By Howard Troxler, Times Columnist
Published Monday, December 14, 2009
Although we have an outfit called the "Florida Commission on Ethics," supposedly our state's public watchdog, it has limitations:
• It can't open its own investigations, no matter how well-known or egregious the misconduct. It has to wait for a citizen to file a complaint.
• It has no power to punish. It can only recommend a punishment to other branches of government, such as the governor or Legislature.
• Contrary to its title, it does not decide for itself what is "ethical" at all, but merely what is legal under Florida law — as written, of course, by the Legislature.
More than once, I've had the sarcastic thought that the way to "improve" the Florida Commission on Ethics would be to abolish it.
We often read too much significance into the commission's process. It can be Big News, for example, when an "ethics complaint" is filed, when in reality any John Doe could have filed it based on a news headline.
At the other end of the pipeline, many a public official has triumphantly pronounced himself or herself "cleared" or "exonerated" by the commission because of the way the law is written, despite obviously questionable conduct.
As my colleague Steve Bousquet reported the other day, the Ethics Commission is again asking the Legislature to increase its authority, including the power to start its own cases.
Under this proposal, such "self-starting" investigations would have to be approved by a super-majority vote, six of the nine members, and based on "reliable and publicly disseminated information."
(Think Ray Sansom, the indicted past speaker of the state House, for one.)
Until now, the Legislature has refused to give the Ethics Commission this kind of self-starting power for fear of creating a monster answerable to no one. But these seem like acceptable protections.
Besides, it's not like the system we have now is any great shakes. The requirement that a citizen file a complaint might sound noble, but it usually comes down to somebody who got mad at something in the news — if not somebody with a personal ax to grind.
The commission further is proposing a maximum fine for misconduct of $100,000, instead of $10,000. I'd make it $100,000 or a percentage of the dollars at stake in the alleged unethical misconduct, whichever is higher.
The commission also proposes a lower standard of proof in ethics cases, changing from "clear and convincing" evidence to the mere "preponderance" of the evidence. Here I'd stick with the status quo. Nothing wrong with requiring "clear and convincing" evidence before putting a permanent black mark on somebody's record.
As the article points out, in the past year we've seen the indictments of a former House speaker, a Broward County commissioner and School Board member and a prominent Hollywood lobbyist, and a wide-ranging criminal inquiry into a major Broward County fundraiser that has seen federal agents questioning senators.
Meanwhile, Gov. Charlie Crist even asked the Supreme Court to launch a grand jury investigation into corruption.
In short, the ethics-violating business is booming, and the wrong side seems to be winning. The Legislature should allow the Florida Commission on Ethics to be able to open its own cases by an extraordinary vote in clearly worthwhile cases.
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