Abstract
Ethics deals with the morals in the society or the differentiating between good and bad. Justice Potter, a former Supreme Court Justice said, “Ethics is knowing the difference between what you have the right to do and what is the right thing to do." According to the Florida law and statutory policies, the public office is regarded as a public trust and as such individuals have the right to secure and sustain the trust against any potential abuse. First, before delving into the history of the Florida ethics laws, it remains fundamentally critical to understand why changes were required. During the second half of the 20th century, there was an increased need for state government officials to conduct themselves appropriately when carrying out government operations. There needed a law that would reinforce the public officials' independence and impartiality within their official capacities and further to ensure that the public office was not used for public gains. Therefore, in a bid to satisfy the public interest, there was a need for laws that would hinder the emergence of any conflict of interest. Most fundamentally, the created laws would establish various standards to guide the conduct of both government employees and elected officials in scenarios where conflicts might arise.
Introduction
For many years, Florida has been a leader in exemplifying how states can leverage ethics standards meant for public officials to ensure that her people achieve their rights against abuse. In 1968, the Florida state constitution underwent several changes to ensure the establishment of a code of ethics for all state employees as a means of protecting conflict between public duty and private interests. The first successful constitutional endeavor led to the adoption of what came to be known as the "Sunshine Amendment" in 1976. As such, the change ensured that more ethical standards and consideration concerning government were added. The Sunshine Amendment provided an opportunity to create a Commission of Ethics to investigate any complaints implicating public officers and any other employee other than a judge on breaches of public trust. Another breakthrough in the history of ethics legislation in the state was the formation of the "Code of Ethics for Public Officers and Employees." The goal of the statute was to ensure the promotion of public interest and further guarantee that public officials conduct themselves impartially and independently from undue influence. Over the years, Florida has remained aware of the need to improve public welfare by creating laws and statutes that emphasize ethical practices among government officials.
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Public Records Law
The history of openness in Florida dates back to 1909 with the formation of a statute known as the Public Records Law embedded in chapter 119 of the state constitution. The law enhanced transparency by providing that any records either made or received by a public entity during official business would be subject for inspection unless stated otherwise by the Florida legislature. After the formation of the law, the definition of what entailed a public record evolve to cover not only the traditional written materials but also such as maps and papers but also photographs, films, tapes, and sound recording materials stored in computers. According to the law, “All state, county, and municipal records shall at all times be open for personal inspection of any citizen of Florida” (Gleason & Wilson, 1993). It further continues by providing that all the individuals’ in-charge of the records shall not deny the citizens the right to access. The laws further ensured that the office of the Attorney General remained the custodian of all the laws concerning the state’s openness policies.
At the time of its passage, the law applied to all the documents held by the council, the committees, members, and staff. All materials were regarded as public records unless provided otherwise by the Florida statute. Any person who was liable for the violation of the law would be charged with a misdemeanor punishable by imprisonment for a jail term of up to one year. Any other violation would be considered noncriminal leading to a fine that does not exceed $500. It also remains critical to note that several documents were not regarded as public records qualifying for the state disclosure. They included personal notes utilized in the preparation of the documentary records, personal e-mails, draft audits, and notes provided to an assistant or a secretary for dictation.
Of importance to note are the exemptions made to ensure protection and privacy of individual employees due to the nature of their work. All the exceptions were outlined in the Florida Statutes. Some of the notable exclusions included medical records, collective bargaining materials, certain trade secrets, and criminal investigation information. Other documents such as the internal audit reports and whistleblower complaints were also subject to exemption. For a citizen to be considered in accessing the records, they must first show a particular interest. The disclosure will only be certified upon full identification of their name. Lastly, the documents can only be destroyed after the approval by the state agency known as the Division of Library and Information Services.
Florida's Government-In-The-Sunshine Law Was Enacted In 1967
The “Sunshine Law” came after almost a decade of unsuccessful attempts to make the law. The primary aim of the law was to ensure that all the government processes and decision-making endeavors remained open to the general public. The bill was introduced by J. Emory Cross in 1967 to the Florida legislature. The passage of the law also meant that the citizens had the right to attend government meetings. The first attempt to pass the law came in 1957 with the bill moving to be debated for almost ten years before its ultimate passage. The law stated that "all meetings of any board or commission of any state agency or authority …are declared to be public meetings open to the public at all times" (Gleason & Wilson, 1993). Most fundamentally, all meetings involving the state government bodies shall be recorded and availed to the public for access and scrutiny. As such, any government entity that conducts its meeting with any considerations of these provisions is liable to a fine that does not exceed $500 and an imprisonment term of not more than six months. In some instances, both the penalties and jail term can apply.
The passage of the statute meant that both the public and the press had an opportunity and a right to scrutinize and access government meetings. Immediately after the incorporation of the law, Florida gained a reputation as a leader in levering ethics through open governance. “Florida’s Sunshine Law quickly gained a national reputation as being one of the strongest and most effective open meetings laws, prompting other states to pattern their laws after the Florida law” (Florida Commission on Ethics, 2018).
Many other states adopted the laws citing Florida as their inspiration. Furthermore, Florida gained scholarly attention as it acted as a case study illustrating the various approaches that states can use to leverage open governance by including public participation in their meetings. It also remains critical to appreciate the fact that Florida's Sunshine Law also significantly influenced the federal government. In response, under President Gerald Ford, the Government in the Sunshine Act came to effect in 1976 (Kraemer, 1980). Most critical to note is that the law was introduced by a Florida-based senator known as Lawton Chiles in showing how Florida was determined to demystify its ethical consideration to the rest of the country. Throughout the state’s endeavor to create an open governance system that involved the public, the courts played a vital role by supporting the legislation that went on to see citizens playing a crucial role in open-governance. Most importantly, the office of the state's Attorney General acted as a custodian to ensure that the laws came to effect in the way they were passed.
Florida Commission on Ethics
The Florida Commission on Ethics was formed in 1974 as an independent agency with the primary aim to "serve as guardian of the standards of conduct" for officers and employees working for the state and local governments (Gleason & Wilson, 1993). The role of the commission includes reviewing all the complaints made by the public against public officers and employees in any endeavor that violates the code of ethics of the state. Other functions of the commission include providing advisory opinions and preventing potential conflict of interests. Upon formation, the commission was required to follow three major processes in its handling of ethical cases. Cooper, (2009) noted that the first stage is known as the preliminary investigation stage where the job of the commission is to evaluate whether the allegations made in the complaint are legally tenable or sufficient. If the case is found to lack the perquisites to make it legally sufficient, it is dismissed with immediate effect without any further investigation. The next step is known as the investigatory phase which aims at finding the probable cause to certify that a violation in the ethics laws has occurred. The case is dismissed upon finding that the case lacks a probable cause. The third step will involve a public hearing where evidence is presented and ruling made thereafter.
Sunshine Amendment 1976
The "Sunshine Laws" first came to existence on November 2, 1976, after they were approved. The approval led to the creation of the Article II, Section 8 of the Florida Constitution which required that state and county elected officials to disclose campaign finances and financial interests. It also established the position of an independent commission also known as the Commission on Ethics to investigate any case involving the public officers who breached public trust. However, it remains fundamentally clear to note that the law exempted judges. The "Sunshine Laws" also known as the Florida Amendment 1 Law came as a result of voting with a whopping 1,765,626 individuals approving it thus representing 79.26% of the total voters who participated in the elections. The section of the constitution amended provided that "A public office is a public trust. The people shall have the right to secure and sustain that trust against abuse" (Florida Commission on Ethics, 2018).It, therefore, ensured that all elected constitutional leaders and candidates were required to file a full disclosure of all their financial interests including the campaign finances.
Any employee or public officer who engaged in any breach of public trust for individual gain will be liable to the state for all the monetary benefits accrued from such dealings. The law is also required to provide the method used for recovery including any additional damages. The amendment also asserted that any public officer charged and convicted of a felony that involves a breach of public trust will be required to forfeit any rights or privileges provided under a pension scheme as documented by the law. Most significantly, the law provided for the formation of an independent commission of inquiry not only to conduct investigations but also making reports on cases involving the breach of public trust. The inspiration behind the creation of the Sunshine Amendment was aimed at achieving "a transparent government with accessible, affordable public records important in maintaining a free and fair democracy" (Florida Commission on Ethics, 2018). The amendment was solicited mainly for by the Common Cause volunteers who collected signatures to petition what would become the first ever successful petition that Florida had under the leadership of Governor Reuben Askew. The law was finally incorporated into Florida's constitution mandating all public officials to carry out financial disclosure and also led to the formation of the Florida Commission on Ethics.
Whistleblower Act of 1986
The Florida legislature enacted the Whistleblower Act of 1986. The main of aim of the law was to protect government contractors and employees "from adverse personnel actions in retaliation for disclosing information in a sworn complaint alleging certain types of improper activities" (Katz, LaVan, & Lopez, 2012). The legislature has continued with many amendments since its inception to ensure that organizations are better positioned to address their ethical problems without fear of contradiction. Although the Act is found in the state Constitution, the commission lacks the jurisdiction to proceed against individuals in violation of the Act. Therefore, individuals who might have revealed unethical information and suffered adversities thereafter are advised to consider help from several offices including that of the Inspector General and Department of Legal Affairs. It remains important to note that companies willing to enjoy this provision must employ up to 10 or more workers.
Code of Ethics for Public Officers and Employees Florida
The code of Ethics for Public Officers and Employees or simply the ethics laws are some of the latest provisions included in the Florida state constitution. The laws were approved in 2011. They are primarily classified into two, including those prohibiting certain conduct or actions and others providing for particular disclosures to be made public. Under the prohibited actions, the first law addresses the solicitation and acceptance of gifts. Public officers, government employees, and candidates are warned against receiving any material value in the form of gifts, rewards, loans, or favors. These individuals are also prohibited against taking any compensation aimed at influencing their decision in an official action such as voting. Employees and officials in the public sectors are further warned against using corruptly using their positions to obtain special privileges and other benefits. Public officers including government attorneys must refrain from using their position to unduly acquire information for their personal gain. In further acting ethically and ensure that there is no conflict of interest, public officers are not required to hold any employment or contractual obligation with a business entity that trades with the agency in which they lead.
The anti-nepotism law denies public officials an opportunity to provide employment, appointment, promotion, and any advancement to their relatives. In prohibiting conflict of interest during voting, "State public officers are prohibited from voting in an official capacity on any measure which they know would inure to their own special private gain or loss" (Thiele & Nieman, n.d.) Furthermore, public officers are required to disclose any conflicts of interest as a way of putting the public interests above that of an individual. Attorneys are also regarded as public servants of the state. As such, they are required to strictly adhere to several ethical considerations to ensure that they serve the public with the utmost dignity and respect. For instance, under the Code of Ethics for Public Officers and Employees, the attorneys are required to mention any cases of conflict of interest. An attorney is not necessary to represent a relative or any other individual with whom they are related to. However, judges are the only legal workers that are exempted from the ethical provisions. The nature of their job comes with some level of sensitivity thereby making them immune from any significant control.
The Code of Ethics Amendment 2014
First, it remains critical to note that the “Code of Ethics” for Florida public officers is enshrined under Chapter 112, Part III, of the Florida Statutes. The main elements contained in the section of the constitution include various standards of conduct and disclosures for multiple groups of people including public officers, candidates, employees, and lobbyists among other professionals in the state and local governments. However, as previously stated, judges are exempted from these provisions due to the nature of their work. The Amendment of the Code of Ethics occurred during the 2014 Legislative Session. The amendments in Chapter 112 aimed at initiating a set of changes including providing the Commission on Ethics with the power and authority to investigate cases of ethics violation following a written referral from the governor. Furthermore, the law requires all municipal and constitutional officers to complete four hours of ethics training and public records law annually. Dual public employment of public officials will remain prohibited unless under certain circumstances.
The amendment has also ensured that the commission on ethics has received more powers "to collect unpaid fines, including wage garnishing, utilizing a collection agency, or other collection methods authorized by the law." Political committees will not be allowed to give gifts, and elected officials, on the other hand, will have to fill various online financial disclosure forms. Additionally, if an individual holding a public office refuses to fail to file a public disclosure relating to their financial interests and goes on to accrue the maximum fines, the Commission on Ethics has the mandate to carry out an investigation that can eventually lead up to a public hearing. If the Commission determines that an individual acted unethically, for instance failing to file a financial statement willfully, it will recommend that the public officer is removed from office.
The 2018 Florida Statutes
The laws require that public officials carry themselves with appropriate conduct with a sense of independence and impartiality. In emphasizing public interest, the law has remained keen to prevent any cases of public interest for all public officials, elected persons, and government employees. The recent laws have also emphasized on recruiting citizens with the required merit to serve in the public arena. Therefore, the law of conflict of interest has been created as a way of avoiding any cases of unreasonable and unnecessary recruitment. Also, public officials should not be denied any opportunity to serve regardless of the social, economic, and political standing. The statute also provides the general public a chance to address their grievances and deliver opinions to government officials and entities pending any executive or legislative actions (The 2018 Florida Statutes, 2018). In emphasizing the provisions of other laws, the statute reminds all the public officials that their primary role is to benefit the public. As a result, all government employees and elected officials must put the public interest above any individual goals.
Conclusion
In conclusion, Florida has in the past several decades leveraged its laws to improve the ethical standings of government officials. The Sunshine Laws, Sunshine Amendments, public records law, Code of Ethics, and whistleblower laws are among the examples of the significant legal strides that the state has made to ensure that it satisfies the needs of the public. The laws were primarily prohibitive in a move that was aimed at providing that all public officials refrained from any activity aimed at a personal benefit. All government employees, attorneys, and elected officials have all been covered by the statutes due to the critical role they play in public interest. The laws have also increased public participation in government business through the public records law. Citizens have had the opportunity to scrutinize the state government and ensure that transparency remains a significant consideration. As such, Florida has remained an important case study that has influenced not only other states but also the federal government in matters of ethical standards and open governance.
References
Cooper, C. (2009). Sending the Wrong Message: Technology, Sunshine Law, and the Public Record in Florida. Stetson L. Rev., 39, 411.
Florida Commission on Ethics (2018): GUIDE to the SUNSHINE AMENDMENT and CODE of ETHICS for Public Officers and Employees http://www.ethics.state.fl.us/Documents/Publications/GuideBookletInternet.pdf
Gleason, P. A., & Wilson, J. (1993). The Florida Constitution's Open Government Amendments: Article I, Section 24 and Article III, Section 4 (e)--Let the Sunshine In. Nova L. Rev., 18, 973.
Katz, M., LaVan, H., & Lopez, Y. P. (2012). Whistleblowing in organizations: implications from litigation. SAM Advanced Management Journal, 77(3), 4.
Kraemer, M. K. (1980). Exemptions to the Sunshine Law and the Public Records Law: Have They Impaired Open Government in Florida. Fla. St. UL Rev., 8, 265.
The 2018 Florida Statutes, (2018). Online Sunshine. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0100-0199/0112/Sections/0112.311.html
Thiele H. & Nieman D. (n.d.) “Ethics, Conflict of Interest, and abuse of Office” https://factor.fl-counties.com/themes/bootstrap_subtheme/sitefinity/documents/ethics-chapter.pdf
Waldron, J. (2017). Is the rule of law an essentially contested concept (in Florida)? In The Rule of Law and the Separation of Powers (pp. 117-144). Routledge.
