In 2018, Florida voters ratified Amendment 12, with a six-year waiting period before officials may lobby.
That means lobbying restrictions, which will likely bind Mayor Tracy Upchurch.
Upchurch law family scion, a former mayor and statute legislator, Flagler College Professor Upchurch's rushed coronation by City Commission March 4, 2019 was the Triple Crown of Lawbreaking? Did it violate the First Amendment and Florida Statutes 119 and 286, depriving the public of meaningful participation.
The 33-minute coronation ritual was falsely stated to be an."election" by Assistant City Attorney John Cary. (His opinion eliminated the option of electing a current City Commissioner, saying the resign-to-run rule applied and that the Commissioners would had to have resigned on the day of Mayor Shaver's resignation after her February 25, 2019 stroke.
In a complaint filed against former Vice Mayor Donald Crichlow by Tom Reynolds, the Florida Ethics Commission ruled that a person picked to fill a city commission vacancy is not bound by post-employment restrictions on lobbying, because the statute uses the word "elected."
One month after leaving office, architect Crichlow lobbied Mayor Nancy Shaver at breakfast on New Year's Day 2015, seeking support for DAVID BARTON CORNEAL'S DOW PUD, now "The Collector.
Crichlow was chosen to fill a vacancy left by William Leary's resignation and FEC bought Crichlow's argument that his unseemly lobbying was exempt because he was appointed and not elected. Thin Baloney? Yep.
But having called it an "election," City lawyers probably can't escape ethics law coverage for Crichlow's post-employment lobbying of the City, e.g., on behalf of Flagler College, his employer.
St. Augustine Mayor Upchurch must be bound by Amendment 12's six-year post-employment restrictions on lobbying, just like his four colleagues.
State panel tightens ethics rules for Florida’s public officials
An effort to raise ethical standards for Florida politicians and public employees has passed a critical test.
More than 6 million voters approved a Florida Constitutional Amendment 12 last fall, in hopes of strengthening the state’s rules against public officials using their positions for public gain. The amendment got the most votes among the dozen constitutional changes on the 2019 general election ballot.
And last week, the Florida Ethics Commission voted unanimously to advance a rule to carry out the voters’ will. The new rule – which could face more challenges – makes it harder for public officials to get a “disproportionate benefit” for themselves, their businesses or families.
Florida has made news for it’s high rate of public corruption, and Constitutional Amendment 12 was an attempt to reign in graft. Like so many constitutional amendments, it depended on further action to implement it. Former state Senate President Don Gaetz, a Panhandle Republican (and father of U.S. Rep. Matt Gaetz), has shepherded the effort from the very beginning.
Gaetz drafted Amendment 12 partially in response to a damning 2010 statewide grand jury report that said Florida’s ethics standard for public officials wasn’t adequate to make effective prosecution for corruption cases like bribery or bid-rigging. For one thing, it required that prosecutors prove an official had “corrupt intent” – a very high bar and one that’s difficult to prove.
Gaetz has been watching closely since November as the Ethics Commission – whose eight members are appointed by state leaders – wrestled with the new ethics rule. On the question of a public official’s “intent,” the commission settled on the more enforceable “wrongful” intent to replace the old “corrupt intent” standard.
In setting its new state rule to implement the Constitutional Amendment 12, the commission faced opposition from developers, cities, counties, sheriffs and other governmental organizations, the Florida Phoenix previously reported.
That opposition resurfaced in last week’s hearing, with the various groups asking the commission to link the new rule to prior ethics rulings to give public officials and public employees some guidance on what would be allowed or disallowed under the new standard.
After several hours of testimony and debate, the commission backed the new rule unanimously.
Gaetz, who had previously described the Ethics Commission’s development of the rule as “a moment to go bold or go easy,” said he was pleased by the final version.
“I think the Ethics Commission was entirely faithful today to the Constitution and to the intent of the voters,” Gaetz told the Florida Phoenix after the vote. “And I believe the result will be that Florida, which has sometimes been accused of having some of the worst public ethics in the country, will now have the highest standard of public ethics in America. And now we have to live up to them.”
Ben Wilcox, a research director for the independent watchdog group Integrity Florida also approves of the new rule.
“Florida voters passed Amendment 12 because they wanted to set the ethical bar higher in Florida,” he said.
A critical choice for the Ethics Commission was whether to include a so-called “safe harbor” provision in the rule. Developers and government representatives had backed the idea – which would have absolved any public official of wrongdoing if they could prove they were following previously established ethics standards and exemptions.
Gaetz warned that such a provision would “gut” the intent of the constitutional amendment.
The development community also raised concerns about the new ethics rule’s impact on “special development districts,” which developers use to raise money to provide roads, drainage, utilities and other services in their developments. In most cases, the people backing the development also sit on the development district board, raising questions about special benefits. Existing state law has an conflict-of-interest exemption for the district board members when they are voting on issues that would benefit their land holdings.
Rebecca O’Hara of the Florida League of Cities also questioned the new rule’s impact on city officials. She cited the example of a city in the wake of a hurricane having to purchase supplies from the only open hardware store even though it’s owned by the mayor.
“What are you going to do?” O’Hara said. “The Legislature has recognized over the years that there have to be some exceptions to these situations.”
The Ethics Commission rejected the “safe harbor” provision.
Chris Anderson, the executive director for the commission, noted that the new rule has some leeway, saying officials may be found in violation of ethics rules if they are acting inconsistently “with the proper performance of his or her public duties.” He said officials acting under existing ethics rule exemptions, such as emergency purchases, are meeting that “proper performance” standard.
It will now be up to the 2020 Florida Legislature to establish penalties for anyone who violates the new ethics standard. The standard and the penalties will not take effect until Dec. 31, 2020.
Gaetz said the Ethics Commission’s vote for the new rule was an important step. “I think it’s a very good day for ethics reform in Florida,” he said.
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