarium or fail to comply with the gift reporting requirements for gifts worth between $25 and $100 may be penalized by a fine of not more than $5,000 and a prohibition on lobbying, or employing a lobbyist to lobby, before the agency of the public officer or employee to whom the gift was given for up to 2 years. Executive Branch Lobbyists who fail to timely file their biannual expendi- ture reports may be fined $50.00 per day per principal for each day the report is late, up to a maximum fine of $5,000 per report. E. Felony Convictions: Forfeiture of Retirement Benefits Public officers and employees are subject to forfeiture of all rights and benefits under the retirement system to which they belong if convicted of certain offenses prior to their retirement. The offenses include embezzlement or theft of public funds; bribery; felonies specified in Chapter 838, Florida Statutes; im- peachable offenses; and felonies committed with intent to defraud the public or their public agency. [Sec. 112.3173, Fla. Stat.] F. Automatic Penalties for Failure to File Annual Disclosure Public officers and employees required to file either Form 1 or Form 6 annual financial disclosure are subject to automatic fines of $25 for each day late the form is filed after September 1, up to a maximum penalty of $1,500. [Sec. 112.3144 and 112.3145, Fla. Stat.] 15 16 VI. ADVISORY OPINIONS Conflicts of interest may be avoided by greater awareness of the ethics .laws on the part of public officials and employees through advisory assistance from the Commission on Ethics. A. Who Can Request an Opinion Any public officer, candidate for public office, or public employee in Flor- ida who is in doubt about the applicability of the standards of conduct or disclo- sure laws to himself or herself, or anyone who has the power to hire or terminate another public employee, may seek an advisory opinion from the Commission about himself or herself or that employee. B. How to Request an Opinion Opinions may be requested by letter presenting a question based on a real situation and including a detailed description of the situation. Opinions are issued by the Commission and are binding on the conduct of the person who is the subject of the opinion, unless material facts were omitted or misstated in the request for the opinion. Published opinions will not bear the name of the persons involved unless they consent to the use of their names. C. How to Obtain Published Opinions Published opinions of the Commission on Ethics from 1974 through 1999 are available for purchase at prices below their actual cost. The opinions are printed in looseleaf volumes containing asubject-matter index and a citator to all Florida Statutes and State constitutional provisions construed or relied upon by the Commission. Every agency of govemment should have a set of opinions for ready reference when the need arises. All of the Commission's opinions are available for viewing or download at its website: www.ethics.state.fl.us. The Commission also publishes a Digest of its advisory opinions which is available to anyone upon request. The Digest is published quarterly and is sent free of charge. The order form at the end of this booklet may be used to re- quest copies of the Commission's published opinions. VII. COMPLAINTS A. A~Citizen's Responsibility The Commission on Ethics cannot conduct investigations of alleged vio- lations of the Sunshine Amendment or the Code of Ethics unless a person files a sworn complaint with the Commission alleging such violation has occurred. If you have knowledge that a person in government has violated the standards of conduct or disclosure laws described above, you may report these violations to the Commission by filing a sworn complaint on the form prescribed by the Commission. Otherwise, the Commission is unable to take action, even after learning of such misdeeds through newspaper reports and phone calls. Should you desire assistance in obtaining or completing a complaint form (FORM 50), you may receive either by contacting the Commission office at the address or phone number shown on the inside front cover of this booklet. B. Confidentiality The complaint, as well as all proceedings and records relating to the complaint, are confidential until the accused requests that such records be made public or until the complaint reaches a stage in the Commission's proceedings where it becomes public. This means that unless the Commission receives a written waiver of confidentiality from the accused, the Commission is not free to release any documents or to comment on a complaint to members of the public or press, so long as the complaint remains in a confidential stage. IN NO EVENT MAY A COMPLAINT BE FILED OR DISCLOSED WITH RE- SPECT TO A CANDIDATE FOR ELECTION WITHIN 5 DAYS PRECEDING THE ELECTION DATE. C. How the Complaint Process Works The Commission staff must forward a copy of the original sworn com- plaint to the accused within five days of its receipt. Any subsequent sworn amendments to the complaint also are transmitted within five days of their re- ceipt. Once a complaint is filed, there are three procedural stages which it goes through under the Commission's rules. The first stage is a determination of whether the allegations of the complaint are legally sufficient, that is, whether they indicate a possible violation of any law over which the Commission has ju- risdiction. If the complaint is found not to be legally sufficient, the Commission will order that the complaint be dismissed without investigation, and all records relating to the complaint will become public at that time. If the complaint is found to be legally sufficient, a preliminary investiga- tion will be undertaken by the investigative staff of the Commission. The second stage of the Commission's proceedings involves this preliminary investigation and a decision by the Commission of whether there is probable cause to believe that there has been a violation of any of the ethics laws. If the Commission finds no probable cause to believe there has been a violation of the ethics laws, the complaint will be dismissed and will become a matter of public record. If the Commission finds probable cause to believe there has been a violation of the ethics laws, the complaint becomes public and usually enters the third stage of proceedings. This stage requires the Commission to decide whether the law was 17 ~g actually violated and, if so, whether a penalty should be recommended. At this stage, the accused has the right to request a public hearing (trial) at which evi- dence is presented or the Commission may order that such a hearing be held. Public hearings usually are held in or near the area where the alleged violation occurred. When the Commission concludes that a violation has been commit- ted, it may recommend one or more penalties to the appropriate disciplinary body or official and issues a public report of its findings. When the Commission determines that a person has filed a complaint with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations, the complainant will be liable for costs plus reasonable attorney's fees in- curred by the person complained against. The Department of Legal Affairs may bring a civil action to recover such fees and costs, if they are not paid willingly. D. Dismissal of Complaints At Any Stage of Disposition The Commission may, at its discretion, dismiss any complaint at any stage of disposition should it determine that the public interest would not be served by proceeding further, in which case the Commission will issue a pub- lic report stating with particularity its reasons for the dismissal. [Sec. 112.324 (10), Fla. Siat.] E. Statute of Limitations All sworn complaints alleging a violation of the Sunshine Amendment or the Code of Ethics have to be filed with the Commission within 5 years of the alleged violation or other breach of the public trust. Time starts to run on the day AFTER the violation or breach of public trust is committed. The statute of limitations is tolled on the day a sworn complaint is filed with the Commis- sion. If a complaint is filed and the statute of limitations has run, the complaint will be dismissed. [Sec. 112.3231, Fla. Stat.] VIII. EXECUTIVE BRANCH LOBBYING Any person who, for compensation and on behalf of another, lobbies an agency of the executive branch of state government with respect to a deci- sion in xhe area of policy or procurement may be required to register as an ex- ecutive branch lobbyist. Registration is required before lobbying an agency and is rerleyvable annually. In addition, expenditure reports must be filed bian- nually whether or not lobbying expenditures are made. [Sec. 112.3215, Fla. Stat.] Paying an executive branch lobbyist a contingency fee based upon the outcome of any specific executive branch action, and receiving such a fee, is prohibited. A violation of this prohibition is a first degree misdemeanor, and the amount received is subject to forfeiture. This does not prohibit sales peo- ple from receiving a commission. [Sec. 112.3217, Fla. Stat.] Executive branch departments, state universities, community col- leges, and water management districts are prohibited from using public funds to retain an executive branch (or legislative branch) lobbyist, although these agencies may use full-time employees as lobbyists. [Sec. 11.062, Fla. Stat.] Additional information about the executive branch lobbyist registration system may be obtained by contacting the Lobbyist Registrar at the following address: Executive Branch Lobbyist Registration Room G-68, Claude Pepper Building 111 W. Madison Street Tallahassee, FL 32399-1425 Phone: 850/922-4990 IX. WHISTLE-BLOWER'S ACT In 1986, the Legislature enacted a "Whistleblower's Act" to protect employees of agencies and government contractors from adverse personnel actions in retaliation for disclosing information in a sworn complaint alleging certain types of improper activities on the part of an agency contractor, or for participating in an investigation or hearing conducted by an agency. Since then, the Legislature has revised this law to afford greater pro- tection to these employees. While this language is contained within the Code of Ethics, the Com- mission has no jurisdiction or authority to proceed against persons who violate this Act in behalf of a person who is being retaliated against. Therefore, a per- son who has disclosed information alleging improper conduct governed by this law and who may suffer adverse consequences as a result should contact one or more of the following: the Office of the Chief Inspector General in the Ex- ecutive Office of the Governor; the Department of Legal Affairs; the Florida Commission on Human Relations; or a private attorney. [Sec. 112.3187 - 112.31895, Fla. Stat.] X. ADDITIONAL INFORMATION As mentioned above, we suggest that you review the language used in each law for a more detailed understanding of Florida's ethics laws. The "Sunshine Amendment" is Article II, Section 8, of the Florida Constitution. The Code of Ethics for Public Officers and Employees is contained in Part III of Chapter 112, Florida Statutes. Additional information about the Commission's functions and interpre- tations of these laws may be found in Chapter 34 of the Florida Administrative Code, where the Commission's rules are published, and in The Florida Admin- 19 20 istrative Law Reports, which publishes many of the Commission's final orders. The Commission's rules, orders, and opinions also are available electronically on the Internet at www.ethics.state.fl.us. If you are a public officer or employee concerned about your obliga- tions under these laws, you may wish to contact an attorney who represents your agency or a private attorney for advice. The staff of the Commission will be happy to respond to oral and written inquiries by providing information about the law, the Commission's interpretations of the law, and the Commis- sion's procedures. 21