(Pembroke Pines Commissioner Angelo Castillo served on the county’s charter commission, which considered ethics laws for the county government nine years ago. Here Castillo discusses what type of ethics regulations are needed and why some of the laws being discussed go too far.)
BY ANGELO CASTILLO
I had the honor of serving on the Broward County Charter Review Commission from 2000 – 2002.
I will always be thankful to my good friend Commissioner Diana Wasserman Rubin for that appointment. It came at a point in my life when I was ready for this substantive and exciting assignment in public policy.
This was a particularly active Charter Commission with very capable people. Dan Lewis served ably as chair of that commission. In the end, we nearly re-wrote the entire County Charter, proposing a whopping 13 Amendments, all of them adopted by the voters, almost all overwhelmingly.
Our work was a huge success.
I took an interest in all our discussions, but focused my efforts primarily on four items: Converting the position of Commission Chair to Mayor (that’s as good as we were going to get), creating an independent Office of Commission Auditor, creating a Whistleblower Protection provision, and last, strengthening our county ethics rules.
The first three were accomplished. The debate over strengthening ethics rules is still underway.
During our discussions years ago, I recommended the use of a phrase well understood in federal ethics regulations. The phrase is ”avoid even the appearance of impropriety.” I believe that should become the standard by which county officials would conduct themselves when facing actual or potential cases of conflicts of interest.
Combating conflicts of interest — that was the only context in which this language was proposed.
The following is based on my best recollection of those discussions.
Basically, in promulgating the new ethics language, what we meant was if you, as a public official, face any situation in which your official involvement would even appear to suggest that your office is being used for personal gain, then your duty is to avoid that situation. This was done to expand the “actual conflicts” prohibition to include appearances of conflict as well. The purpose was to significantly bolster public trust in county government.
After the voters adopted this language, six years went by. The county didn’t do all it might have to confront that requirement and codify their determinations as rules governing official conduct.
There was an obligation to create an Ethics Commission to complete this charter-mandated task. It was predictable that this would occur and that the voters would support that measure.
The resulting Board has been created and is in the process of tackling that duty. They are mindful of higher ethics laws at the State and Federal levels, as well as criminal statutes that have all have a bearing on what official conduct is permissible.
But here’s a list of ethical activities that nobody on the 2000-2002 Charter Commission ever suggested to exclude.
Nobody ever said that elected officials shouldn’t help charities. Indeed, we’ve strayed far from the core of ethics when officials are made to wonder whether they can help charities.
The purpose of ethics is to guide us toward good behavior and away from bad behavior. Yet because concern has been expressed about this issue, an ethics rule may be in order to make plain what behavior is allowed and what is not.
Nobody ever suggested that public officials be prohibited from helping able candidates for office to get elected. This is a First Amendment right that everyone has, including public officials. Ethics should rarely intrude on established rights. Rules might help make that ethical behavior more clearly understood.
Nobody suggested that public officials should be hermits. Ethics rules shouldn’t prevent a public official from going to someone’s house for dinner, or having a cup of coffee with a constituent or business leader. A public official shouldn’t walk the earth in constant fear of persecution.
Simply, we meant don’t use your office for personal gain. If you confront a situation that doesn’t involve personal gain but fails to pass the sniff test, then avoid that situation also.
Secondly, that rules be made to resolve issues and placed in a code of official conduct. It’s amazing how many people seem to have forgotten the context in which those important discussions actually occurred.
Let me offer you a few examples of areas where the Ethics Commission should be focusing their attention.
County Commissioners serve on selection negotiation committees that recommend vendors for county contracts. This is a long standing practice in county procurement.
Nobody elects a county commissioner based on their procurement prowess, yet the involvement of commissioners on procurement boards is not unusual in government practice. Notwithstanding, an appearance of impropriety is created because many of those vendors, seeking county contracts, and the persons that represent them, make campaign contributions to the very commissioners on those committees.
Now, if the County wants to continue having it’s commissioners on selection negotiations committees and yet comply with the charter provision, it must create ethics rules that say this activity is allowed and govern it to the extent necessary. Ethics rules never eliminate an ethical dilemma, ethics rules resolves them.
For example, if an ethics rule says that a particular activity is permitted, then it generally cannot be said to be an ethics violation. Rules may impose certain requirements, such as disclosure or recusal, or if it is deemed to serve a higher best interest, none at all. Those are rulemaking concerns.
However, prohibitions on activities are generally rare in ethics rules, and typically result only when a conclusion is made that the activity presents irreconcilable differences with advancing the public good. This is how proper ethics rules are generally crafted.
Similarly, there’s been some discussion about employment issues affecting county elected officials.
County commissioners are assumed to work part-time in our system of government although some choose to serve full-time. The law allows them to have outside employment and the expectation is that most will. As such, there will be occasional voting conflicts.
The last Charter Board supported the current charter requirement; that commissioners with voting conflicts absent themselves from any discussion on that subject.
This is a strong form of recusal that resolves but can’t eliminate an ethical dilemma. But the rule did not go so far as to say that certain professions were to be prohibited if you want to serve as a county official. There the employment rights and needs of citizens aspiring to office will need to be balanced against the rights of the public to have honest government.
However the point is simple. Ethics rules are supposed to steer us toward more, better behavior and also toward less, bad behavior. We must do that with a level headed sense of perspective. It is in the advancement of that effort that the public trust is bolstered.
Ethics is supposed to be a good thing, not an oppressive thing.
Angelo Castillo is a City Commissioner in Pembroke Pines, a former Broward Charter Review Board member, and a former adjunct professor of business ethics at St. Thomas University