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03-16-2005 Orientation CITY OF AVENTURA I Commission Orientation Briefing I , CITY COMMISSION. March 2005 Mayor Susan Gottlieb Commissioner Zev Auerbach Commissioner Bob Diamond Commissioner Harry Holzberg Commissioner Billy Joel Commissioner Michael Stern Commissioner Luz Urbaez Weinberg CITY MANAGER Eric M. Soroka, ICMA-CM DEPARTMENT DIRECTORS Weiss Serota Helfman Pastoriza Guedes Cole & Boniske. P .A., City Attorney Harry M. Kilgore. Finance Support Services Robert M. Shennan, Community Services Teresa M. Soroka, City Clerk, CMC Thomas Ribel, Police Chief Joanne Carr, Planning Director Mariano Fernandez, Building Director/Official Dr. Katherine Bray Murphy, Charter School Principal Table of Contents Brief Description of City 1 A. Incorporation Accomplishments 2 Government Structure 3 Policy Formation! Legislative Actions 7 Role of Mayor/Commissioners A. Duties of Mayor/Commissioners 9 B. Commission Meeting Procedures 10 C. Quasi-Judicial Proceeding/Cone of Silence/Conduct 11 D. Citizen Concerns 13 E. Relationship of Mayor/Commission to Manager 14 F Relationship of Mayor/Commission to Attorney and Clerk 15 G. Sunshine LawIPublic Records 16 H.Mail 22 Information Flow/Types of Reports 23 Charter School Governance Structure 24 Understanding the Budget 25 A. Preparation Process 25 B. Capital Improvement Program 27 C. Tax Information 30 2004/05 Capital Projects Update 31 Issues 32 Brief Description of City On November 7, 1995, the residents overwhelmingly voted to approve the City's Charter and Aventura officially incorporated as Miami Dade County's twenty-eighth municipality. Creating this new City afforded residents the opportunity to improve the quality of government services they receive and control its own destiny. In March of 1996 the first Mayor and City Commissioners were sworn in. The City Manager was appointed in June of 1996. Aventura is governed by a commission-manager form of government, combining the political leadership of its elected officials with the executive experience of its City Manager. The City government structure created for A ventura is not business as usual. It is very different from most structures. It emulates the private sector by privatizing services and emphasizing customer service. The framework that was established is based on the following principles: . Prompt response to citizen requests. . One stop service for permits and business licenses. . Commitment to the public involvement. . Utilization of "Electronic Government" to provide service and information. . Commitment to hiring only the most qualified and highly motivated employees. . Limiting the number of employees by privatizing or contracting with the private sector for many servIces. . A professional, businesslike manner at all times. . An emphasis on quality not quantity. . Promote and support a high quality of life for our citizens, businesses and visitors. . A safe and secure environment to live and work. . Establishing a small number of operating departments that work closely with the community. . Low taxes. The City Commission is committed to providing quality municipal services at the lowest possible cost. The City's operating departments include the Office of the City Manager, City Clerk's Office, Legal, Community Development, Community Services, Finance Support Services, Charter School and Public Safety. . The City provides a full range of municipal services from code compliance to street repairs. . 3.2 square miles bordered on north by Miami-Dade/Broward County line, on south at approximately NE 177 Street, to west by center of FEC Railway, to east by Intracoastal Waterway. . 17,000 residents in 1996,28,267 residents in 2004 estimate. . Prior to Incorporation the area was known as an enclave for retirees and for its Mall. . Mostly Condominium and hi-rise with little single family development New Commissioner Orientation Briefing - 1 - Incorporation Accomplishments . Highly Visible Police Department, Low Crime Rate - 77 Sworn Officers . Strong and Growing Economic Base . Lowest Tax Rate - No Increase for the Past 9 Budgets . New Parks and Recreational Opportunities for All Age Groups . Citywide Shuttle Bus Service - Ridership Continues to Expand . Road and Safety Improvements - Traffic Lights, Sidewalks . New Land Development Regulations - Control Over Zoning . Citywide Beautification Program- Bus Shelters & Benches . High Landscape and Roadway Maintenance Standards . Reduced Costs to Citizens - City's Assumption of roads, landscaping and bus service. . Charter Elementary School . Community Recreation Center Community Imorovements . Beautification\Roads . Parks . Drainage o Safety $6,432, . Facilites $12,030,000 $15,331,000 New Commissioner Orientation Briefing -2- Government Structure The City Manager form of government is based on the premise that the responsibility for policy rests with the City Commission and the responsibility for daily administration and execution of policy rests with the City Manager. In order for this form of government to be effective, a team- like atmosphere between the City Commission and administration must be developed. The CommissionlManager structure is similar to a private corporation as it emphasizes that the government operates as a business. The structure of A ventura's government reflects this concept. A comparison is shown as follows: Establish Policv Public Sector Private Sector City of Aventura ABC Corporation Residents Stockholders City Commission Board of Directors Administration & Imolementation City Manager Chief Executive Officer Department Directors Department Heads Mavor/Citv Commission The City Commission is the governing body of the City and is comprised of seven members including the Mayor selected by the residents. Each member serves a term of four years and receives a salary of$7,500/year plus $4,200 for expenses. The Mayor receives $lO,OOO/year plus $4,200 for expenses. The City Commission is responsible for adopting policies of the City, considering and adopting Ordinances and Resolutions and approving the Annual Operations Budget and Capital Improvement Program. In addition, the City Commission approves all formal bids, plats, special exceptions, land use amendments and variances to the Land Development Regulations. The Mayor presides at all commission meetings and acts as head of the City govemment for ceremonial purposes such as the execution of official proclamations and City Ordinances and Resolutions and acts as the City official designated to represent the City in all dealings with other governmental entities. The Mayor shall annually present a state of the City address. The Mayor is voting member of the City Commission and has no administrative responsibilities. The Mayor issues proclamations and keys on behalf of the City. The Mayor presides over the annual Arbor Day and Veteran's Day events. New Commissioner Orientation Briefing -3- The Vice Mayor acts as Mayor during the Mayor's absence or disability. The City Commission meets the first Tuesday of each month. In addition, the Commission meets once a month in workshops to discuss issues of concern to the Commission. In order to uphold the integrity of the CommissioniManager form of government, the Charter specifically prohibits the Mayor and members of the Commission from becoming directly involved in the administrative affairs of the City. Section 4.02 Prohibitions of the City Charter states the following: Section 4.02. Prohibitions. (a) AppointmentfsJ and renwvals. Neither the Commission nor any of its members shall in any manner dictate the appointment or removal of any City administrative officers or employees whom the Manager or any of his/her subordinates is empowered to appoint, but the Commission may express its views and fully and freely discuss with the Manager anything pertaining to appointment and removal of such officers and employees. (b) Intetference with administration. Except for the purpose of inquiries and investigations made in good faith, the Commission or its members shall deal with City officers and employees who are subject to the direction and supervision of the Manager solely through the Manager, and neither the Commission nor its members shall give orders to any such officer or employee, either publicly or privately. It is the express intent of this Charter that recommendations for improvement in City government operations by individual Commissioners be made solely to and through the Manager. Commissioners may discuss with the Manager any matter of City business; however, no individual Commissioners shall give orders to the Manager. Charter School Management Agreement 6.7 Charter School DeDartment. It is the intent of the CITY to establish a Charter School Department which shall be responsible to the City Manager. CSUSA shall be accountable to the City Manager. Neither the City Commission nor its members shall give orders to CSUSA, its employees or employees of the City Charter School Department, either publicly or privately. Recommendations for improvements III Charter School operations by Commissioners shall be made solely to and through the City Manager. CITY MANAGER The City Manager is appointed by the Commission for an indefinite term and acts as the Chief Administrative Officer of the City's governmental organization. The City Charter lists the duties and responsibilities of the City Manager. The Manager directs the functions of the City operations through several major departments and provides recommendations to the City Commission on policy issues. He is empowered to hire and remove all city employees except City Clerk and City Attorney. Other important functions include the preparation of the Annual Budget, Capital Improvement Program, implementation of Commission Policy, manager the City's New Commissioner Orientation Briefing - 4- Charter School operations, oversee purchasing activities and responding to citizen complaints or questions. As the City's Chief Executive, the manager is responsible for the ongoing daily activities ofthe City. The City Manager is subject to a professional code of ethics from the ICMA professional association. This code is posted in the City Manager's Office. New Commissioner Orientation Briefing -5- Organization Chart OlY a= AVENnJRA Ielidens City MlllIQElI' l...egaI Seruces Pdriri Mn.Jtes EWJel al Seruce Raa:rds ~al Captal 'eds aerical &w:rt BedialS Plt1Iic SaI'ety Qmnrity UK Finance'~ ;;" Qmnrity De,:la. b ''''' II. DlNeI..,..,,,,, It Services Services ~bl""t 11% ~bl",,1t Deparb,,,,,1l ;\k0ih8P0ifit'''''''''t;2:0S0i&;;W~1;Mh;012 ~ice Acrrirg Rrmce/Panntirg Camuity Fa::ilities PalroI Zairg A.rrl1asirg Pa1<sI8ea.iIificalial Camuity~atialS BJldrg lnsp:lCtialS RlskllAlr age lEi t R:WM:da1I\113inl. Oininal il1l.€StigatialS Ccx:le 81fcl cell a t Ir{c",a~al~,..t A.tlIic IJIb1<s Traffic 8 Ifclcel IEl1 8:x:l mic D:M:lIq:rrert R:rsareI Iv'ass T rmsit 8 I EI !;leu:." A ep:l edlless 0::a..pati01al Urerses Spedal EI.e1ls ~eatim'rutLral Olarter School De,:la. b 11eI1l BerTErtaY&:fffi .. New Commissioner Orientation Briefing -6- POLICY FORMATION 1. Individual Commission members propose legislation, government program or policy. 2. Discuss proposal with City Manager to determine initial pros and cons and financial implications. 3. Place on Workshop Agenda or City Commission Agenda as "Discussion item" to obtain approval of the concept by a majority of the Commission. 4. Legislation is prepared by City Administration and/or City Attorney for presentation at Commission Meeting. LEGISLATIVE ACTIONS I. ORDINANCES An Ordinance is a law enacted by the City Commission, prescribing a general and lasting rule for persons or things within the City boundaries. It is the most authoritative act of which the Commission is responsible for and is usually reserved for cases involving long term policy. Some examples are the Land Development Regulations, Budget, adoption of revenue sources and regulation of businesses. Adoption of Ordinance 1. Presentation to City Commission 2. First Reading at Commission Meeting 3. Second Reading at next meeting requires a Public Hearing to obtain citizen input and publication in a newspaper of general circulation. 4. Upon passage and execution by the Mayor, the Ordinance, unless a budgetary matter, is codified and placed in the Code of Ordinances. 5. Implementation by the City Administration. II. RESOLUTIONS Resolutions are commonly used for administrative items such as authorizing the City Manager to execute contracts and agreements, authorizing budget amendments, expressing public positions, approving plats and zoning matters. III. MOTIONS Motions are used to direct the Administration to take certain action or review and report. New Commissioner Orientation Briefing - 7- IV. DISCUSSION ITEMS Discussion items are placed on the Agenda by a Commissioner to discuss an issue with the entire City Commission for further action. New Commissioner Orientation Briefing -8- Role of Commissioners A. DUTIES OF COMMISSIONERS An individual assumes many duties and responsibilities upon becoming an elected official. The City Commission collectivelv is responsible for establishing policy, adopting the City's Budget and providing direction to the City Administration. Commissioners provide public leadership, represent the City at various events and communicates with constituents about various ideas. The following outline is a brief description of the various duties and role of a Commissioner. The description is not meant to be exhaustive; rather, an effort has been made to summarize the primary responsibilities of a Commissioner. I. Establish Policy A. Approves the Operating and Capital Improvement Program Budgets upon presentation by the City Manager. B. Approves the City's Comprehensive Plan. C. Approves Land Use Plan, Land Development Regulations, Zoning and/or Land Use revisions. D. Approves the awarding of contracts in excess of $15,000 based on formal bid process and City Ordinance. E. Approves contracts and/or Agreements F. Makes appointments to the various Boards of the City. G. Approves ordinance establishing laws and policies. II. Direction to Administration A. Hires City Manager, City Clerk and City Attorney. B. Provides direction to City Manager, City Clerk and City Attorney. C. Reports complaints and/or requests for information to the City Manager and follow-up if necessary. III. Provide Public Leadership A. Decision making B. Study problems C. Reviews alternatives and recommendations D. Decides on best course of action E. Attends various city functions IV. Represents City A. Florida League of Cities & Miami-Dade County League of Cities New Commissioner Orientation Briefing -9- .~-- ---- - - _._ .u___ B. COMMISSION MEETING PROCEDURES Important Meeting Agenda Information 1. Any member of the City Commission or the City Manager may place items on the Agenda. The Agenda closes at noon one week prior to the meeting. All items on the Agenda shall contain back-up information in the form of a memorandum in order to outline what kind of action is proposed. 2. The Commission Meeting Agenda Package is available to the City Commission at the Government Center by end of business the Friday before the meeting. 3. The members of the City Commission should attempt to resolve any questions they may have about Agenda items with the City Manager prior to the meeting in order to obtain the necessary information for their decision-making process and maintain a smooth meeting. All requests for information relating to items that appear on the Agenda should be directed to the City Manager. 4. Those items that do not require a public hearing or are administrative in nature (i.e., contracts, Resolutions) are normally placed on the Consent Agenda, which is voted on as one item. Any member of the Commission may remove an item from the Consent Agenda in order to discuss and vote on it as a separate issue. Requests for removal should be directed to the Mayor at the beginning of consideration of the Consent agenda. The City's Comprehensive Council Meeting and Agenda Procedures were adopted by Resolution No. 96-18 and amended by Resolution 2000-36 and Resolution 2001-26 included as Appendix A. New Commissioner Orientation Briefing - 10- c. QUASI-JUDICIAL PROCEEDINGS. CONE OF SILENCE AND STANDARDS OF CONDUCT 1. Quasi-Judicial Proceedings As to any specific issue which is the subject of a pending quasi-judicial matter for which an application has been filed with, outside of the public hearing Commissioners are prohibited from discussing the merits of the specific issue for which approval is sought by the pending application with any person other than the City staff. The term "specific issue", as used in this paragraph, refers to the specific variance, conditional use, rezoning, site plan, plat approval or like item for which approval is sought, rather than referring to the general matter, as opposed to the merits, of the proposed project or development itself. Notwithstanding the prohibitions of this paragraph shall not apply to applicant conferences with the City Manager which are attended by individual Commissioners (no more than one Commissioner at each conference) provided that the City Manager first finds and certifies in writing that the application concerns a project of significant impact, and schedules such conferences. (Appendix B.) 2. Bid Cone of Silence A Cone of Silence shall be imposed upon each RFP, RFQ and bid after the advertisement of said RFP, RFQ or bid. At the time of imposition of the Cone of Silence, the City Manager or his or her designee shall provide for public notice of the Cone of Silence by posting a notice at the City Hall. The City Manager shall issue a written notice thereof to the affected departments, file a copy of such notice with the City Clerk, with a copy thereof to each City Commissioner, and shall include in any public solicitation for goods or services a statement disclosing the requirements of this section. The Cone of Silence shall terminate at the beginning of the City Commission meeting at which the City Manager makes his or her written recommendation to the City Commission. However, if the City Commission refers the Manager's recommendation back to the Manager or staff for further review, the Cone of Silence shall be reimposed until such time as the Manager makes a subsequent written recommendation. (Appendix C) 3. Standards of Conduct That the Mayor and City Commissioners shall abide by the following additional standards of conduct: Standards of Conduct Concerning Contact with Representatives of other Governmental Entities and for Public Presentations: (a) The Mayor is recognized as the City official designated to represent the City in all dealings with other governmental entities. (b) No Commissioner shall represent the City in dealings with other governmental entities, unless authorized by the Mayor pursuant to authorization granted at a City Commission meeting. This shall not prohibit members of the Commission from expressing their private and New Commissioner Orientation Briefing -11- personal opinion to representatives of other governmental entities on matters concerning the City, so long as any such opinion is clearly expressed as an individual one and not as being made on behalf of the City or City Commission. (c) The Mayor and Commissioners, in making presentations to the public shall advise of the official position of the City Commission upon matters which have come before the Commission. If no official position has been taken by the Commission on the matter, the Mayor or Commissioner shall state that they are expressing only their personal opinion and not the position of the City or the City Commission. (d)(l) The Mayor or any Commissioner who is invited to make a presentation before or to engage in any discussion at a regular or special meeting of the members of a Resident Association or of the Board of Directors of a Resident Association concerning matters of City business or who otherwise plans to attend such meeting for such purpose, shall first request the City Manager or his designee to accompany him or her in appearing at such meeting. This is intended to enable the City to address or subsequently respond to any questions raised by persons or to be able to explain the position of the City on the matter. In the event that the City Manager or his designee is not available at the time or date requested for the appearance before the Resident Association, the Mayor or Commissioner shall advise the Resident Association that the appearance should be rescheduled. The Mayor or Commissioner shall not attend the Resident Association meeting if the City Manager or his designee is not available. This provision shall not apply to the attendance by the Mayor or any Commissioner at meetings of Resident Associations of which the Mayor or Commissioner is a member and the Mayor or Commissioner is not attending for the purpose of making a presentation upon or discussing matters of City business. (2) The term "Resident Association," as used herein, means: (i) homeowners association, cooperative owners association, condominium association, master association, and also includes: (ii) umbrella associations, joint councils and coalitions of which the associations listed in (2)(i) above are members. (3) The term "Board of Directors," as used herein, means the governing board of the Resident Association. New Commissioner Orientation Briefing -12 - D. CITIZEN CONCERNS The City Manager's office has implemented a Customer Service System, demonstrating the City's focus on providing efficient service to its residents. An advanced computer system tracks and records all service requests, while establishing a single point of contact for residents. Residents may also utilize the City's Web page to report complaints and observe progress on same. The system ensures residents receive a response expeditiously and aids in simplifying the maintenance of records. The system is also used to evaluate City services and provide a feedback mechanism for both the general public and City employees. All employees who interact with the public are provided specialized customer service training. In order to provide the best possible services to the community, the City reacts promptly to a variety of service requests. These include requests that are phoned into the City Manager's Office or directly to the Customer Service Center. Commissioners should contact the City Manager directly about a constituency concern. The City Manager will investigate the compliant, follow up and report to the Commissioner and constituent who had the concern. Please try to be specific in the information that is provided to the City Manager. City Web page: cityofaventura.com New Commissioner Orientation Briefing -13 - E. RELATIONSHIP OF COMMISSION TO MANAGER The City Manager is appointed by the City Commission to enforce its laws, to direct the daily operations of City government, to prepare and monitor the municipal budget, and to implement the policies and programs initiated by the City Commission. The City Manager is responsible to the City Commission rather than to individual Commission members, and directs and coordinates the various departments. Commission I Manager Relationship The employment relationship between the City Commission and City Manager honors the fact that the City Manager is the Chief Executive Officer of the City. The City Commission should avoid situations that can result in City staff being directed, intentionally or unintentionally, by any member of the City Commission. Regular communication between the City Commission and City Manager is important in maintaining open communications. All dealings with the City manger, whether in public or private, should respect the authority of the City Manager in administrative matters. The City Commission is to evaluate the City Manager on a regular basis to ensure that both the City Commission and City Manager are in agreement about performance and goals based on mutual trust and common objectives. As in any professional relationship, it is important that the City Manager keep the City Commission informed. The City Manager respects and is sensitive to the political responsibility of the City Commission and acknowledges that the final responsibility for establishing the policy direction of the City is held by the City Commission. The City Manager communicates with the City Commission in various ways. There is a formalized approach by holding briefing meetings with individual Commission members (so-called "1x1" meetings) and through "For Your Information". Communication must be undertaken in such a way that all Commission members are treated similarly and kept equally informed. New Commissioner Orientation Briefing - 14- F. RELATIONSHIP OF COMMISSION TO ATTORNEY AND CLERK The City Attorney is the legal advisor for the City Commission, City Manager and department directors. The general responsibilities of the City Attorney are: . Provide legal assistance necessary for formulation and implementation of legislative policies and projects. . Represent the City's interest, as determined by the City Commission, in litigation, administrative hearings, negotiations and similar proceedings. . Prepare ordinances, resolutions, contracts and other legal documents. . Keep the City Commission and staff apprised of court rulings and legislation affecting the legal interests of the City. It is important to note that the City Attorney does not represent individual members of the Commission, but the City Commission as a whole. The general responsibilities of the City Clerk are: 1. To maintain accurate minutes of the proceedings of the City Commission and advisory boards. 2. To publish public notices as required by law. 3. To maintain custody of City records and coordinate the storage of said records. 4. To provide clerical support to the City Commissioners, including preparation of memos, faxes and correspondence (limited), telephone calls, travel arrangements, hotel and conference registrations. Commission mail opened, distributed and responded to, as directed. 5. To administer the publication of the code book, supplements and indexing of City Commission minutes. 6. Conduct municipal elections in accordance with city, county and state laws. 7. Establish and coordinate the City's records management program in compliance with state law. 8. Provide for preparation!distribution of Commission/Board agendas upon receipt of documentation!direction from the City Manager. 9. Compose and prepare Proclamations, Certificates, Letters of Welcome to new residents, etc. 10. Serve as Financial Disclosure coordinator. 11. Swear in new members of Commission and all Police Officers. 12. Coordinate Code Enforcement Hearings, provide notice to all parties and clerical assistance to Special Master. 13. Respond to requests for liens and copies of public records. 14. Prepare Ordinances and Resolutions as directed and provide for distribution!codification. New Commissioner Orientation Briefing - 15- - _._~ G. SUNSHINE LAW /PUBLIC RECORDS MOST FREQUENTL Y ASKED QUESTIONS ON FLORIDA'S OPEN GOVERNMENT LAWS The following questions and answers are intended to be used as a reference only -- interested parties should refer to the Florida Statutes and applicable case law before drawing legal conclusions. Q. What is the Sunshine Law? A. Florida's Government-in-the-Sunshine law provides a right of access to governmental proceedings at both the state and local levels. It applies to elected and appointed boards and applies to any gathering of two or more members of the same board to discuss some matter which will foreseeably come before that board for action. There is also a constitutionally guaranteed right of access. Q. What are the requirements of the Sunshine law? A. The Sunshine law requires that 1) meetings of boards or commissions must be open to the public; 2) reasonable notice of such meetings must be given, and 3) minutes of the meeting must be taken. Q. What agencies are covered under the Sunshine Law? A. The Government-in-the-Sunshine Law applies to "any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or political subdivision." Thus, it applies to public collegial bodies within the state at both the local as well as state level. It applies equally to elected or appointed boards or commissions. Q. Are federal agencies covered by the Sunshine Law? A. Federal agencies operating in the state do not come under Florida's Sunshine law. Q. Does the Sunshine Law apply to the Legislature? A. Florida's Constitution provides that meetings of the Legislature be open and noticed except those specifically exempted by the Legislature or specifically closed by the Constitution. Each house is responsible through its rules of procedures for interpreting, implementing and enforcing these provisions. Information on the rules governing openness in the Legislature can be obtained from the respective houses. New Commissioner Orientation Briefmg -16 - Q. Does the Sunshine Law applies to members-elect? A. Members-elect of public boards or commissions are covered by the Sunshine law immediately upon their election to public off ice. Q. What qualifies as a meeting? A. The Sunshine law applies to all discussions or deliberations as well as the formal action taken by a board or commission. The law, in essence, is applicable to any gathering, whether formal or casual, of two or more members of the same board or commission to discuss some matter on which foreseeable action will be taken by the public board or commission. There is no requirement that a quorum be present for a meeting to be covered under the law. Q. Can a public agency hold closed meetings? A. There are a limited number of exemptions which would allow a public agency to close a meeting. These include, but are not limited to, certain discussions with the board's attorney over pending litigation and portions of collective bargaining sessions. In addition, specific portions of meetings of some agencies (usually state agencies) may be closed when those agencies are making probable cause determinations or considering confidential records. Q. Does the law require that a public meeting be audio taped? A. There is no requirement under the Sunshine law that tape recordings be made by a public board or commission, but if they are made, they become public records. Q. Can a city restrict a citizen's right to speak at a meeting? A. Public agencies are allowed to adopt reasonable rules and regulations which ensure the orderly conduct of a public meeting and which require orderly behavior on the part of the public attending. This includes limiting the amount of time an individual can speak and, when a large number of people attend and wish to speak, requesting that a representative of each side of the issue speak rather than every one present. Q. As a private citizen, can I videotape a public meeting? A. A public board may not prohibit a citizen from videotaping a public meeting through the use of nondisruptive video recording devices. New Commissioner Orientation Briefing -17 - Q. Can a board vote by secret ballot? A. The Sunshine law requires that meetings of public boards or commissions be "open to the public at all times." Thus, use of preassigned numbers, codes or secret ballots would violate the law. Q. Can two members of a public board attend social functions together? A. Members of a public board are not prohibited under the Sunshine law from meeting together socially, provided that matters which may come before the board are not discussed at such gatherings. Q. What is a public record? A. The Florida Supreme Court has determined that public records are all materials made or received by an agency in connection with official business which are used to perpetuate, communicate or formalize knowledge. They are not limited to traditional written documents. Tapes, photographs, films and sound recordings are also considered public records subject to inspection unless a statutory exemption exists. Q. Can I request public documents over the telephone and do I have to tell why I want them? A. Nothing in the public records law requires that a request for public records be in writing or in person, although individuals may wish to make their request in writing to ensure they have an accurate record of what they requested. Unless otherwise exempted, a custodian of public records must honor a request for records, whether it is made in person, over the telephone, or in writing, provided the required fees are paid. In addition, nothing in the law requires the requestor to disclose the reason for the request. Q. How much can an agency charge for public documents? A. The law provides that the custodian shall furnish a copy of public records upon payment of the fee prescribed by law. If no fee is prescribed, an agency is normally allowed to charge up to 15 cents per one-sided copy for copies that are 14" x 8 1/2" or less. A charge of up to $1 per copy may be assessed for a certified copy of a public record. If the nature and volume of the records to be copied requires extensive use of information technology resources or extensive clerical or supervisory assistance, or New Commissioner Orientation Briefing - 18- both, the agency may charge a reasonable service charge based on the actual cost incurred. Q. Does an agency have to explain why it denies access to public records? A. A custodian of a public record who contends that the record or part of a record is exempt from inspection must state the basis for that exemption, including the statutory citation. Additionally, when asked, the custodian must state in writing the reasons for concluding the record is exempt. Q. When does a document sent to a public agency become a public document? A. As soon as a document is received by a public agency, it becomes a public record, unless there is a legislatively created exemption which makes it confidential and not subject to disclosure. Q. Are public employee personnel records considered public records? A. The rule on personnel records is the same as for other public documents ... unless the Legislature has specifically exempted an agency's personnel records or authorized the agency to adopt rules limiting public access to the records, personnel records are open to public inspection. There are, however, numerous statutory exemptions that apply to personnel records. Q. Can an agency refuse to allow public records to be inspected or copied if requested to do so by the maker or sender of the documents? A. No. To allow the maker or sender of documents to dictate the circumstances under which documents are deemed confidential would permit private parties instead of the Legislature to determine which public records are public and which are not. Q. Are arrest records public documents? A. Arrest reports prepared by a law enforcement agency after the arrest of a subject are generally considered to be open for public inspection. At the same time, however, certain information such as the identity of a sexual battery victim is exempt. Q. Is an agency required to give out information from public records or produce public records in a particular form as requested by an individual? A. The Sunshine Law provides for a right of access to inspect and copy existing public records. It does not mandate that the custodian give out information from the records New Commissioner Orientation Briefing -19 - nor does it mandate that an agency create new records to accommodate a request for information. Q. What agency can prosecute violators? A. The local state attorney has the statutory authority to prosecute alleged criminal violations of the open meetings and public records law. Certain civil remedies are also available. Q. What is the difference between the Sunshine Amendment and the Sunshine Law? A. The Sunshine Amendment was added to Florida's Constitution in 1976 and provides for full and public disclosure of the financial interests of all public officers, candidates and employees. The Sunshine Law provides for open meetings and open records for all governmental agencies. Q. How can I find out more about the open meetings and public records law? A. Probably the most comprehensive guide to understanding the requirements and exemptions to Florida's open government laws is the Government-in-the-Sunshine manual compiled by the Attorney General's Office. The manual is updated each year and is available for purchase through the First Amendment Foundation in Tallahassee. For information on obtaining a copy, contact the First Amendment Foundation at (850) 222-3518. Florida is renowned for putting a high priority on the public's right of access to governmental meetings and records. In fact, the principles of open government are embodied not only in Florida statutes, but also guaranteed in the state Constitution. Florida began its tradition of openness back in 1909 with the passage of what has come to be known as the "Public Records Law," Chapter 119 of the Florida Statutes. This law provides that any records made or received by any public agency in the course of its official business are available for inspection, unless specifically exempted by the Legislature. Over the years, the definition of what constitutes "public records" has come to include not just traditional written documents such as papers, maps and books, but also tapes, photographs, film, sound recordings and records stored in computers. New Commissioner Orientation Briefing - 20- It was in 1967 that Florida's Government-in-the-Sunshine Law was enacted. Today, the Sunshine Law can be found in Chapter 286 of the Florida Statutes. The Sunshine Law establishes a basic right of access to most meetings of boards, commissions and other governing bodies of state and local governmental agencies or authorities. Throughout the history of Florida's open government, its courts have consistently supported the public's right of access to governmental meetings and records. As such, they also have been defining and redefining what a public record is and who is covered under the open meetings law. One area of public concern was whether or not the Legislature was covered under the open meetings requirements. To address that concerns, a Constitutional amendment was passed overwhelmingly by the voters in 1990 providing for open meetings in the legislative branch of government. New Commissioner Orientation Briefing - 21- H. MAIL Members of the City Commission receive a large volume of mail and other materials from their public, private interests and City Manager. Mail boxes are maintained for members adjacent to the City Manager's Office. Agenda packets and mail will be placed in the drop off box located in the parking garage on the Friday prior to the Commission meeting. E-mail sent to the City Commission via the city's email address is routed to the City Clerk who distributes them to the individual City Commission members. New Commissioner Orientation Briefing - 22- INFORMATION FLOW / TYPES OF REPORTS 1. City ManaQer Information Report - contains information of interest to Commissioners. 2. City Manaqer Update Report - is used to update the progress or status of a project, policy implementation or item that was discussed at a Commission Meeting. 3. City Manaqer Briefinq Report - status of major projects and ongoing matters. 4. Operational Reports - Monthly Departments submit to City Manager a. Police Department b. Community Services Department 5. Annual Audit and Financial Statements March I April - Annual Audit and Financial Statements 6. Newsletters - Four times a year 7. Annual Report - January I February New Commissioner Orientation Briefing - 23- Charter School Governance Structure 1. City Commission serves as Board of Directors. Major responsibilities include the following: a. Approve annual budget b. Review final School design c. Approve loans and financing d. Issue Annual Progress Reports in accordance with Chapter 228 FS e. Other responsibilities which may time to time be required by statue ( e.g., applying for waiver of certain statuary provisions. 2. A Charter School Advisory Board provides input to the City Manager and School Principal on the following issues: a. Long range strategic plans b. Budget review and recommendation c. Fund raising efforts d. Review and recommend performance standards to measure school's success. e. Review of school's polices to ensure consistency with school's mission. f. Provide recommendations on school policy issues. The board consists of seven members, each of whom are parents of the school's children, selected by the parents of school children as follows: a. Kindergarten to Second grade -3 representatives b. Third grade to Fifth grade - 3 representatives c. At large - I representatives 3. The Charter School operates as a City department reporting to the City Manager. Governance Structure CITY COMMISSION I City Manager FinancelSupport Community Community Public CSUSA Charter Services Services Development Safety Management Co. School School ~ Advisory New Commissioner Orientation Briefing - 24- -- -- UNDERSTANDING THE BUDGET BUDGET SYSTEM The City of Aventura uses the Budgeting by Objectives Process in the formulation of its budget. Departmental Budgets include a Recap page that contains the Department Description and Personnel Allocation Summary and Organization Chart. Each department also includes an Objectives page and a Budgetary Account Summary. The Objectives page presents a review of the department objectives and performance/workload indicators. The Budgetary Account Summary provides expenditure detail and a comparison of current and previous years expenditures. The Budgetary Process is intended to be very valuable in communicating with the Commission and citizens ofthe City. BUDGET PROCESS The City of Aventura's Budget process began in April with a staff meeting between the City Manager and Department Directors to review budget philosophy and develop overall goals and objectives. The entire budget process encompasses approximately five (5) months of the fiscal year. During this period, meetings were held with Department Directors, the City Commission and the public to insure representative input. The budget calendar that follows details the actions taken during the budget process. DATE RESPONSIBILITY ACTION REQUIRED April 6 City Manager Overview of budgetary issues and Department Directors establish priorities. April 24 City Manager Staff meeting is held to distribute Budget Request Forms. Forms will include budget figures for previous fiscal year along with actuals for six months of current fiscal year. April 24 to May 19 All Department Directors Completed Budget estimates are City Manager submitted to City Manager. Revenue Finance Department estimates are prepared. May 19 to July 10 City Manager Conducts departmental budget review meetings, balances budget and prints budget documents. July 10 City Manager City Manager's recommended budget document and message are submitted to City Commission. July 21 City Manager Budget Review Meeting, adopt City Commission tentative Ad Valorem rate September 6- City Commission First Reading on Budget and Ad Valorem Tax Rate Ordinance New Commissioner Orientation Briefing - 25- September 20* City Commission Second Reading on Budget, Ad Valorem Tax Rate Ordinance and Public Hearings September 21 City Clerk Tax Rate Ordinance delivered to Property Appraiser. October 1 All Departments New Budget becomes effective. *Dates subject to change based on School Board and county Commission dates. BUDGET AMENDMENT The Budget Amendment Process will differ as to form depending on whether or not the original budget appropriation is exceeded as follows: - Any change or amendment to the budget that will increase the original total appropriated amount can only be accomplished with the preparation of an Ordinance requiring two (2) public hearings and approval by the City Commission. - Any change or amendment to the budget which transfers monies within a fund but does not increase the total appropriated amount can be accomplished with the preparation of a Resolution. This does not require a public hearing, however, approval by the City Commission is still necessary. BASIS OF ACCOUNTING Basis of Accounting refers to the time period when revenues and expenditures are recognized in the accounts and reported on the financial statements. Basis of accounting relates to the timing of the measurements made, regardless of the measurement focus applied. The accrual basis of accounting is followed for the proprietary fund types. The modified accrual basis of accounting is followed in the governmental fund types and the expendable trust funds type. Under the modified accrual basis of accounting, revenues are recorded when susceptible to accrual, that is, when they are both measurable and available. Available means collectible within the current period or soon enough thereafter to pay current liabilities. Expenditures are generally recognized under the modified accrual accounting when the related fund liability is incurred. Exceptions to the general rule are principal and interest on general long-term debt which is recognized when due. New Commissioner Orientation Briefing - 26- PURPOSE OF THE CAPITAL IMPROVEMENT PROGRAM The purpose of the Capital Improvement Program (CIP) is to establish a long term plan of proposed capital expenditures, the means and methods of financing, and a schedule of priorities for implementation. In order to determine the impact on the City's operating budget, debt service and the general trend of future expenditures, the City Commission will be provided with the advantage of a CIP document as a point of reference and estimated long term budget plan. In accordance with the State's Growth Management Act, the City is required to undergo this process in order to meet the needs of its Comprehensive Plan. The CIP is an official statement of public policy regarding long-range capital development in the City of A ventura. A capital improvement is defined as a capital expenditure of $2,500 and office equipment expenditure of $500 or more, resulting in the acquisition, improvement or addition to fixed assets in the form of land, buildings or improvements, more or less permanent in character, and durable equipment with a life expectancy of more than one year. The CIP lists proposed capital projects to be undertaken, the year in which they will be started, the amount expected to be expended in each year and the method of financing these projects. Based on the CIP, a department's capital outlay portion of the annual Operating Budget will be formulated for that particular year. The CIP document also communicates to the citizens, businesses and interested parties the City's capital priorities and plan for implementing projects. The five-year CIP is updated annually to add new projects in the fifth year, to re-evaluate the program and project priorities in light of unanticipated needs, and to revise recommendations to take account of new requirements and new sources of funding. Capital Improvement programming thus becomes a continuing part of the City's budgeting and management procedures. The annual capital programming process provides the following benefits: 1. The CIP is a tool for implementing the City's Comprehensive Plan. 2. The CIP process provides a mechanism for coordinating among projects with respect to function, location, and timing. 3. The yearly evaluation of project priorities ensures that the most crucial projects are developed first. 4. The CIP process facilitates long-range financial planning by matching estimated revenue against capital needs, establishing capital expenditures and identifying the need for municipal borrowing and indebtedness within a sound long-range fiscal framework. The sound fiscal policy that results from this process will have a positive impact on the City's bond rating. 5. The impact of capital projects on the City's operating budget can be projected. New Commissioner Orientation Briefing - 27- 6. The CIP serves as a source of information about the City's development and capital expenditures plan for the public, City operating departments, and the City Commission. LEGAL AUTHORITY A capital programming process to support the comprehensive plan is required by the Local Government Comprehensive Planning and Land Development Regulations, incorporated as Chapter 163, Florida Statues. DEVELOPMENT OF THE CAPITAL IMPROVEMENT PROGRAM The City's capital programming process began in December when operating departments were required to prepare requests for all proposed capital projects anticipated during the period of 2003 -2008. A CIP Preparation Manual and related forms were distributed to all departments for this purpose. In February, departmental prioritized project requests were submitted to the City Manager's Office. Department Directors were asked to justify projects in terms of benefits derived, necessity to health, safety and welfare of the City, enhancement to City plans and policies, need of residents and funding. Projects were prioritized on the basis of Urgent, Necessary, Desirable, and Deferrable. The City Manager reviewed departmental requests and conducted individual meetings with Department Directors. The departmental requests were prioritized and the five-year schedule of projects was compiled into document form by the City Manager. The methods of financing and revenue sources were then prepared by the Finance Support Services Director and City Manager and were incorporated into the CIP document. At this point, the proposed CIP is submitted to the City Commission and public for review. In order to facilitate public involvement, public hearings and community meetings will be held to unveil and review the CIP document prior to the adoption of a Resolution approving the CIP in principle. CAPITAL IMPROVEMENT PROGRAM POLICIES 1. Annually, the City will prepare a five-year capital improvement program analyzing all anticipated capital expenditures and identifying associated funding sources. Future capital expenditures necessitated by changes in population, changes in development, growth, redevelopment or changes in economic base will be calculated and included in the Capital update process. 2. The City will perform all capital improvements in accordance with an adopted capital improvement program. 3. The classification of items as capital or operating will be determined by two criteria - cost and frequency. Generally, a capital project has a "useful life" of New Commissioner Orientation Briefing - 28- more than one year and a value of $2,500 or more, or for office equipment $500 or more. 4. The City will coordinate development of the capital improvement budget with the development of the operating budget. Future operating costs associated with new capital improvements will be projected and included in the operating forecasts. 5. The first year of the five-year capital improvement program will be used as the basis for formal fiscal year appropriations during the annual budget process. 6. The City will maintain all of its assets at a level adequate to protect the City's capital investment and to minimize future maintenance and replacement costs. 7. The City will identify the estimated cost of capital projects and prepare a funding projection that considers revenues and operating costs to be included in the Capital Improvement Program document that is submitted to the City Commission for approval. 8. The City will determine the most appropriate financing method for all new projects. 9. If appropriate, the City will attempt to maintain a mixed policy of pay-as-you-go and borrowing against future revenues for financing capital projects. 10 The City will maintain ongoing maintenance schedules relating to road, sidewalk and drainage system improvements. 11. The City will address and prioritize infrastructure needs on the basis of protecting the health, safety and welfare of the community. 12. A CIP preparation calendar shall be established and adhered to. 13. Capital projects will conform to the City's Comprehensive Plan. 14. Long-term borrowing will not be used to fund current operations or normal maintenance. 15. The City will strive to maintain an unreserved general fund balance at a level not less than 7.5% of the annual general fund revenue. 16. If new project appropriation needs are identified at an interim period during the fiscal year, the funding sources will be identified and mid-year budget amendments will be utilized to provide formal budgetary authority. In addition budget amendments may be utilized to increase appropriations for specific capital projects. PREPARING THE CAPITAL BUDGET The most important year of the schedule of projects is the first year. It is called the Capital Budget and is adopted separately from the five year program as part of the annual budget review process. Based on the CIP, each department's capital outlay portion will be formulated for that particular year. Each year the CIP will be revised and another year will be added to complete the cycle. Capital Improvement Programming thus becomes a continuing part of the City's budget and management process. New Commissioner Orientation Briefing - 29- The Capital Budget is distinct from the Operating Budget. The Capital Budget authorizes capital expenditures, while the Operating Budget authorizes the expenditure, in the coming year, of funds for employee salaries, supplies, and materials. Through the City's amendment process, changes can be made to the adopted Capital Budget during the fiscal year. A request for amendment is generated by an operating department based on an urgent need for new capital project or for additional funding for a previously approved project. The request is reviewed by the Finance Support Services Director and City Manager and, if approved by the City Manager, a budget amendment is presented to the City Commission. Tax Information Where Your Tax Dollars Go City of Aventura 10.0% School Board 43.2% So. Florida Water Man. 2. T% Inland Navigation Dist 0.2% Everglades Project 0.4% Metro Dade 43.5% New Commissioner Orientation Briefing - 30- - 2004/05 Capital Projects Update Major Capital Improvement Projects Status Report NE 34th Avenue Street Liehtine Improvements Complete. Illuminated Street Sil!lls Complete. Middle School Addition Ongoing. Grade beam, pile cap work and underground electric and plumbing installation is continuing in preparation to pour the finished floor slab. The entire finished floor slab is expected to be in place between March 18 and March 25. Tilt up panels will begin to be poured on March 17 and erection of the panels will begin March 25. NE 18Sth Street Connector The work authorization for design of roadway, drainage, sidewalk and street lighting improvements has been approved and plans will be advertised for bids this month. NE 207'h Street Overlav Bid is scheduled for award in April 2005. Hospital District NE 213th Collector In Process. The contractor has completed all drainage work within the north bound lanes of Biscayne Boulevard and is currently working within the south bound lanes. The contractor has indicated that work requiring lane closures will be complete on April 7. The project is scheduled for completion on April 23. Countrv Club Drive Joelrine Path Improvements In Process. Purchase Orders have been issued for the water fountain replacement and seal coating. Beautification improvements are in design. Yacht Club Wav Landscapine & Street Liehtine Improvements In Process. The bid was awarded to Trintec Construction Inc. in the amount of $378,631.77 at the September Commission Meeting. Street light installation will begin in two weeks. Lehman Causewav Frontaee Road Street Liehtine In Process. A Joint Project Agreement (JPA) has been approved. A bid opening is scheduled for March 18,2005. Upon completion, FDOT will reimburse all costs, excluding the additional monies the City paid for the typical street lights, versus the cost for typical FDOT street lights Police Eeress Lane In Process. The bid was awarded at the January Commission Meeting to Paramount Engineering in the amount of$77,375.98. New Commissioner Orientation Briefing - 31- Issues 1. Building Moratorium 2. Village at Gulfstream Park DRI 3. Waterways Park Land Condemnation 4. Evaluations and Appraisal Report Comprehensive Plan Update 5. Redevelopment, Town Center 6. Extension of Miami Gardens Drive 7. Traffic Improvements - Traffic Video Monitoring Program 8. Five Year Capital Improvement Program 9. PBA Negotiations 1 O.E9ll Study II.Library Renovations 12. LDR amendments relating to parking garages within Building Envelope New Commissioner Orientation Briefing - 32- I Annenciix A I CITY OF AVENTURA COMPREHENSIVE COMMISSION MEETING AND AGENDA PROCEDURES CITY COMMISSION MEETINGS Reqular Meetinqs. The City Commission shall hold regular meetings on the first Tuesday of each month at 6:00 p.m. at the Aventura Government Center located at 19200 West Country Club Drive, Aventura, Florida or such other location designated by the City Commission from time to time. Special Meetinqs. Special meetings of the City Commission may be held upon the call of the Mayor or City Manager or upon the call of four (4) or more members of the City Commission. Whenever, a Special Meeting is called, forty-eight (48) hours' notice shall be given to each member of the City Commission and the public, or such shorter time as the majority of the City Commission shall determine necessary in case of an emergency affecting life, health, property or the public peace. Immediately upon convening such meeting, the City Commission shall consider such determination. Notice to the public shall be posted at the Aventura City Government Center. Notices shall state the place, date and hour of the meeting and the purpose for which such meeting is called and no further business shall be transacted at the meeting except as stated in the notice. Discussions at Special Meetings shall be limited to the items referred to on the agenda for such meetings. All meetings shall be open to the public, except as may be expressly exempted by state law. Robert's Rules of Order. All meetings of the City Commission shall be governed by the rules of procedure provided by Robert's Rules of Order, Newly Revised 1990 Edition. New Commissioner Orientation Briefing - 33- DUTIES AND RESPONSIBILITIES OF THE MAYOR Mavor To Serve As Presidinq Officer. The Mayor shall be the presiding officer at all City Commission meetings. The Vice Mayor shall act as the presiding officer during the absence of the Mayor. In the absence of both the Mayor and Vice Mayor, the remaining Commissioners shall, by majority vote, select a presiding officer to carry out the functions of Mayor, as defined in this Resolution. The Mayor shall decide on all questions of order, subject, however, to an appeal to the other members of the City Commission, in which event a majority vote of the City Commission will govern such questions of order. The Mayor shall vote on all questions and items and be called last. The Mayor shall introduce agenda items by the agenda item number. The City Attorney shall read the titles of legislation as requested by the Mayor. Thereafter, the Mayor may call upon the City Manager to give any needed explanation of the item up for consideration. Following this, the item shall be opened for City Commission discussion or public hearing as required by the item, under the guidelines established herein. All comments or questions by the attending public shall be directed to the Mayor. Mavor to Maintain Decorum At Commission Meetinqs. Should a member of the audience become unruly or behave in any improper manner prejudicial to the proper conduct of the meeting, the Mayor is given the right and the authority to require such person to leave the Commission Chambers, to be accompanied, if necessary, by a Police Officer. In the event the audience or a part thereof becomes unruly, the Mayor may either recess or adjourn the meeting. ORDER OF BUSINESS The order of business of the City Commission at the regular meetings shall be as follows: New Commissioner Orientation Briefmg - 34- . , I I --. -.--- .. (1 ) Call to Order/Roll Call (2) Pledge of Allegiance (3) Zoning Hearings (4) Special Presentations (5) Consent Agenda (6) Ordinances- First Reading/Public Input (7) Public Hearings - Ordinances - Second Reading (7) Resolutions (8) Reports (9) Public Comments (10) Other Business (11) Adjournment COMMISSION DISCUSSION Discussion Bv Commissioners. Discussion by members of the City Commission, including the Mayor, shall be unlimited except as determined by a majority of the City Commission. Each member shall be afforded the opportunity to offer rebuttal to each item discussed. A member, once recognized by the Mayor, shall direct all comments or questions on the subject matter being discussed to the Mayor only. Commissioners shall not engage in cross conversation with other members or the public. Members of the City Commission shall not interrupt another member who has the floor. The Mayor shall not unreasonably withhold or delay recognition of any member of the City Commission desiring to speak. The Mayor shall recognize other members of the City Commission in rotation and not call on any member a second time or subsequent time until such time as all members shall have had an opportunity to speak. Questions Bv Commissioners. In the event a member wishes to direct questions to another member or to the public during a public meeting or presentation, the questions shall be directed to the Mayor who, in turn, will recognize the Commissioner or member of the public who wishes to answer the specific questions. In the event a member wishes to direct a question to the City Manager, the question shall be New Commissioner Orientation Briefing - 35- directed to the City Manager through the Mayor, who will, in turn, recognize the member. All questions of City staff shall be made through the City Manager. PUBLIC PARTICIPATION AND DISCUSSION Public Hearinas. Individuals wishing to speak on matters that appear on the agenda as "Public Hearings" need only to be recognized by the Mayor. The public shall be permitted to speak after the Mayor opens an item for Public Hearing. After the Public Hearing is closed by the Mayor, only members of the City Commission or Administration shall discuss the item. Addressina Commission. Manner and Time. Public discussion shall be limited to three minutes maximum per person; however, the Mayor may authorize the extension of the aforesaid time frame, after due consideration for the substance, content and relative importance of the subject. Any extensions granted should apply to other individuals speaking on the same subject. Each person who addresses the Commission shall step up to the speaker's podium and shall give his/her name and address. No person other than the Commission and the person recognized by the Mayor as having the floor shall be permitted to enter into discussion without the permission of the Mayor. All questions from the public to the Commission shall be addressed through the Mayor. COMMISSION MEETING ITEMS Special Presentations. This section of the agenda is reserved for presentations, proclamations or special recognition made by the Mayor. Consent Aaenda. There shall be a consent agenda during each regular City Commission meeting. The consent agenda shall contain Resolutions, approval of minutes, motions and other pertinent matters which, in the opinion of the City New Commissioner Orientation Briefing - 36- Manager, may be handled and implemented without necessity for discussion. Unless a Commissioner specifically requests that an item be removed from the consent agenda, such items shall be approved and adopted by a single motion and roll call vote. Public Hearinqs. Ordinances for second reading or items requiring a public hearing shall be placed on this portion of the agenda. Resolutions. Resolutions not included on the consent agenda shall be placed on this portion of the agenda. Reports. This section of the agenda shall be utilized for the Mayor, Commissioners, City Manager and City Attorney to provide informational reports. As much as it is possible, the topic of the report should be provided to the City Manager prior to the close of the agenda so that the item may be noticed to the public. No final action may be taken during this portion of the agenda unless determined to be an emergency by five (5) affirmative votes of the City Commission. Other Business. The Mayor or a Commissioner who has a request for the preparation of policy legislation or action by the City Attorney or Administration shall place such requests for consideration by the City Commission under this section of the agenda. A signed written memorandum or form provided for such purposes shall state the purpose of the item/action, the major points to be covered, the reasons for necessary New Commissioner Orientation Briefing - 37- action, and the action desired by the Commissioner. Said document shall be provided to the City Manager prior to the deadline for closing the agenda. The request shall not be acted upon until such request is approved by a motion of the majority of the City Commission. Public Comments. Individuals wishing to speak on matters not on the agenda but pertinent to the City may do so under the Public Comments portion of the agenda. The Mayor will recognize those persons who wish to speak. Adiournment. All meetings of the City Commission, whether they be special or regular meetings, shall be adjourned at 12:00 midnight. However, the City Commission, by affirmative vote of five Commissioners present at the meeting, may extend the meeting beyond the time limit. In any event, the motion to continue the meeting must provide for a specific time frame which the City Commission will honor for the purposes of continuing the meeting. COMMISSION AGENDA PREPARATION Placement of Items on AQenda. All appropriate background material shall accompany the item in the form of a signed memorandum. All information relating to items to be placed on the agenda shall be submitted by the City Commissioner to the City Manager by 12:00 noon the Tuesday prior to a regular meeting. A complete package of all agenda material shall be provided to the City Commission by the City Manager no later than the Friday evening prior to the date of the meeting. In the event pertinent New Commissioner Orientation Briefing - 38- ~'-------.,--'~-~_._---- information relating to an agenda item is missing or unaccounted for prior to the meeting, the City Commission may remove the item from the agenda at the meeting. Aoenda Closino Dates. The agenda for all regular meetings of the City Commission shall be closed by 5:00 p.m. on the Tuesday prior to the date of the meeting. No additional items shall be added to the agenda after the agenda closing date unless it is deemed to be an emergency. An item requiring immediate Commission action and not included in the agenda may be added to the agenda by five (5) affirmative votes of the City Commission determining consideration of such item is necessary as an emergency. Preparation of Leaislation. All Ordinances and Resolutions shall show the name of each Commissioner and whether such member voted for, against or failed to vote. All Ordinances and Resolutions, once approved by the City Commission, shall be executed by the Mayor and attested to by the City Clerk. Seauence of Aoenda Items. Upon request by the Mayor and/or other members of the Commission, items on the agenda may be moved out of sequence in order to expedite the matters before the City Commission. New Commissioner Orientation Briefing - 39- Weiss Serota Helfman Pastoriza Guedes Cole & Boniske, P.A. Memo To: The Honorable Mayor and Commissioners of the City of A ventura From: David M. Wo1pin Date: March 15,2005 Re: Update - State and County Conflict of Interest and Ethics Guidelines As you are aware, Commissioners and other city officers, employees and board members are subject to particular ethical restrictions and requirements pursuant to both state and local law, the Code of Ethics for Public Officers and Employees, Sections 112.311-112.326, Fla. Stat., (the "State Ethics Code"), and the Miami-Dade County Conflict of Interest and Code of Ethics Ordinance (the "County Ethics Code"). This memorandum shall explain the recent changes to the County Ethics Code which are generally applicable to local public officials in Miami-Dade County. All references herein to a City shall include Towns or Villages. All references herein to City, Village or Town Councils shall include City, Village or Town Commissions. Set forth below is a summation of (1) the applicability of both state and local law to regulated persons; (2) county and state gift restrictions; and (3) the revisions of Subsections 2- 11.1(e), 2-11.1(w), and 2-11.1(aa), of the County Ethics Code.! I. APPLICABILITY The conflict of interest and ethics guidelines mandated by state law and county ordinance impose similar but independent obligations upon regulated persons. The restrictions and provisions of the County Ethics Code apply to Miami-Dade County Commissioners, officers, employees and board members. Further, they are made applicable to municioa1 Councilmembers. officers. emolovees and board members within Miami-Dade County (the "Local Official"), pursuant to Subsection 2-11.1(a) which provides, in pertinent part, as follows: 'I Subsection 2-11.1(aa), Miami-Dade County Code, was previously numbered Subsection 2-11.1(z) and was renumbered effective March 26, 2004. This section shall be applicable to all County personnel as defmed herein, and shall also constitute a minimum standard of ethical conduct and behavior for all municipal officials and officers. autonomous personnel. quasi-judicial personnel. advisory personnel. deoartmental personnel and employees of municipalities in the County insofar as their individual relationships with their own municipal governments are concerned. References in the section to County personnel shall therefore be applicable to municipal personnel who serve in comparable capacities to the Countv personnel referred to. The general standards of conduct of the State Ethics Code apply to all public officers, candidates and employees. The more stringent gift restrictions and prohibitions established by Section 112.3148, Fla. Stat. (the "State Gift Law") apply to Counci1members and to all other city officers, employees and board members, who are required to file financial disclosure under Section 112.3145, Fla. Stat. (State Form No.1), (the "Reporting Individuals,,).2 Accordingly, the County Ethics Code reaches a broader subject group than that of the Reporting Individual governed by the State Gift Law. Reference herein to the requirements applicable to City personnel, board members or Councilmembers, likewise apply to county personnel, board members and commission members. '; Section 112.3145, Fla. Stat., requires state and local officers, and specified state employees to file a statement of financial interests no later than July I of each year. A "Local officer" pursuant to Section 112.3145, Fla. Stat., means: (1) Every person who is elected to office in any political subdivision of the state, and every person who is appointed to fill a vacancy for an unexpired term in such an elective office. (2) Any appointed member of any of the following boards, councils, commissions, authorities, or other bodies of any county, municipality, school district, independent special district, or other political subdivision of the state: (a) the governing body of the political subdivision, if appointed; (b) an expressway authority or transportation authority established by general law; (c) a community college or junior college district board of trustees; (d) a board having the power to enforce local code provisions; (e) a planning or zoning board, board of adjustment, board of appeals, or other board having the power to recommend, create, or modify land planning or zoning within the political subdivision, except for citizen advisory committees, technical coordinating committees, and such other groups who only have the power to make recommendations to planning or zoning boards; (f) a pension hoard or retirement board having the power to invest pension or retirement funds or the power to make a binding determination of one's entitlement to or amount of a pension or other retirement benefit; or (g) any other appointed member of a local government board who is required to file a statement of fmancial interests by the appointing authority or the enabling legislation, ordinance, or resolution creating the board. (3) Any person holding one or more of the following positions: mayor; county or city manager; chief administrative employee of a county, municipality, or other political subdivision; county or municipal attorney; chief county or municipal building code inspector; county or municipal water resources coordinator; county or municipal pollution control director; county or municipal environmental control director; county or municipal administrator, with power to grant or deny a land development permit; chief of police; fIre chief; municipal clerk; district school superintendent; community college president; district medical examiner; or purchasing agent having the authority to make any purchase exceeding the threshold amount provided for in s. 287.017 for CA TEGOR Y ONE, on behalf of any political subdivision of the state or any entity thereof. 2 II. SUMMARY OF COUNTY AND STATE GIFT RESTRICTIONS.3 Although the gift receipt and reporting restrictions imposed by the State Ethics Code and County Ethics Code are separately considered and described below, it is helpful to set forth, in summary fashion, an outline of the applicable restrictions. 1. If the value of a gift received by a Local Official or Reporting Individual is not greater than $100.00, the gift may be accepted from any person and there is no necessity to report such gift. 2. If the value of a gift received by a Local Official or Reporting Individual is greater than $25.00 but not greater than $100.00 and from a Lobbyist or Political Committee, they, as special donors, are responsible for filing a report with the Florida Commission on Ethics (in satisfaction of the State Ethics Code). 3. If the value of the gift which is received by the Local Official or Reporting Individual is in excess of $100.00, the gift may be accepted from anv person other than from a Political Committee or Lobbvist (or the principal of a Lobbyist). A permitted gift must be reported in quarterly gift disclosure to (1) the City Clerk, the Clerk of the Board of County Commissioners (in satisfaction of the County Ethics Code) by the Local Official; and (2) the Florida Commission on Ethics (in satisfaction of the State Ethics Code) by the Reporting Individual. 4 A gift in excess of a $100.00 value may not be accepted from a Political Committee or from a Lobbyist (or the principal of a Lobbyist) by a Local Public Official or Reporting Individual. A. County Ethics Code. (1) Provisions of the Code. The pertinent gift provisions of the County Ethics Code are provided by Subsection 2- 11.I(e), which states, in pertinent part, as follows: (e) Gifts (1) Definition. The term "gift" shall refer to the transfer of anything of economic value, whether in the form of money, service, loan, travel, entertainment, hospitality, item or promise, or in any other form, without adequate and lawful consideration. Food and beverages 3/ The terms "Lobbyist" and "Political Committee" are defmed on page 7 below. '/ For City Public Officials, filing with the City Clerk is sufficient for this purpose since the reference in Section 2- 11.1(e)(4) to the "Clerk of the Board of County Commissioners" is converted to the City Clerk by virtue of the incorporation by reference language used in Section 2-11.1(a). However, in an abundance of caution, filing with both Clerks is recommended. 3 consumed at a single sitting or meal shall be considered a single gift, and the value of the food and beverage provided at that sitting or meal shall be considered the value of the gift. (2) Exceptions. The provisions of subsection (e)(1) shall not apply to; (a) Political contributions specifically authorized by State law; (b) Gifts from relatives or members of one's household; (c) Awards for professional or civic achievement; (d) Materials such as books, reports, periodicals or pamphlets which are solely informational or of an advertising nature; (e) Gifts solicited by [City] employees or departmental personnel on behalf of the [City] in conducting its official business; (f) Gifts solicited by [Councilmembers] on behalf of the [City] in the performance of their official duties for use solely by the [City] in conducting its official business; (g) Gifts solicited by Commissioners on behalf of any nonprofit organization for use solely by that organization where neither the Commissioner nor his or her staff receives anv compensation as a result of the solicitation. As used in this subsection, a "nonprofit organization" shall mean anv entitv described in section 50l(c)(3) of the Internal Revenue Code (the "Code") that is tax exempt under section 50l(a) of the Code. As used in this subsection. "compensation" means any money, gift, favor, political contribution. thing of value or other financial benefit. (3) Prohibitions. A person described in subsection (b)(1)-(6) [County and municipal officials, including Councilmembers, officers, employees and board members] shall neither solicil nor demand any gift. It is also unlawful for any person or entity to offer, give or agree to give to any person included in the term defined in subsection (b)(1 )-(6) or for any person included in the term defined in subsection (b)(1 )-(6) [including Councilmembers, officers, employees and board members] to accept or agree to accept from another person or entity, any gift for or because of (a) an official public action taken or to be taken, or which could be taken; (b) a legal duty performed or to be performed, or which could be performed; or (c) a legal duty violated or to be violated, or which could be violated by any person included in the term defined in subsection (b)(l) [members of the Board of County Commissioners or members of City Council]. (4) Disclosure. Any person included in the term defined in subsection (b)(I)-(6) [including Councilmembers, officers, employees and board members] shall disclose as provided herein any gift, or series of gifts from anyone person or entity, having a value in excess of one hundred dollars ($100.00) T','fent'i five Dollars ($25.00). Said 4 disclosure shall be made by filing a copy of the disclosure form required by Chapter 112, Florida Statutes, for "local officers" with the Clerk of the Board of County Commissioners, simultaneously with the filing of the form with the Secretary of State. (emphasis added.) *** The underlined portions of the Subsection represent the revised language effective June 18, 2004. (2) Summary The gist of the County Ethics Code provisions applicable to the subject matter of gifts may be summarized as follows: 1. Local Officials are prohibited from soliciting or demanding any gift. 2. Local Officials are prohibited from accepting or agreeing to accept any gift because of or in exchange for the performance or non-performance of public duties. 3. Local Officials must disclose and report anv gift or series of gifts from anyone person or entity having a value in excess of one hundred dollars ($100.00), This County Ethics Code provision on gift disclosure would be satisfied by filing such disclosure with the City Clerk on a quarterly basis utilizing the State Quarterly Gift Disclosure form as provided by Section 112.3148, Fla. Stat. Please note, dual filing with the Clerk of the Board of County Commissioners is also recommended. B. State Ethics Code The State Ethics Code sets forth a far more complex set of gift restrictions than that provided by the County Ethics Code. Pursuant to Section 112.313(2), Fla. Stat., all public officers, candidates and employees are prohibited from soliciting or accepting anything of value, such as a gift, loan, reward, service, favor or promise of future employment that is based on any understanding that their vote, official action or judgment would be influenced by such gift. Additionally, Section 112.313(4) Fla. Stat., prohibits any public officer or employee (or his or her spouse or minor child) from accepting anything of value when such officer or employee knows or should know that it was given to influence action in which the officer or employee is expected to participate in his or her official capacity. Beyond the basic prohibitions set forth in Section 112.313(2), and Section 112.313(4), Fla. Stat., a more complex set of restrictions is established by Section 112.3148, Fla. Stat., "Reporting and prohibited receipt of gifts. . ." (the "State Gift Law"). 5 (1) Provisions of State Gift Law The core requirements of Section 112.3148, Fla. Stat., as applicable to Local Officials and Reporting Individuals, are provided in subsections (3), (4), and (8)(a): (3) A reportinl! individual or procurement employee is prohibited from solicitinl! any l!ift from a political committee or committee of continuous existence, as defined in s. 106.011, or from a lobbyist who lobbies the reporting individual's or procurement employee's agency, or the partner, firm, employer, or principal of such lobbyist, where such l!ift is for the personal benefit of the reportinl! individual or procurement employee, another reporting individual or procurement employee, or any member of the immediate family of a reporting individual or procurement employee. (4) A reportinl! individual or procurement employee or any other person on his or her behalf is prohibited from knowinl!ly acceptinl!. direct! y or indirect! y a l!ift from a political committee or committee of continuous existence, as defined in s. 106.011, or from a lobbyist who lobbies the reportinl! individual's or procurement employee's al!ency. or directly or indirectly on behalf of the partner. firm. employer. or principal of a lobbyist. if he or she knows or reasonably believes that the l!ift has a value in excess of $100; however, such a gift may be accepted by such person on behalf of a governmental entity or a charitable organization. If the gift is accepted on behalf of a governmental entity or charitable organization, the person receiving the gift shall not maintain custody of the gift for any period of time beyond that reasonably necessary to arrange for the transfer of custody and ownership of the gift. (8)(a) Each reportinl! individual or procurement employee shall fIle a statement with the Florida Commission on Ethics on the last day of each calendar quarter, for the previous calendar quarter, containinl! a list of l!ifts which he or she believes to be in excess of $100 in value. if any, accepted by him or her, for which compensation was not provided by the donee to the donor within ninety (90) days of receipt of the gift to reduce the value to $100 or less, except the following: 1. Gifts from relatives. 6 2. Gifts prohibited by subsection (4) or s.112.313(4).5 3. Gifts otherwise required to be disclosed by this section. [emphasis added] It should be noted that the term "lobbyist" is broadly defined in Section 112.3148(2)(b), Fla. Stat., to include any person who for compensation seeks, or sought during the preceding twelve (12) months, to influence the governmental decision-making of the City Councilor the City, and any person who is required by the City to register as a lobbyist. As noted above, the term "Reporting Individual" includes Councilmembers and all other persons required to file annual financial disclosure under Chapter 112, Florida Statutes. (2) Summary of State Law Restrictions The above-referenced gift restrictions provided by the State Gift Law may be summarized as follows: 1. A Reporting Individual is prohibited from soliciting or accepting anything of value upon the basis of any understanding that his or her vote, official action, or judgment will be influenced by such gift. Section 112.313(2), Fla. Stat. 2. A Reporting Individual is prohibited from soliciting any gift from a political committee or committee of continuous existence ("Political Committee"), or from a lobbyist who lobbies the City (the "Lobbyist"), if such gift is for the personal benefit of the Reporting Individual, another Reporting Individual or procurement employee, or any member of the immediate family of any Reporting Individual or procurement employee. Section 112.3148(3), Fla. Stat. 3. A Reporting Individual is prohibited from knowinl!:ly acceptinl!:, directly or indirectly, a l!:ift from a Political Committee or from a Lobbyist who lobbies the City, if he or she (the Reporting Individual) knows or reasonably believes that the l!:ift has a value in excess of $100.6 Section 112.3148(4), Fla. Stat. 4. Reporting Individuals must file a statement with the Florida Commission on Ethics on the last day of each calendar quarter, for the previous calendar quarter, containing a list of gifts required to be disclosed which he or she believes to be in excess of $100 in value, if any, accepted by such Reporting Individual. See Section 112.3148(8)(a), Fla. Stat. For example, gifts required to be disclosed which are believed to be of a value in excess of $1 00 would be required to be reported by the Reporting Individual by June 30, 2005 for the quarterly period of January 1 through March 31,2005. '; This exception providing that illegal gifts are not required to be reported by the Reporting Individual, is apparently in recognition of the privilege against self incrimination. 6; However, a gift may be accepted by the Councilmember or other Reporting Individual on behalf of the City entity. If so accepted, the person receiving the gift shall not maintain custody of the gift for any period of time beyond that reasonably necessary to arrange for custody and ownership of the gift by the City. Section 112.3148(4), Fla. Stat. 7 (3) Gift Valuation Section 112.3148(7), Fla. Stat., provides criteria for determining the value of a gift, as follows: (7)(a) The value of a gift provided to a reporting individual or procurement employee shall be determined using actual cost to the donor, less taxes and gratuities, except as otherwise provided in this subsection, and, with respect to personal services provided by the donor, the reasonable and customary charge regularly charged for such service in the community in which the service is provided shall be used. If additional expenses are required as a condition precedent to eligibility of the donor to purchase or provide a gift and such expenses are primarily for the benefit of the donor or are of a charitable nature, such expenses shall not be included in determining the value of the gift. (b) Compensation provided by the donee to the donor, if provided within 90 days after receipt of the gift, shall be deducted from the value of the gift in determining the value of the gift. (c) If the actual gift value attributable to individual participants at an event cannot be determined, the total costs shall be prorated among all invited persons, whether or not they are reporting individuals or procurement employees. (d) Transportation shall be valued on a round-trip basis unless only one-way transportation is provided. Round-trip transportation expenses shall be considered a single gift. Transportation provided in a private conveyance shall be given the same value as transportation provided in a comparable commercial conveyance. (e) Lodging provided on consecutive days shall be considered a single gift. Lodging in a private residence shall be valued at the per diem rate provided in s.112.061(6)(a)1. less the meal allowance rate provided in s.112.061(6)(b). (f) Food and beverages which are not consumed at a single sitting or meal and which are provided on the same calendar day shall be considered a single gift, and the total value of all food and beverages provided on that date shall be considered the value of the gift. Food and beverage consumed at a single sitting or meal shall be considered a single gift and the value of the food and beverage provided at that sitting or meal shall be considered the value of the gift. 8 (g) Membership dues paid to the same organization during any 12- month period shall be considered a single gift. (h) Entrance fees, admission fees, or tickets shall be valued on the face value of the ticket or fee, or on a daily or per event basis, whichever is greater. (i) Except as otherwise specified in this section, a gift shall be valued on a per occurrence basis. (j) The value of a gift provided to several individuals mav be attributed on a pro rata basis among all of the individuals. If the gift is food, beverage, entertainment, or similar items, provided at a function for more than ten people, the value of the gift to each individual shall be the total value of the items provided divided by the number of persons invited to the function, unless the items are purchased on a per person basis, in which case the value of the gift to each person is the per person cost. (k) The value of a gift of an admission ticket shall not include that portion of the cost which represents a charitable contribution, if the gift is provided by the charitable organization. (Emphasis added.) Some of these criteria have been addressed by provisions of the Florida Administrative Code and interpreted by opinions of the Florida Commission on Ethics. Additionally, it should be noted that the value of a gift may be reduced by the donee by paying compensation to the donor. See Section 112.3148(8)(a), Fla. Stat. (4) Definition of Gift To guide a Reporting Individual's actions under the gift restrictions set forth in Section 112.3148, Fla. Stat., it is essential to focus on the definition of gift as set forth in Section 112.312(12), Fla. Stat., which provides as follows: (12)(a) "Gift," for purposes of ethics in government and financial disclosure required by law, means that which is accepted by a donee or by another on the donee's behalf, or that which is paid or given to another for or on behalf of a donee, directly, indirectly, or in trust for the donee's benefit or by any other means, for which equal or greater consideration is not given, including: 1. Real property. 9 2. The use of real property. 3. Tangible or intangible personal property. 4. The use of tangible or intangible personal property. 5. A preferential rate or terms on a debt, loan, goods, or services, which rate is below the customary rate and is not either a government rate available to all other similarly situated government employees or officials or a rate which is available to similarly situated members of the public by virtue of occupation, affiliation, age, religion, sex or national ongm. 6. Forgiveness of an indebtedness. 7. Transportation, other than that provided to a public officer or employee by an agency in relation to officially approved governmental business, lodging, or parking. 8. Food or beverage. 9. Membership dues. 10. Entrance fees, admission fees, or tickets to events, performances or facilities. 11. Plants, flowers, or floral arrangements. 12. Services provided by persons pursuant to a professional license or certificate. 13. Other personal services for which a fee is normally charged by the person providing the services. 14. Any other similar service or thing having an attributable value not already provided for in this section. (b) "Gift" does not include: 1. Salary, benefits, sefVlces, fees, commISSIons, gifts, or expenses associated primarily with the donee's employment, business, or service as an officer or director of a corporation or organization. 10 2. Contributions or expenditures reported pursuant to Chapter 106, campaign-related personal services provided without compensation by individuals volunteering their time, or any other contribution or expenditure by a political party. 3. An honorarium or an expense related to an honorarium event paid to a person or the person's spouse.7 4. An award, plaque, certificate, or similar personalized item given in recognition of the donee's public, civic, charitable, or professional service. 5. An honorary membership III a service or fraternal organization presented merely as a courtesy by such organization. 6. The use of a public facility or public property, made available by a governmental agency, for a public purpose. 7. Transportation provided to a public officer or employee by an agency in relation to officially approved govemmental business. 8. Gifts provided directly or indirectly by a state, regional, or national organization which promotes the exchange of ideas between, or the professional development of, governmental officials or employees, and whose membership is primarily composed of elected or appointed public officials or staff, to members of that organization or officials or staff of a governmental agency that is a member of that organization8 (5) Examples Consideration of examples of the application of the "gift" definition is helpful to an understanding of the interpretation of these provisions. 7/ Honorariums (paymenl made for a public officer's speech, lecture or writing) are govemed by Section 112.3149, Fla. Stat., which imposes restrictions, prohibitions and reporting requirements. 8/ Items 7. and 8. of Sec. 112.312(12)(b), which excludes certain items from the definition of "gift," were enacted effective January I, 1997. 11 Pursuant to Section 112.3148(4), Fla. Stat. and Section 112.312(12)(a)(8), Fla. Stat., it would generally be permissible for a Reporting Individual to simplv accept food, beverages or other gift, of a value in excess of $100.00, from any person, except from a Political Committee or a Lobbyist.9 If the food, beverage or other gift is from a Political Committee or Lobbyist it can not be accepted if the Reporting Individual knows or reasonably believes the value exceeds $100.00. Further, it would not be proper for such Reporting Individual to solicit such food, beverages or other gift from a Political Committee or a Lobbyist who lobbies the City, regardless of the value of the gift. since that is prohibited by Section 112.3148(3), Fla. Stat. Under Section 112.312(12)(a)(10), Fla. Stat., a Reporting Individual would be prohibited from accepting tickets to a show from a Political Committee, or from a Lobbyist who lobbies the City, if the Reporting Individual knows or reasonably believes that the gift has a value in excess of $100. However, a Reporting Individual could accept such gift from a person other than a Lobbvist or Political Committee. Such gift would then be subject to reporting and disclosure by the Reporting Individual. I 0 Pursuant to Section I 12.3148(5)(b), Fla. Stat., a Political Committee or Lobbyist who makes a gift having a value in excess of$25.00, but not in excess of$100.00, to a Reporting Individual, is required to file a quarterly gift disclosure report with the Commission on Ethics. That report describes the gift, its value and identifies the recipient. The donor is required to notifY the donee that the gift will be reported. This provision places the burden for reporting such gifts (given by Political Committees or Lobbyists) on the donor rather than the donee, under the State Ethics Code. Pursuant to Section 112.3148(4), Fla. Stat., a Reporting Individual could attend a catered luncheon hosted by a local law firm which lobbies the City for zoning approvals for a private property owner, so long as the value of the luncheon gift does not exceed $100.00.11 If the caterer charged the law firm $20.00 per person, the value of the gift for a Councilmember and his or her spouse would be $40.00. No gift disclosure would be required by the Reporting Individual; however, the law firm, as a lobbyist, would be required to file a quarterly gift disclosure report with the Commission on Ethics reporting the gift of $40.00. '; Please note that such permitted gift of food, beverages or other item must be reported by Councilmembers and other Reporting Individuals under the State Ethics Code and Countv Ethics Code. Naturally, the gift could not be accepted if prohibited by Section 112.313(2)(4), Fla. Stal., as discussed on Page 6, above. 10; Such report would be required under both the State Ethics Code and County Ethics Code ($100.00 reporting threshold). "; This restriction would also apply to a luncheon hosted by a private property owner who utilizes the services of the Lobbyist, since such private property owner would be the "principal of a lobbyist", within the scope of Section 112.3148(4), Fla. Stat. See page 6 above. 12 C. Potential Penalties and Conseauences. (1) State Ethics Code While there are no criminal penalties for violation of the State Ethics Code, unless such conduct also violates some other law providing such penalty, the non-criminal violation by a Reporting Individual of the gift solicitation or acceptance prohibitions and gift reporting requirements can result in one or more of the following penalties: Public officers: Impeachment; Removal from office; Suspension from office; Public censure and reprimand; Forfeiture of part of public salary or compensation; Civil penalty not to exceed $10,000; Restitution of any pecuniary benefits received because of the ethical violation committed. Emp10vees: Dismissal; Suspension; Demotion; Reduction or forfeiture of salary; Civil penalty; Restitution; Public censure and reprimand. Each of the above penalties is provided by Subsecti9ns 112.317(1)(a)-(b), Fla. Stat. (2) County Ethics Code Under the County Ethics Code, Subsection 2-11.1(aa), the potential punishment for a violation of the County Ethics Code provisions pertaining to the receipt and reporting of gifts, as required by the County Ethics Code consists of an admonition, public reprimand and/or fine from the Miami-Dade County Ethics Commission or if prosecuted by a State Attorney, a criminal penaltv of a fine not to exceed $500 or imprisonment in the County jail for not more than 30 days or by both such fme and imprisonment.12 Additionally, as of December 12,2004, the Ethics Commission may 12/ This penal sanction merits serious attention. Several years ago, the Miami-Dade State Attorney's office attempted to criminally prosecute members of the Coral Gables City Commission for alleged violation of the County gift reporting requirements. Although these charges were ultimately dismissed by the courts, much embarrassment and aggravation was suffered by members of the City Commission. 13 order restitution when the person or a third party has received a pecuniary benefit as a result of the person's violation. The text of the amendment is set forth in the following section. It is important to remember that a determination of compliance with both the State Ethics Code and County Ethics Code is required,u III. REVISIONS TO COUNTY ETHICS CODE Three changes have been made to the County Ethics Code which will impact the duties and responsibilities of municipal personnel subject to the County Ethics Code. First, as referenced above, Subsection 2-11.1(aa), County Ethics Code, was amended effective December 12, 2004. This revision allows the Ethics Commission to order restitution from a person found to have violated the Ethics Code. The revised Subsection 2.11-1(aa), County Ethics Code, reads as follows: 2-11.1(aa) Penalty. (1) Proceeding before Ethics Commission. A finding by the Ethics Commission that a person has violated this section shall subject said person to an admonition or public reprimand and/or a fine of two hundred fifty dollars ($250.00) for the first such violation and five hundred dollars ($500.00) for each subsequent violation. >>The Ethics Commission mav also order the person to pay restitution when the person or a third partv has received a pecuniary benefit as a result of the person's violation. The procedure for determining restitution shall be governed bv administrative order adopted bv the County Commission and rules of procedure promulgated bv the Ethics Commission.<< *** The underlined portions of the subsection represent the revised language effective December 12,2004. Second, Subsection 2-11.1(e), County Ethics Code, was amended effective June 18,2004. This revision allows Commissioners to solicit gifts on behalf of nonprofit organizations for use solely by that organization, and increases the threshold value of gifts subject to disclosure from $25.00 to $100.00. The language of the revision is set forth above on pages 4-5. This revision eliminates the discrepancy between state and county law regarding the gift disclosure threshold. Finally, Subsection 2-11.1(w), County Ethics Code, was amended effective March 26, 2004. This revision prohibits the Mayor and Commissioners, department personnel and employees from directly or indirectly accepting any travel expenses from county vendors. The provision does not apply to travel expenses paid by other governmental entities or by organizations of which the County is a member if the travel is related to that membership. The revised Subsection 2.11-1(w), County Ethics Code, reads as follows: 13 I Compliance with any additional municipal ethics ordinance is also necessary. 14 2.1l-1(w) Prohibition on acceptance of travel expenses from county vendors. Notwithstanding any other provision of this section, no person included in subsections (b)(1 )(Mayor and Commissioners), (b)( 5)( departmental personnel) or (b)(6)(employees) shall accept, directly or indirectly, any travel expenses including, but not limited to, transportation, lodging, meals, registration fees and incidentals from any county contractor, vendor, service provider, bidder or proposer. The Board of County Commissioners may waive the requirements of this subsection by a majority vote of the Commission. The provisions of this subsection (w) shall not apply to travel expenses paid by other governmental entities or by organizations of which the County is a member if the travel is related to that membership. As written, this revision imposes a heavy burden upon applicable municipal personnel. It should be noted that Rule 5.06, Section 2.1, Rules of Procedure of County Commission, Miami- Dade County Code, requires the County Manager to mail or email a copy to each city clerk, city attorney, city manager and the Executive Director of the Miami-Dade League of Cities, Inc., of any proposed ordinance that directly affect the jurisdiction or duties of municipalities or their officers, or any proposed ordinances that may have a direct fiscal impact upon municipal governments in Miami-Dade County. To the best of our knowledge, this procedure was not followed by the Miami- Dade County Manager for this revision. Although this revision may not have been properly adopted, it is recommended that this revision be followed. Please note Section 2-11.39.2, Miami-Dade County Code, as interpreted by staff of the County Ethics Commission, allows municipalities to exempt members of designated advisory boards from the provisions of the County Code. Section 2-11.39.2, County Ethics Code, states as follows: Notwithstanding any other proVISIOn of the Code or of any resolution, the Board of County Commissioners may by resolution determine that the members of designated county boards are exempt from the provisions of the Miami-Dade County Conflict of Interest Code of Ethics Ordinance (Section 2-11.1 of the Code) as the same may be amended from time to time. Resolutions adopted under the authority of this section shall be effective for 2003 and thereafter. Due to the impact of this revision, municipalities may deem it prudent to utilize Section 2-11.39.2, Miami-Dade County Code, and exempt by resolution the members of designated advisory boards from the provisions of the County Ethics Code. 15 IV. CONCLUSION As can be seen from the above analysis and examples, the complexity of the applicable restrictions makes it very wise to seek legal advice and guidance on each specific instance which arises under the State or County gift laws. It is intended that this letter set forth general guidelines and promote awareness of restrictions, while encouraging the seeking of advice, from time to time, as necessary. Please advise if there are any questions on the matters addressed above or if questions arise in the future. DMW/cmb U:\Tara GouldlMemos. 2004\City Commission from DMW re limits on gifts to public officials. doc 16 \ . The Conflict of Interest and Code of Ethics Ordinance (AS AMENDED THROUGH DECEMBER 2004) Sec. 2-11.1. Conflict ofInterest and Code of Ethics Ordinance. (a) Designation. This section shall be designated and known as the "Miami-Dade County Conflict of Interest and Code of Ethics Ordinance." This section shall be applicable to all County personnel as defined herein, and shall also constitute a minimum standard of ethical conduct and behavior for all municipal officials and officers, autonomous personnel, quasi-judicial personnel, advisory personnel, departmental personnel and employees of municipalities in the County insofar as their individual relationships with their own municipal governments are concerned. References in the section to County personnel shall therefore be applicable to municipal personnel who serve in comparable capacities to the County personnel referred to. (Ord. No. 72-82, ~ 1, 11-21-72; Ord. No. 73-27, ~ 1,3-20-73) (b) Definitions. For the purposes of this section the following definitions shall be effective: (I) The term "Commissioners" shall refer to the Mayor and the members of the Board of County Commissioners as duly constituted from time to time. (2) The term "autonomous personnel" shall refer to the members of semi-autonomous authorities, boards, and agencies as are entrusted with the day to day policy setting, operation and management of certain defined County functions or areas of responsibility, even though the ultimate responsibility for such functions or areas rests with the Board of County Commissioners. (3) The term "quasi-judicial personnel" shall refer to the members of the Community Zoning Appeals Board and such other boards and agencies of the County as perform quasi-judicial functions. (4) The term "advisory personnel" shall refer to the members of those County advisory boards and agencies whose sole or primary responsibility is to recommend legislation or give advice to the Board of County Commissioners. (5) The term "departmental personnel" shall refer to the Manager, his department heads, the County Attorney and all Assistant County Attorneys. (6) The term "employees" shall refer to all other salaried personnel employed by the County. (7) The term "compensation" shall refer to any money, gift, favor, thing or value or financial benefit conferred in return for services rendered or to be rendered. (8) The term "controlling financial interest" shall refer to ownership, directly or indirectly, to ten (10) percent or more of the outstanding capital stock in any corporation or a direct or indirect interest often (10) percent or more in a firm, partnership, or other business entity. (9) The term "immediate family" shall refer to the spouse, parents and children of the person involved. (10) The term "transact any business" shall refer to the purchase or sale by the County of specific goods or services for a consideration. (Ord. No. 72-82, S 1, 11-21-72; Ord. No. 73-23, S 1,3-20-73; Ord. No. 86-24, S 3, 4-1-86) (11) The term "Ethics Commission" shall refer to the Miami-Dade County Commission on Ethics and Public Trust. (c) Prohibition on transacting business within the County. (I) No person included in the terms defined in subsection (b)( 1) through (6) and in subsection (b )(9) shall enter into any contract or transact any business, except as provided in subsections (c)(2) through (c)(6) in which he or she or a member of his or her immediate family has a financial interest, direct or indirect, with Miami-Dade County or any person or agency acting for Miami-Dade County, and any such contract, agreement or business engagement entered in violation of this subsection shall render the transaction voidable. Willful violation of this subsection shall constitute malfeasance in office and shall effect forfeiture of office or position. (2) County employees' limited exclusion from prohibition on contracting with the county. Notwithstanding any provision to the contrary herein, subsections (c) and (d) shall not be construed to prevent any employee as defined by subsection (b)( 6) [excluding departmental personnel as defined by subsection (b)(5)] or his or her immediate family as defined by subsection (b )(9) from entering into any contract, individually or through a firm, corporation, partnership or business entity in which the employee or any member of his or her immediate family has a controlling financial interest, with Miami-Dade County or any person or agency acting for Miami-Dade County, as long as (I) entering into the contract would not interfere with the full and faithful discharge by the employee of his or her duties to the County, (2) the employee has not participated in determining the subject contract requirements or awarding the contract, and (3) the employee's job responsibilities and job description will not require him or her to be involved with the contract in any way, including, but not limited to, its enforcement, oversight, administration, amendment, extension, termination or forbearance. However, this limited exclusion shall not be construed to authorize an employee or his or her immediate family member to enter into a contract with Miami-Dade County or any person or agency acting for Miami-Dade County, if the employee works in the county department which will enforce, oversee or administer the subject contract. (3) Limited exclusion from prohibition on autonomous personnel, advisory personnel and quasi-judicial personnel contracting with county. Notwithstanding any provision to the contrary herein, subsections (c) and (d) shall not be construed to prohibit any person defined in subsection (b)(2), (b)(3) and (b)(4) from entering into any contract, individually or through a firm, corporation, partnership or business entity in which the board member or any member of his or her immediate family has a controlling financial interest, with Miami-Dade County or any person or agency acting for Miami-Dade County. However, any person defined in subsection (b)(2), (b)(3) and (b)(4) is prohibited from contracting with any agency or department of Miami-Dade County subject to the regulation, oversight, management, policy-setting or quasi-judicial authority of the board of which the person is a member. (4) Any person defmed in subsections (b )(2) through (b)( 4) and subsection (b)( 6) shall seek a conflict of interest opinion from the Miami-Dade County Commission on Ethics and Public Trust ("the Ethics Commission") prior to submittal of a bid, response, or application of any type to contract with the County by the person or his or her immediate family. A request for a conflict of interest opinion shall be made in writing and shall set forth and include all pertinent facts and relevant documents. If the Ethics Commission finds that the requirements of this section pertaining to exclusions for persons defined in subsections (b)(2) through (b)(4) and subsection (b)(6) are not met and that the proposed transaction would create a conflict of interest, the person defined in subsections (b )(2), (b)(3), (b)(4) or (b)(6) may request a waiver from the Board of County Commissioners within ten (10) days of the Ethics Commission opinion by filing a notice of appeal to the Ethics Commission. The Ethics Commission shall forward the notice of appeal and its opinion and any pertinent documents to the Clerk of the Board of County Commissioners (the "Clerk") forthwith. The Clerk shall place the request on the commission agenda for consideration by the Board. The Board of County Commissioners may grant a waiver upon an affirmative vote of two-thirds ( 2/3) of the entire Board of County Commissioners, after public hearing, if it finds that the requirements of this ordinance pertaining to the exclusion for a County employee from the Code have been met and that the proposed transaction will be in the best interest of the County. The Board of County Commissioners may, as provided in subsection (c)(6), grant a waiver to any person defined in subsection (b )(2) through (b)( 4) regarding a proposed transaction. Such findings shall be included in the minutes of the board. This subsection shall be applicable only to proposed transactions, and the Board may in no case ratify a transaction entered into in violation of this subsection. If the affected person or his or her immediate family member chooses to respond to a solicitation to contract with the County, such person shall file with the Clerk a statement in a form satisfactory to the Clerk disclosing the person's interest or the interest of his or her immediate family in the proposed contract and the nature of the intended contract at the same time as or before submitting a bid, response, or application of any type to contract with the County. Along with the disclosure form, the affected person shall file with the Clerk a copy of his or her request for an Ethics Commission opinion and any opinion or waiver from the Board. Also, a copy of the request for a conflict of interest opinion from the Ethics Commission and any opinion or waiver must be submitted with the response to the solicitation to contract with the County. Notwithstanding any provision herein to the contrary, the County and any person or agency acting for Miami-Dade County shall not award a contract to any person defined in subsections (b)(2) through (b)(4) and subsection (b)(6) or his or her immediate family individually or through a firm, corporation, partnership or business entity in which the person or any member of his or her immediate family has a controlling financial interest, unless the Ethics Commission has rendered an opinion that entering the contract would not be a conflict of interest or the Board waives the conflict in accordance with the provisions of this ordinance. The County Manager is directed to include language in all solicitations for county contracts advising persons defined in subsections (b )(2) through (b)( 4) and subsection (b)(6) of the applicable conflict of interest code provisions, the provisions of this ordinance, including the requirement to obtain an Ethics Commission opinion and make disclosure, and the right to seek a legal opinion from the State of Florida Ethics Commission regarding the applicability of state law conflict of interest provisions. (5) Nothing herein shall prohibit or make illegal (I) the payment of taxes, special assessments or fees for services provided by County government; (2) the purchase of bonds, anticipation notes or other securities that may be issued by the County through underwriters or directly from time to time; (3) the participation of the persons included in the terms defined in subsection (b)( I) through (6), except for employees of the general services administration and their "immediate family" as defined in (b )(9), in the public auction process utilized by the County for the disposal of surplus motor vehicles; (4) the purchase of surplus personal property, pursuant to administrative order, by persons defined in subsection (b)(I) through (6) and (9); (5) an application for direct assistance from the Miami-Dade County Department of Housing and Urban Development or an application to participate in a program administered by the Department of Special Housing has been submitted by an applicant who is a County person as defined in subsection (b) and who would but for this section be eligible for such assistance from said department; provided, however, that the exception provided in this paragraph shall not extend to an employee of the Miami-Dade County Department of Housing and Urban Development or the Department of Special Housing who participates in the administration of said programs; or (6) and application to participate in a single-family mortgage loan program sponsored by the Housing Finance Authority of Miami-Dade County, has been submitted by a County person as defined in subsection (b), and would but for this section be eligible for participation in said program; provided, however, that the exception provided in this paragraph shall not extend to an employee of the Miami- Dade County Finance Department who participates in the administration of said single- family mortgage loan program. (6) Extension of waiver to county commissioners, autonomous personnel, quasi-judicial personnel, and advisory personnel. The requirements of this subsection may be waived for a particular transaction only by affirmative vote of two-thirds of the entire Board of County Commissioners, after public hearing. Such waiver may be affected only after findings by two-thirds of the entire Board that: (I) An open-to-all sealed competitive bid has been submitted by a County person as defined in subsection (b)(2), (3) and (4), or (2) The bid has been submitted by a person or firm offering services within the scope of practice of architecture, professional engineering, or registered land surveying as defined by the laws of the State of Florida and pursuant to the provisions of the Consultants' Competitive Negotiation Act, and when the bid has been submitted by a County person defined in subsection (b)(2), (3) and (4), or (3) The property or services to be involved in the proposed transaction are unique and the County cannot avail itself of such property or services without entering a transaction which would violate this subsection but for waiver of its requirements, or (4) That the property or services to be involved in the proposed transaction are being offered to the County at a cost of no more than 80 percent of fair market value based on a certified appraisal paid for by the provider, and (5) That the proposed transaction will be to the best interest of the County. Such findings shall be spread on the minutes of the Board. This subsection shall be applicable only to prospective transactions, and the Board may in no case ratify a transaction entered in violation of this subsection. Provisions cumulative. This subsection shall be taken to be cumulative and shall not be construed to amend or repeal any other law pertaining to the same subject matter. (Ord. No. 72-82, ill, 11-21-72; Ord. No. 73-24, ill, 3-20-73; Ord. No. 73-45, ill, 5-1-73; Ord. No. 75-91, ill, 11-4-75; Ord. No. 75-119, ill, 12-16-75; Ord. No. 79-85, ill, 10-16-79; Ord. No. 80-33, ill, 5-6-80; Ord. No. 85-84, ill, 10-1-85; Ord. No. 85-98, ill, 11-5-85; Ord. No. 87-58, ill, 9-1-87; Ord. No. 88-102, ill, 10-18-88; Ord. No. 91-113, ill, 10-1- 91; Ord. No. 00-1, ill, 1-13-00; Ord. No. 00-151, ill, 11-28-00) (d) Further prohibition on transacting business with the County. No person included in the terms defined in subsections (b)(1) through (6) and in subsection (b)(9) shall enter into any contract or transact any business through a firm, corporation, partnership or business entity in which he or any member of his immediate family has a controlling financial interest, direct or indirect, with Miami-Dade County or any person or agency acting for Miami-Dade County, and any such contract, agreement or business engagement entered in violation of this subsection shall render the transaction voidable. The remaining provisions of subsection (c) will also be applicable to this subsection as though incorporated herein by recitation. Additionally, no person included in the term defined in subsection (b)(1) shall vote on or participate in any way in any matter presented to the Board of County Commissioners if said person has any ofthe following relationships with any of the persons or entities which would be or might be directly or indirectly affected by any action of the Board of County Commissioners: (i) officer, director, partner, of counsel, consultant, employee, fiduciary or beneficiary; or (ii) stockholder, bondholder, debtor, or creditor, if in any instance the transaction or matter would affect the person defined in subsection (b)( 1) in a manner distinct from the manner in which it would affect the public generally. Any person included in the term defined in subsection (b)(1) who has any of the above relationships or who would or might, directly or indirectly, profit or be enhanced by the action of the Board of County Commissioners shall absent himself or herself from the Commission meeting during the discussion of the subject item and shall not vote on or participate in any way in said matter. (Ord. No. 72-82, ill, 11-21-72; Ord. No. 73-45, il 2,5-1-73; Ord. No. 86-11, ill, 2-18-86; Ord. No. 86-24, ill, 4-1-86) (e) Gifts. (I) Definition. The term "gift" shall refer to the transfer of anything of economic value, whether in the form of money, service, loan, travel, entertainment, hospitality, item or promise, or in any other form, without adequate and lawful consideration. Food and beverages consumed at a single sitting or meal shall be considered a single gift, and the value of the food and beverage provided at that sitting or meal shall be considered the value ofthe gift. (2) Exceptions. The provisions of subsection (e)(l) shall not apply to: a. Political contributions specifically authorized by State law; b. Gifts from relatives or members of one's household; c. A wards for professional or civic achievement; d. Material such as books, reports, periodicals or pamphlets which are solely informational or of an advertising nature. e. Gifts solicited by County employees or departmental personnel on behalf of the County in the performance of their official duties for use solely by the County in conducting its official business. f. Gifts solicited by Commissioners on behalf of the County in the performance of their official duties for use solely by the County in conducting its official business. g. Gifts solicited by Commissioners on behalf of any nonprofit organization for use solely by that organization where neither the Commissioner nor his or her staff receives any compensation as a result of the solicitation. As used in this subsection, a "nonprofit organization" shall mean any entity described in section 501(c)(3) ofthe Internal Revenue Code (the "Code") that is tax exempt under section 501(a) of the Code. As used in this subsection, "compensation" means any money, gift, favor, political contribution, thing of value or other financial benefit. (3) Prohibitions. A person described in subsection (b)(l) through (6) shall neither solicit nor demand any gift. It is also unlawful for any person or entity to offer, give or agree to give to any person included in the term defined in subsection (b)(I) through (6) or for any person included in the term defined in subsection (b)(1) through (6) to accept or agree to accept from another person or entity, any gift for or because of: a. An official public action taken, or to be taken, or which could be taken; b. A legal duty performed or to be performed, or which could be performed; or c. A legal duty violated or to be violated, or which could be violated by any person included in the term defined in subsection (b)(1). (4) Disclosure. Any person included in the term defined in subsection (b)(1) through (6) shall disclose as provided herein any gift, or series of gifts from anyone person or entity, having a value in excess of one-hundred dollars ($100.00). Said disclosure shall be made by filing a copy of the disclosure form required by Chapter 112, Florida Statutes, for "local officers" with the Clerk of the Board of County Commissioner simultaneously with the filing of the form with the Secretary of State. (Ord. No. 78-82, ~ 1, 11-21-72; Ord. No. 86-25, ~ 1,4-1-86; Ord. No. 87-70, ~ 1, 10-20-87; Ord. No. 91-62, ~ 1,6-4-91; Ord. No. 99-124, ~ 1,2-11.1; Ord. No. 99-145, ~ I, 10-19-99) (t) Compulsory disclosure by employees offirms doing business with the County. Should any person included in the terms defined in subsections (b)(I) through (6) be employed by a corporation, firm, partnership or business entity in which he does not have a controlling financial interest, either himself or through a member of his immediate family, and should the said corporation, firm, partnership or business entity have substantial business commitments to or from the County or any County agency, or be subject to direct regulation by the County or a County agency, then said person shall file a sworn statement disclosing such employment and interest with the Clerk of the Circuit Court in and for Miami-Dade County. (Ord. No. 72-82, ~ 1, 11-21-72) (g) Exploitation of official position prohibited. No person included in the terms defined in subsection (b)( I) through (6) shall use or attempt to use his official position to secure special privileges or exemptions for himself or others except as may be specifically permitted by other ordinances and resolutions previously ordained or adopted or hereafter to be ordained or adopted by the Board of County Commissioners. (Ord. No. 72-82, ~ 1, 11-21-72) (h) Prohibition on use of confidential information. No person included in the terms defmed in subsection (b)(1) through (6) shall accept employment or engage in any business or professional activity which he might reasonably expect would require or induce him to disclose confidential information acquired by him by reason of his official position, nor shall he in fact ever disclose confidential information garnered or gained through his official position with the County, nor shall he ever use such information, directly or indirectly, for his personal gain or benefit. (Ord. No. 72-82, ~ 1, 11-21-72) (i) Financial disclosure. (1) All persons and firms included within subsections (a) and (b)(2), (3) and (4) of this section shall file, no later than 12:00 noon of July 1st of each year including the July 1st following the last year that person is in office or held such employment, one (I) of the following: a. A copy of that person's or firm's current federal income tax return; or b. A current certified financial statement on a form of the type approved for use by State or national banks in Florida listing all assets and liabilities having a value in excess of one thousand dollars ($1,000.00) and a short description of each; or c. An itemized source of income statement, under oath and on a form approved by the County for said purpose. Compliance with the financial disclosure provisions of Chapter 112 (Part III), Florida Statutes, as amended, or with the provisions of Article II, Section 8 of the Florida Constitution, as amended by the voters on November 2, 1976, and any general laws promulgated thereunder, shall constitute compliance with this section. (2) County and municipal personnel. The following County personnel shall comply with the filing requirements of subsection (i)(1) above: The Mayor and members of the Board of County Commissioners; County Attorney and Assistant County Attorneys; County Manager; Assistant County Manager(s); Special Assistant(s) to the County Manager; heads or directors of County departments and their assistant or deputy department heads; employees of the Miami-Dade Police with the rank of captain, major and chief; Building and Zoning Inspectors. References herein to specified County personnel and Boards shall be applicable to municipal personnel and Boards that serve in comparable capacities to the County personnel and Boards referred to. (3) Candidates for County and municipal office. All candidates for County and municipal elective office shall comply with the filing requirements of subsection (i)(1) above at the same time that candidate files qualifying papers. (4) Consultants. All persons or firms providing professional services as defined by Section 2-10.4(1)(a) and (b) of the Code of Miami-Dade County, to Miami-Dade County or any municipalities, their agencies, or instrumentalities, shall comply with the filing requirements of subsection (i)(1) above within ninety (90) days of the effective date hereof. All persons or firms subsequent to the effective date of this section, which engage in competitive negotiation with Miami-Dade County or any of its municipalities, their agencies or instrumentalities under and pursuant to Section 2-10.4 of the Code of Miami- Dade County shall comply with the reporting requirements of subsection (i)(1) of this section within thirty (30) days of execution of a contract arising out of said competitive negotiations and prior to any payments from said County, municipalities or other agencies or instrumentalities. Failure to comply with the terms hereof by such persons or firms shall render existing contracts voidable and shall automatically void any contracts negotiated and executed subsequent to the effective date of this section where the required information is not furnished within thirty (30) days of the execution of said contract as noted herein. (5) Reports; filing. All documents required to be filed hereunder by County persons or consultants shall be filed with the supervisor of elections. Documents required to be filed hereunder by municipal persons or consultants shall be filed with the municipal Clerk of that entity. (6) Public disclosure. All documents filed pursuant to this subsection shall constitute public records within the meaning of Chapter 119, Florida Statutes. (7) Construction. The construction of this subsection shall be considered as supplemental to and not in substitution of any requirements of Chapter 112, Florida Statutes, or any rules and regulations promulgated thereunder. (Ord. No. 77-13, ~ 1,3-1-77; Ord. No. 83- 18, ~ 1,4-19-83; Ord. No. 84-39, ~ 1,5-15-84) (j) Conflicting employment prohibited. No person included in the terms defined in subsections (b)( 1) through (6) shall accept other employment which would impair his independence of judgment in the performance of his public duties. (Ord. No. 72-82, ~ I, 11-21-72; Ord. No. 77-13, ~ 2, 3-1-77) (k) Prohibition on outside employment. (1) No person included in the terms defined in subsections (b)( 5) [departmental personnel] and (6) [employees] shall receive any compensation for his or her services as an officer or employee of the County, from any source other than the County, except as may be permitted by Section 2-11 of this Code of Ordinances. (2) All full-time County and municipal employees engaged in any outside employment for any person, firm, corporation or entity other than Miami-Dade County, or the respective municipality, or any of their agencies or instrumentalities, shall file, under oath, an annual report indicating the source of the outside employment, the nature of the work being done pursuant to same and any amount or types of money or other consideration received by the employee from said outside employment. Said County employee's reports shall be filed with the supervisor of elections no later than 12:00 noon on July 1 st of each year, including the July 1 st following the last year that person held such employment. Municipal employee reports shall be filed with the Clerk of their respective municipalities. Said reports shall be available at a reasonable time and place for inspection by the public. The County Manager or any city Manager may require monthly reports from individual employees or groups of employees for good cause. (Ord. No. 72-82, ~ 1, 11-21-72; Ord. No. 77-13, ~ 3,3-1-77; Ord. No. 77-79, ~ 1, 1-11-77; Ord. No. 77-87, ~ 1, 12-6-77; Ord. No. 83-18, ~ 2, 4-19-83; Ord. No. 84-39, S 2, 5-15-84) (I) Prohibited investments. No person included in the terms defined in subsections (b)(I) through (6) shall have personal investments in any enterprise, either himself or through a member of his immediately family, which will create a substantial conflict between his private interests and the public interest. (Ord. No. 72-82, ~ 1, 11-21-72; Ord. No. 77-13, S 4,3-1-77) (m) Certain appearances and payment prohibited. (1) No person included in the terms defined in subsections (b)(1), (5) and (6) [commissioners, departmental personnel and employees] shall appear before any County Board or agency and make a presentation on behalf of a third person with respect to any license, contract, certificate, ruling, decision, opinion, rate schedule, franchise, or other benefit sought by the third person. Nor shall such person receive compensation, directly or indirectly or in any form, for services rendered to a third person, who has applied for or is seeking some benefit from the County or a County agency, in connection with the particular benefit sought by the third person. Nor shall such person appear in any court or before any administrative tribunal as counselor legal advisor to a part who seeks legal relief from the County or a County agency through the suit in question. (2) No person included in the terms defined in subsections (b )(2), (3) and (4) [autonomous personnel, quasi-judicial personnel, and advisory personnel] shall appear before the County board or agency on which he or she serves, either directly or through an associate, and make a presentation on behalf of a third person with respect to any license, contract, certificate, ruling, decision, opinion, rate schedule, franchise, or other benefit sought by the third person. Nor shall such person receive compensation, directly or indirectly or in any form, for services rendered to a third party, who has applied for or is seeking some benefit from the County board or agency on which such person serves, in connection with the particular benefit by the third party. Nor shall such person appear in any court or before any administrative tribunal as counsel or legal advisor to a third party who seeks legal relief from the County board or agency on which such person serves through the suit in question. However, this section shall not prohibit an architect serving without compensation on the Miami-Dade County Board of Energy Regulation or on any architectural Board, whose sole function is to pass on the aesthetics of plans submitted, from submitting plans on behalf of a client so long as such member makes known his representation of the applicant and disqualifies himself from speaking or voting or otherwise participating on such application. (Ord. No. 72-82, S 1, 11-21-72; Ord. No. 73- 25, S 1,3-20-73; Ord. No. 73-51, S 1,5-15-73; Ord. No. 77-13, S 4, 3-1-77; Ord. No. 79- 39, S 1,6-19-79) (n) Actions prohibited when financial interests involved. No person included in the terms defined in subsections (b)(1) through (6) shall participate in any official action directly or indirectly affecting a business in which he or any member of his immediate family has a financial interest. A financial interest is defined as a special financial interest, direct or indirect, as that term is used in Section 4.03 of the County's Charter; or as a financial interest as defined in Section 769 of the Restatement of the Law of Torts as an investment or something in the nature of an investment. This section shall not prohibit any official, officer, employee or person from taking official action (I) to promote tourism or downtown development or redevelopment within the County or any portion thereof, or (2) to authorize the expenditure of public funds for promoting tourism or downtown development or redevelopment, so long as no such authorized public funds are to be paid to such person or a member of his immediately family or any business in which he or any member of his immediate family has a financial interest. (Ord. No. 72-82, S 1, 11-21-72; Ord. No. 73-50, S 1,5-15-73; Ord. No. 75-76, S 1,9-17-75; Ord. No. 77-13, S 4, 3-1-77) (0) Acquiring financial interests. No person included in the terms defined in subsections (b)( I) through (6) shall acquire a financial interest in a project, business entity or property at a time when he believes or has reason to believe that the said financial interest will be directly affected by his official actions or by official actions by the County or County agency of which he is an official, officer or employee. (Ord. No. 72-82, S 1, 11-21-72; Ord. No. 77-13, S 4, 3-1-77) (p) Recommending professional services. No person included in the terms defined in subsections (b)( 1) through (6) may recommend the services of any lawyer or law firm, architect or architectural firm, public relations firm, or any other person or firm, professional or otherwise, to assist in any transaction involving the County or any of its agencies, provided that such recommendation may properly be made when required to be made by the duties of office and in advance at a public meeting attended by other County officials, officers or employees. (Ord. No. 72-82, ~ 1, 11-21-72; Ord. No. 77-13, ~ 4, 3-1- 77) (q) Continuing application after county service. (I) No person who has served as an elected county official, i.e., mayor, county commissioner, or a member of the staff of an elected county official, or as county manager, senior assistant to the county manager, department director, departmental persOlmel or employee shall, for a period of two (2) years after his or her county service or employment has ceased, lobby any county officer, departmental personnel or employee in connection with any judicial or other proceeding, application, RFP, RFQ, bid, request for ruling, or other determination, contract, claim, controversy, charge, accusation, arrest or other particular subject matter in which Miami-Dade County or one (I) of its agencies or instrumentalities is a party or has any interest whatever, whether direct or indirect. Additionally, no person who has served as a community council member shall, for a period of two (2) years after his or her county service or employment has ceased, lobby, with regard to any zoning or land use issue, any county officer, departmental personnel or employee in connection with any judicial or other proceeding, application, request for ruling, or other determination, contract, claim, controversy, charge, accusation, arrest or other particular subject matter in which Miami-Dade County or one (1) of its agencies or instrumentalities is a party or has any interest whatever, whether direct or indirect. Nothing contained in this Subsection (q)(1) shall prohibit any individual included within the provisions of this subsection from submitting a routine administrative request or application to a county department or agency during the two- year period after his or her county service has ceased. (2) The provisions of this Subsection (q) shall not apply to officials, departmental personnel or employees who become employed by govemmenta1 entities, 501(c)(3) non- profit entities or educational institutions or entities, and who lobby on behalf of such entities in their official capacities. (3) The provisions of this section shall apply to all individuals as described in Subsection (q)( 1) who leave the county after the effective date of the ordinance from which this section derives. (4) Any former county officer, departmental personnel or employee who has left the county within two (2) years prior to the effective date of this ordinance and has entered into a lobbying contract prior to the effective date of this ordinance shall, for a period of two (2) years after his or her county service or employment has ceased, comply with Subsection (q) as it existed prior to the effective date of the ordinance from which this section derives and as modified by this Subsection (q)( 4) when lobbying pursuant to said contract. No former county officer, departmental personnel or employee who has left the county within two (2) years prior to the effective date of the ordinance from which this section derives shall for a period of two (2) years after his or her county service or employment has ceased enter into a lobbying contract to lobby any county officer, departmental personnel or employee in connection with any judicial or other proceeding, application, RFP, RFQ, bid, request for ruling, o~ other determination, contract, claim, controversy, charge, accusation, arrest or other particular subject matter in which Miami- Dade County or one (I) of its agencies or instrumentalities is a party or has a direct and substantial interest; and in which he or she participated directly or indirectly as an officer, departmental personnel or employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, during his or her county service or employment. As used herein, a person participated "directly" where he or she was substantially involved in the particular subject matter through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise, during his or her county service or employment. As used herein, a person participated "indirectly" where he or she knowingly participated in any way in the particular subject matter through decision, approval, disapproval, recommendation, the rendering of legal advice, investigation or otherwise, during his or her county service or employment. Former county officers, departmental personnel and employees who have left the county within two (2) years prior to the effective date of the ordinance from which this section derives shall execute an affidavit on a form prepared by the Office of the Inspector General prior to lobbying any county officer, departmental personnel or employee stating that the requirements ofthis section do not preclude said person from lobbying any officer, departmental personnel or employee of the county. The Inspector General shall verify the accuracy of each affidavit executed by former county officers, departmental personnel or employees. (5) Any individual who is found to be in violation of this Subsection (q) shall be subject to the penalties provided in either Subsection (u)(I) or Subsection (u)(2).(Ord. No. 72-82, ~ 1, 11-21-72; Ord. No. 77-13, ~ 4, 3-1-77; Ord. No. 99-2, ~ 1, 1-21-99) (r) Ethics Commission to render opinions on request. Whenever any person included in the terms defined in subsection (b)(I) through (6) and subsection (b )(9) is in doubt as to the proper interpretation or application of this conflict of interest and Code of Ethics Ordinance as to himself or herself, or whenever any person who renders services to the County is in doubt as to the applicability of the said ordinance as to himself or herself, he or she may submit to the Ethics Commission a full written statement of the facts and questions he or she has. The Ethics Commission shall then render an opinion to such person and shall publish these opinions without use of the name of the person advised unless such person requests the use of his or her name. (Ord. No. 73-26, ~ 1,3-20-73; Ord. No. 77-13, ~ 4, 3-1-77; Ord. No. 97-105, ~ 2, 7-8-97) (s) Lobbying. (I) (a) As used in this section, "County personnel" means those County officers and employees specified in Section 2-11.1(i)(2) of the Miami-Dade County Conflict of Interest and Code of Ethics Ordinance. (b) As used in this section, "Lobbyist" means all persons, firms, or corporations employed or retained by a principal who seeks to encourage the passage, defeat, or modifications of(1) ordinance, resolution, action or decision of the County Commission; (2) any action, decision, recommendation of the County Manager or any County board or committee; or (3) any action, decision or recommendation of County personnel during the time period of the entire decision-making process on such action, decision or recommendation which foreseeably will be heard or reviewed by the County Commission, or a County board or committee. "Lobbyist" specifically includes the principal as well as any employee whose normal scope of employment includes lobbying activities. The term "Lobbyist" specifically excludes the following persons: attorneys or other representatives retained or employed solely for the purpose of representing individuals, corporations or other entities during publicly noticed quasi-judicial proceedings where the law prohibits ex-parte communications; expert witnesses who provide only scientific, technical or other specialized information or testimony in public meetings; any person who only appears as a representative of a neighborhood association without compensation or reimbursement for the appearance, whether direct, indirect or contingent, to express support of or opposition to any item; any person who only appears as a representative of a not-for-profit community based organization for the purpose of requesting a grant without special compensation or reimbursement for the appearance; and employees of a principal whose normal scope of employment does not include lobbying activities. (2) All lobbyists shall register with the Clerk of the Board of County Commissioners within five (5) business days of being retained as a lobbyist or before engaging in any lobbying activities, whichever shall come first. Every person required to so register shall: (a) Register on forms prepared by the Clerk; (b) State under oath his or her name, business address and the name and business address of each person or entity which has employed said registrant to lobby. If the lobbyist represents a corporation, the corporation shall also be identified. Without limiting the foregoing, the lobbyist shall also identify all persons holding, directly or indirectly, a five (5) percent or more ownership interest in such corporation, partnership, or trust. Registration of all lobbyists shall be required prior to January 15 of each year and each person who withdraws as a lobbyist for a particular client shall file an appropriate notice of withdrawal. The fee for annual registration shall be four hundred and ninety dollars ($490.00). Every registrant shall be required to state the extent of any business or professional relationship with any current person described in subsection (b)(1). The registration fees required by this subsection shall be deposited by the Clerk into a separate account and shall be expended for the purpose of recording, transcribing, administration and other costs incurred in maintaining these records for availability to the public. There shall be no fee required for filing a notice of withdrawal and the Board of County Commissioners may, in its discretion, waive the registration fee upon a finding of financial hardship. (c) Prior to conducting any lobbying, all principals must file a form with the Clerk of the Board of County Commissioners, signed by the principal or the principal's representative, stating that the lobbyist is authorized to represent the principal. Failure of a principal to file the form required by the preceding sentence may be considered in the evaluation of a bid or proposal as evidence that a proposer or bidder is not a responsible contractor. Each principal shall file a form with the Clerk of the Board at the point in time at which a lobbyist is no longer authorized to represent the principal. (3) (a) Any public officer, employee or appointee who only appears in his or her official capacity shall not be required to register as a lobbyist. (b) Any person who only appears in his or her individual capacity for the purpose of self- representation without compensation or reimbursement, whether direct, indirect or contingent, to express support of or opposition to any item, shall not be required to register as a lobbyist. (4) Any person who only appears as a representative of a not-for-profit corporation or entity (such as a charitable organization, or a trade association or trade union), without special compensation or reimbursement for the appearance, whether direct, indirect or contingent, to express support of or opposition to any item, shall register with the Clerk as required by this subsection, but, upon request, shall not be required to pay any registration fees. (5) Any person who appears as a representative for an individual or firm for an oral presentation before a county certification, evaluation, selection, technical review or similar committee, shall list on an affidavit provided by the County, all individuals who may make a presentation. The affidavit shall be filed by staff with the Clerk's office at the time the proposal is submitted. For the purpose of this subsection only, the listed members of the presentation team shall not be required to pay any registration fees. No person shall appear before any committee on behalf of an individual or firm unless he or she has been listed as part of the firm's presentation team pursuant to this paragraph or unless he or she is registered with the Clerk's office and has paid all applicable fees. (6) (a) Commencing July 1, 1986, and on July 1 of each year thereafter, the lobbyist shall submit to the Clerk of the Board of County Commissioners a signed statement under oath, as provided herein, listing all lobbying expenditures in excess of twenty-five dollars ($25.00) for the preceding calendar year. A statement shall be filed even if there have been no expenditures during the reporting period. The statement shall list in detail each expenditure by category, including food and beverage, entertainment, research, communication, media advertising, publications, travel, lodging and special events. (b) The Clerk ofthe Board of County Commissioners shall notify any lobbyist who fails to timely file an expenditure report. In addition to any other penalties which may be imposed as provided in subsection (s)(9), a fine of fifty dollars ($50.00) per day shall be assessed for reports filed after the due date. Where a fine of fifty dollars ($50.00) per day is assessed, the Ethics Commission shall not impose a fine as provided in subsection (z). Any lobbyist who fails to file the required expenditure report by September 1 st shall be automatically suspended from lobbying until all fines are paid unless the fine has been appealed to the Ethics Commission. (c) The Clerk of the Board of County Commissioners shall notify the Commission on Ethics and Public Trust of the failure of a lobbyist or principal to file a report and/or pay the assessed fines after notification. (d) A lobbyist or principal may appeal a fme and may request a hearing before the Commission on Ethics and Public Trust. A request for a hearing on the fine must be filed with the Commission on Ethics and Public Trust within fifteen (15) calendar days of receipt ofthe notification of the failure to file the required disclosure form. The Commission on Ethics and Public Trust shall have the authority to waive the fme, in whole or part, based on good cause shown. The Commission on Ethics and Public Trust shall have the authority to adopt rules of procedure regarding appeals from the Clerk of the Board of County Commissioners. (7) No person may, in whole or in part, pay, give or agree to payor give a contingency fee to another person. No person may, in whole or in part, receive or agree to receive a contingency fee. As used herein, "contingency fee" means a fee, bonus, commission, or nonmonetary benefit as compensation which is dependent on or in any way contingent on the passage, defeat, or modification of: (1) an ordinance, resolution, action or decision of the County Commission; (2) any action, decision or recommendation of the County Manager or any County board or committee; or (3) any action, decision or recommendation of County personnel during the time period of the entire decision- making process regarding such action, decision or recommendation which foreseeably will be heard or reviewed by the County Commission, or a County board or committee. (8) The Clerk shall publish logs on a quarterly and an annual basis reflecting the lobbyist registrations which have been filed in accordance with this subsection (s). All logs required by this ordinance shall be prepared in a manner substantially similar to the logs prepared for the Florida Legislature pursuant to Section 11.045, Florida Statutes. (9) The Ethics Commission shall investigate any person engaged in lobbying activities who may be in violation of this subsection (s). In the event that a violation is found to have been committed the Ethics Commission may, in addition to the penalties set forth in subsection (z), prohibit such person from lobbying before the County Commission or any committee, board or personnel of the County as provided herein. Every lobbyist who is found to be in violation of this section shall be prohibited from registering as a lobbyist or lobbying in accordance with the following schedule: 1 st violation for a period of 90 days from the date of determination of violation; 2 nd violation for a period of one (1) year from the date of determination of violation; 3 rd violation for a period of five (5) years from the date of determination of violation; A bidder or proposer shall be subject to the debarment provisions of Section 10-38 of the Code of Miami-Dade County as if the bidder or proposer were a contractor where the bidder or proposer has violated this section, either directly or indirectly or any combination thereof, on three (3) or more occasions. As used herein, a "direct violation" shall mean a violation committed by the bidder or proposer and an "indirect violation" shall mean a violation committed by a lobbyist representing said bidder or proposer. A contract entered into in violation of this section shall also render the contract voidable. The County Manager shall include the provisions of this subsection in all County bid documents, RFP, RFQ, CBO and CDBG applications; provided, however, the failure to do so shall not render any contract entered into as the result of such failure illegal per se. (10) All members of the County Commission, and all County personnel, shall be diligent to ascertain whether persons required to register pursuant to this subsection have been complied. Commissioners or County personnel may not knowingly permit a person who is not registered pursuant to this subsection to lobby the Commissioner, or the relevant committee, board or County personnel. (II) Except as otherwise provided in subsection (s)(9), the validity of any action or determination of the Board of County Commissioners or County personnel, board or committee shall not be affected by the failure of any person to comply with the provisions of this subsection(s). (Ord. No. 00-19, S 1,2-8-00; Ord. No. 01-93, S 1,5-22-01; Ord. No. 01-162, S 1, 10-23- 01) (t) Cone of Silence. 1. Contracts for the provision of goods and service other than audit and independent private sector inspector general (IPSIG) contracts. (a) "Cone of Silence" is hereby defined to mean a prohibition on: (i) any communication regarding a particular RFP, RFQ or bid between a potential vendor, service provider, bidder, lobbyist, or consultant and the County's professional staff including, but not limited to, the County Manager and his or her staff; (ii) any communication regarding a particular RFP, RFQ or bid between the Mayor, County Commissioners or their respective staffs and any member of the County's professional staff including, but not limited to, the County Manager and his or her staff; (iii) any communication regarding a particular RFP, RFQ or bid between a potential vendor, service provider, bidder, lobbyist, or consultant and any member ofthe selection committee therefore; (iv) any communication regarding a particular RFP, RFQ or bid between the Mayor, County Commissioners or their respective staffs and any member of the selection committee therefore; (v) any communication regarding a particular RFP, RFQ or bid between a potential vendor, service provider, bidder, lobbyist, or consultant and the Mayor, County Commissioners and their respective staffs; and (vi) any communication regarding a particular RFP, RFQ or bid between any member the County's professional staff and any member of the selection committee therefore. The County Manager and the Chairperson of the selection committee may communicate about a particular selection committee recommendation, but only after the committee has submitted an award recommendation to the Manager and provided that should any change occur in the committee recommendation, the content of the communication and of the corresponding change shall be described in writing and filed by the Manager with the Clerk of the Board and be included in any recommendation memorandum submitted by the Manager to the Board of County Commissioners. Notwithstanding the foregoing, the Cone of Silence shall not apply to (i) competitive processes for the award of CDBG, HOME, SHIP and Surtax Funds administered by the Miami-Dade County Office of Community and Economic Development and the community-based organization (CBO) competitive grant processes administered by the Park and Recreation, Library, Water and Sewer, and Solid Waste Departments, Cultural Affairs and Tourist Development Councils and the Department of Environmental Resources Management; (ii) communications with the County Attorney ~---- and his or her staff; (iii) communications between a potential vendor, service provider, bidder, consultant or lobbyist and employees of the Management and Technical Assistance Unit of the Department of Business Development regarding small business and/or minority business programs, the Community Business Enterprise and Equitable Distribution Programs; (iv) communications between a potential vendor, service provider, bidder, consultant or lobbyist and employees responsible for administering disadvantaged business enterprise programs in County departments receiving federal funds, provided the communications are limited strictly to matters of programmatic process or procedure; (v) duly noticed site visits to determine the competency of bidders regarding a particular bid during the time period between the opening of bids and the time the County Manager makes his or her written recommendation; (vi) any emergency procurement of goods or services pursuant to Administrative Order 3-2; (vii) communications regarding a particular RFP, RFQ or bid between any person and the Vendor Information Center staff, the procurement agent or contracting officer responsible for administering the procurement process for such RFP, RFQ or bid, provided the communication is limited strictly to matters of process or procedure already contained in the corresponding solicitation document; and (viii) communications regarding a particular RFP, RFQ or bid between the procurement agent or contracting officer, or their designated secretarial/clerical staff responsible for administering the procurement process for such RFP, RFQ or bid and a member of the selection committee therefore provided the communication is limited strictly to matters of process or procedure already contained in the corresponding solicitation document. (b) Procedure. (i) A Cone of Silence shall be imposed upon each RFP, RFQ and bid after the advertisement of said RFP, RFQ or bid. At the time of imposition of the Cone of Silence, the County Manager or his or her designee shall provide for public notice of the Cone of Silence. The County Manager shall issue a written notice thereof to the affected departments, file a copy of such notice with the Clerk of the Board, with a copy thereofto each Commissioner, and shall include in any public solicitation for goods and services a statement disclosing the requirements of this ordinance. Notwithstanding any other provision ofthis Section, the imposition of a Cone of Silence on a particular RFP, RFQ or bid shall not preclude staff from obtaining industry comment or performing market research therefore provided all communications related thereto between a potential vendor, service provider, bidder, lobbyist, or consultant and any member of the County's professional staff including, but not limited to, the County Manager and his or her staff are in writing or are made at a duly noticed public meeting. (ii) The Cone of Silence shall terminate at the time the Manager makes his or her written recommendation to the County Commission; provided, however, that if the Commission refers the Manager's recommendation back to the Manager or staff for further review, the Cone of Silence shall be reimposed until such time as the Manager makes a subsequent written recommendation. The foregoing notwithstanding, for contracts and purchases which the County Manager has the delegated authority to award under Sec. 2-8.1(b) of this Code, the Cone of Silence shall terminate: (i) at the time the award recommendation letter is issued and filed with the Clerk of the Board for such contracts and purchases involving the expenditure of over one hundred thousand dollars ($100,000); (ii) at the time the written award recommendation is posted in accordance with Section III of A.O. 3-21 for such contracts or purchases involving the expenditure of over $25,000 up to $100,000; or (iii) at the time the award recommendation is issued in accordance with Section IV of A.a. 3-21 for contracts and purchases involving the expenditure of$25,000 or less. (c) Exceptions. The provisions of this ordinance shall not apply to oral communications at pre-bid conferences, oral presentations before selection committees, contract negotiations during any duly noticed public meeting, public presentations made to the Board of County Commissioners during any duly noticed public meeting or communications in writing at any time with any county employee, official or member of the Board of County Commissioners unless specifically prohibited by the applicable RFP, RFQ or bid documents. The bidder or proposer shall file a copy of any written communication with the Clerk ofthe Board. The Clerk of the Board shall make copies available to any person upon request. 2. Audit and IPSIG contracts. (a) "Cone of Silence" is hereby defined to mean a prohibition on: (a) any communication regarding a particular RFP, RFQ or bid between a potential vendor, service provider, bidder, lobbyist, or consultant and the Mayor, County Commissioners or their respective staffs and any member of the County's professional staff including, but not limited to, the County Manager and his or her staff; and (b) any oral communication regarding a particular RFP, RFQ or bid between the Mayor, County Commissioners or their respective staffs and any member of the County's professional staff including, but not limited to, the County Manager and his or her staff. Notwithstanding the foregoing, the Cone of Silence shall not apply to communications with the County Attorney and his or her staff. (b) Except as provided in Subsections 2( c) and 2( d) hereof, a Cone of Silence shall be imposed upon each RFP, RFQ and bid for audit and IPSIG services after the advertisement of said RFP, RFQ or bid. At the time of the imposition of the Cone of Silence, the County Manager or his or her designee shall provide for the public notice of the Cone of Silence. The Cone of Silence shall terminate when the County Manager executes a particular audit or IPSIG contract. (c) Nothing contained herein shall prohibit any bidder or proposer: (i) from making public presentations at duly noticed pre-bid conferences or before duly noticed selection committee meetings; (ii) from engaging in contract negotiations during any duly noticed public meeting; or (iii) from communicating in writing with any County employee or official for purposes of seeking clarification or additional information from the County or responding to the County's request for clarification or additional information, subject to the provisions of the applicable RFP, RFQ or bid documents. The bidder or proposer shall file a copy of any written communication with the Clerk of the Board. The Clerk of the Board shall make copies available to the general public upon request. Cd) Nothing contained herein shall prohibit any lobbyist, bidder, proposer or other person or entity from publicly addressing the Board of County Commissioners during any duly noticed public meeting regarding action on any audit or IPSIG contract. The County Manager shall include in any public solicitation for auditing or IPSIG services a statement disclosing the requirements of this ordinance. 3. Penalties. In addition to the penalties provided in Subsections (s) and (v) hereof, violation of this Subsection (t) by a particular bidder or proposer shall render any RFP award, RFQ award or bid award to said bidder or proposer voidable. Any person who violates a provision of this ordinance shall be prohibited from serving on a Miami-Dade County competitive selection committee. In addition to any other penalty provided by law, violation of any provision of this ordinance by a Miami-Dade County employee shall subject said employee to disciplinary action up to and including dismissal. Additionally, any person who has personal knowledge of a violation of this ordinance shall report such violation to the State Attorney and/or may file a complaint with the Ethics Commission. 4. The requirements of Section 2-11.1 (t) shall not apply to any municipality in Miami- Dade County that has adopted an ordinance providing that the cone of silence shall not apply to that municipality. Any municipality that opts out of the requirements of Section 2-11.1(t) shall provide the Ethics Commission with a copy of the ordinance. (Ord. No. 99-1, ~ 1,1-21-99; Ord. No. 00-149, ~ I, 11-28-00; Ord. No. 01-149, ~ 1,9-25- 01; Ord. No. 01-150, ~ 1,9-25-01; Ord. No. 02-3, ~ 1, 1-29-02; Ord. No. 04-77, ~ 1,4- 27-04) (u) Prohibition on certain business transactions. No person who is serving as an elected county official or a member of the staff of an elected county official, or as county manager, senior assistant to the county manager or department director shall enter into a business transaction with any person or entity that has a contract with Miami-Dade County or any shareholder, partner, officer, director or employee of said contractor, unless said business transaction is an arm's length transaction made in the ordinary course of business. The provisions of this subsection (u) shall not apply to a business transaction between an elected county official, a member of the staff of an elected county official, the county manager, a senior assistant to the county manager or a department director and a not-for-profit entity. As used herein, a "shareholder" shall mean any person owning ten (10) percent or more of the outstanding capital stock of any corporation. As used herein, "elected county official" shall mean the mayor, county commissioners and community council members. As used herein, "business transaction" shall mean any contract wherein persons either sell, buy, deal, exchange, rent, lend or barter real, personal or intangible property, money or any other thing of value, or render services for value. (v) Voting Conflicts. Members of Advisory and Quasi-Judicial Boards. No person included in the terms defined in subsections (b)(3) (quasi-judicial personnel) and (b)(4) (advisory personnel) shall vote on any matter presented to an advisory board or quasi- judicial board on which the person sits if the board member will be directly affected by the action of the board on which the member serves, and the board member has any of the following relationships with any of the persons or entities appearing before the board: (i) officer, director, partner, of counsel, consultant, employee, fiduciary or beneficiary; or (ii) stockholder, bondholder, debtor or creditor. (w) Prohibition on acceptance of travel expenses from county vendors. Notwithstanding any other provision of this section, no person included in subsections (b)( 1 )(Mayor and Commissioners), (b)(5)(departmental personnel) or (b)(6) (employees) shall accept, directly or indirectly, any travel expenses including, but not limited to, transportation, lodging, meals, registration fees and incidentals from any county contractor, vendor, service provider, bidder or proposer. The Board of County Commissioners may waive the requirements of this subsection by a majority vote ofthe Commission. The provisions of this subsection (w) shall not apply to travel expenses paid by other governmental entities or by organizations of which the County is a member if the travel is related to that membership. (x) Powers and jurisdiction of Ethics Commission. The Ethics Commission shall be empowered to review, interpret, render advisory opinions and letters of instruction and enforce the conflict ofInterest and Code of Ethics Ordinance. Jurisdiction ofthe Ethics Commission shall automatically extend to Commissioners, autonomous personnel, quasi- judicial personnel, departmental personnel, employees, advisory personnel, immediate family, lobbyists as defined in subsections (b) and (s) who are required to comply with the Conflict of Interest and Code of Ethics Ordinance; and any other person required to comply with the Conflict ofInterest and Code of Ethics Ordinance including, but not limited to, contractors and vendors. In the event that the Ethics Commission does not assume jurisdiction as provided in the preceding sentence, the Ethics Commission may refer the complaint to the State Attorney for appropriate action. Notwithstanding the foregoing, the Ethics Commission shall not have jurisdiction to consider an alleged violation of subsection (c) if the requirements of subsection (c) have been waived for a particular transaction as provided therein. (y) Prohibition on participation in settlement negotiations. Neither the Mayor, a County Commissioner nor any member of their staff shall participate in settlement negotiations of claims or lawsuits, including but not limited to contract scope or compensation adjustments involving the County without prior approval of the Board of County Commissioners. (z) County Attorney's Office participation in contract adjustments. County staff shall request the participation of the County Attorney's Office to provide legal advice regarding scope or compensation adjustments which increase by more than one million dollars ($1,000,000), the value of a construction contract or a contract involving the purchase of goods or services. (aa) Penalty. (I) Proceeding before Ethics Commission. A finding by the Ethics Commission that a person has violated this section shall subject said person to an admonition or public reprimand and/or a fine oftwo hundred fifty dollars ($250.00) for the first such violation and five hundred dollars ($500.00) for each subsequent violation. The Ethics Commission may also order the person to pay restitution when the person or a third party has received a pecuniary benefit as a result of the person's violation. The procedure for determining restitution shall be governed by an administrative order adopted by the County Commission and rules of procedure promulgated by the Ethics Commission. (2) Prosecution by State Attorney in State court. Every person who is convicted of a violation of this section in State court shall be punished by a fine not to exceed five hundred dollars ($500.00) or imprisonment in the County Jail for not more than thirty (30) days, or by both such fine and imprisonment. (Ord. No. 72-82, S 1, 11-21-72; Ord. No. 73-26, S 1,3-20-73; Ord. No. 77-13, S 4, 3-1- 77; Ord. No. 86-24, S 2, 4-1-86; Ord. No. 91-22, S 1,2-19-91; Ord. No. 92-27, S 1,4-21- 92; Ord. No. 95-21, S 1,2-7-95; Ord. No. 97-105, S 2, 7-8-97; Ord. No. 98-73, S 1,6-2- 98; Ord. No. 98-76, S 1,6-2-98; Ord. No. 98-106, S 1,7-21-98; Ord. No. 98-125, S 1,9- 3-98; Ord. No. 99-150, S 1, 11-2-99; Ord. No. 00-46, S 1,4-11-00; 00-149, S 1,11-28-00; Ord. No. 01-199, S 1, 12-4-01; Ord. No. 03-73, S 1,4-8-03; Ord. No. 03-107, S 1,5-6-03; Ord. No. 03-140, S 1,6-3-03; Ord. No. 04-55, S 1,3-16-04) Editor's note: Ord. No. 72-82, S 1, amended this Code by repealing former S 2-11.1 relative to County officers and employees transacting business with the County and enacted in lieu thereof a new S 2-11.1 as herein set out. Former S 2-11.1 was derived from Ord. No. 59-44, SS 2--5, adopted Dec. 1, 1959. , , FLORIDA COMMISSION ON ETHICS 2005 GUIDE TO THE SUNSHINE AMENDMENT and CODE OF ETHICS for PUBLIC OFFICERS and EMPLOYEES State of Florida COMMISSION ON ETHICS Joel K. Gustafson, Chair Orlando Peter Antonacci Kurt D. Jones Tallahassee Pensacola John A. Grant, Jr. John P. Linstroth Tampa West Palm Beach Charles Lydecker Thomas P. Scarritt, Jr. Daytona Beach Tampa Richard L. Spears Catherine B. Whatley Orlando Jacksonville 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. 1 TABLE OF CONTENTS I. HISTORY OF FLORIDA'S ETHICS LAWS ........................................................................................................ 4 II. ROLE OF THE COMMISSION ON ETHICS ......................................................................................................4 III. THE ETHICS LAWS... ......... ........ ................. ......... ......................... .......................... ........ ..... ................ .............5 A. PROHIBITED ACTIONS OR CONDUCT ...................................................................................................... 5 1. Solicitation or Acceptance of Gifts...........................................................................................................5 2. Unauthorized Compensation................................................................................................................... 5 3. Misuse of Public Position ............................................................ .... ................... ................ ............... ....... 6 4. Disclosure or Use of Certain Information................................................................................................. 6 5. Solicitation or Acceptance of Honoraria .................................................................................................. 6 B. PROHIBITED EMPLOYMENT AND BUSINESS RELATIONSHIPS ............................................................ 6 1. Doing Business With One's Agency ........................................................................................................6 2. Confiicting Employment or Contractual Relationship .............................................................................. 7 3. Exemptions......................................................................................................................... ..................... 7 4. Additional Exemption............................................................................................................................ ... 8 5. Lobbying State Agencies by Legislators.................................................................................................. 8 6. Employees Holding Office ...... ............ ................ ............................... ........................ ............ .................. 8 7. Professional & Occupational Licensing Board Members ........................................................................8 8. Contractual Services: Prohibited Employment........................................................................................8 9. Local Government Attorneys ................................ ......... ................ .................................. ........................9 C. RESTRICTIONS ON APPOINTING, EMPLOYING, AND CONTRACTING WITH RELATIVES .................. 9 D. POST OFFICEHOLDING AND EMPLOYMENT (REVOLVING DOOR) RESTRiCTIONS........................... 9 1. Lobbying By Former Legislators, Statewide Elected Officers, and Appointed State Officers .................9 2. Lobbying By Former State Employees .................................................................................................... 9 3. Additional Restrictions on Former State Employees .............................................................................10 4. Lobbying By Former Local Government Officers and Employees ........................................................ 11 E. VOTING CONFLICTS OF INTEREST ........................................................................................................ 11 F. DiSCLOSURES......... ..... ...... .......... ....................... ......... ................... ................ ........... ....... ........... ............. 12 1. Form 1 - Limited Financial Disclosure ................................................................................................... 12 2. Form 1 F - Final Form 1.......................................................................................................................... 14 3. Form 2 . Quarterly Client Disclosure ..................................................................................................... 15 4. Form 6 - Full and Public Disclosure.......................................................................................................15 5. Form 6F - Final Form 6..........................................................................................................................16 6. Form 9. Quarterly Gift Disclosure.........................................................................................................16 7. Form 10 - Annual Disclosure of Gifts from Governmental Entities and Direct Support Organizations and Honorarium Event-Related Expenses............................................. 16 2 8. Form 30 - Donor's Quarterly Gift Disclosure .........................................................................................17 9. Form 1X and 6X - Amendments ............................................................................................................ 17 IV. A V AILASIUTY OF FORMS ...................... .......................................... ........................................ ...................... 17 V. PENAL TIES ....................................................... ........ ......... ................. ........ ......... .......... ........................ .......... 18 A. For Violations of the Code of Ethics............................................................................................................ 18 B. For Violations by Candidates ...................................................................................................................... 18 C. For Violations by Former Officers and Employees...................................................................................... 18 D. For Lobbyists and Others ............................................................................................................................18 E. Felony Convictions: Forfeiture of Retirement Benefits................................................................................ 1 9 F. Automatic Penalties for Failure to File Annual Disclosure .......................................................................... 19 VI. ADVISORY OPINIONS ....................................................................................................................................19 A. Who Can Request An Opinion ....................................................................................................................19 B. How To Request An Opinion ....................................................................................................................... 19 C. How to Obtain Published Opinions..............................................................................................................19 VII. COMPLAINTS ......... ......... ......................................................................... .......................... ...................... ....... 20 A. Citizen Responsibility.............................................................................................................................. .... 20 B. Confidentiality............................................................................................................................ .................. 20 C. How the Complaint Process Works ............................................................................................................ 20 D. Dismissal of Complaint at Any Stage of Disposition ...................................................................................21 E. Statute of Limitations ... .............................. ................... ...................... ........ ........ ...................... ...... ............. 21 VIII. EXECUTIVE BRANCH LOBBYING ........................... ......... ......................... .............................................. ...... 21 IX. WHISTLE-BLOWER'S ACT ...... .......... ... ........................................... ... ................ ............. .... ..... ................ .,. ...22 X. ADDITIONAL INFORMATION ........................ ................ ........ ... ............ .......................... ...... .................... ....... 22 XI. ONLlN E TRAINING ......................... ......................... ................................ ................................................ ... .....23 3 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. Fiorida's first successful constitutional initiative resulted in the adoption of the "Sunshine Amendment" in 1976, providing additional constitutional guarantees concerning ethics in government. 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 public trust 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. Foremost among the goals of the Code is to promote the public interest and maintain the respect of the people for their government. The Code is also intended to ensure that public officials conduct themselves independently and impartially, not using their offices for private gain other than compensation provided by law. While seeking to protect the integrity of government. 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 created the Commission on Ethics that year "to serve as guardian of the standards 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 than 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 a one-year term and may not succeed himself or herself. II. 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; 4 . 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; . 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 disclosures be made to the public. The following descriptions of these laws are simplified to put people on notice of their requirements. Therefore, we also suggest 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 advisory bodies. The principal exception to this broad coverage is the exclusion of judges, as they fall within the jurisdiction of the Judicial Qualifications Commission. A. PROHIBITED ACTIONS OR CONDUCT 1. Solicitation and Acceptance of Gifts Public officers, employees, local government attorneys, and candidates 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. Sta!.] 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 continuous existence, lobbyist who has lobbied his or her agency within the past 12 months, or the partner, firm, employer, or principal of such a lobbyis!. [Section 112.3148, Fla. Stat.] A person required to file FORM 1 or FORM 6, as well as a State procurement employee, is prohibited from directly or indirectly accepting a gift worth over $100 from such a lobbyist, from a partner, firm, employer, or principal of the lobbyist, or from a political committee or committee of continuous existence. [Section 112.3148. Fla. Sta!.] 5 2. Unauthorized Compensation Public officers or employees, local government attorneys, 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 infiuence a vote or other official action. [Sec. 112.313(4), Fla. Stat.] 3. Misuse of Public Position Public officers and employees, and iocal government attorneys 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 Cer/ain Information Public officers and employees, and local government 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 themselves 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 procurement 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 principai 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 brochure. [Section 112.3149, Fla. Stat.] Lobbyists and their partners, firms, employers, and principals, as well as political committees and committees of continuous existence, are prohibited 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 officer 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.] 6 (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 subdivision 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 doing 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 frequently recurring confiict 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 persons whose professions or occupations qualify them to hold their public positions. [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 official serves at the state or local level. (c) When the purchase or sale is for legal advertising, utilities service, 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 exceed $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 official is an officer, director, or stockholder, so long as agency records show that the governing body has determined that the member did not favor his or her bank over other qualified banks. 7 (h) When the prohibitions are waived in the case of ADVISORY BOARD MEMBERS by the appointing person or by a two-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. U) When the public officer or employee in a private capacity purchases goods or services from a business entity which is subject to the regulation of his or her agency where the price and terms of the transaction are avaiiable to similarly situated members of the general public and the officer or employee makes full disclosure of the relationship to the agency head or governing body prior to the transaction. [Sec. 112.313(12), Fla. Stal.] 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 employer, and makes certain disclosures. [Sec. 112.313(14), Fla. Stal.] 5. Lobbying State Agencies By Legislators A member of the Legislature is prohibited from representing another person or entity for compensation during his or her term of office before any state agency other than judicial tribunals. [Art II, Sec. 8(13), Fla. Consl. and Sec. 112.313(9), Fla. Stal.] 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 professional or occupational organization or association, while holding such position, may not serve as a member of a state examining or licensing board for the profession or occupation. [Sec. 112.313(11), Fla. Stat.] B. Contractual Services: Prohibited Employment A state employee of the executive or judicial branches who participates in the decision-making process involving a purchase request, who influences the content of any specification or procurement standard, or who renders advice, 8 investigation, Dr auditing, regarding his or her agency's cDntract for services, is prDhibited frDm being employed with a person holding such a contract with his or her agency. [Sec. 112.3185(2), Fla. StaL] 9. Local Government Attorneys Local gDvernment attorneys and their law firms are prohibited from representing private individuals and entities before the unit of local government which they serve. A local government attorney cannot recommend or otherwise refer to his Dr her firm legai wDrk invDlving the local gDvernment unit unless the attDrney's cDntract authorizes Dr mandates the use of that firm. [Sec. 112.313(16), Fla. Stat.] C. RESTRICTIONS ON APPOINTING, EMPLOYING, AND CONTRACTING WITH RELATIVES 1. Anti-Nepotism Law A public official is prohibited from seeking for a relative any appointment, 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 position in an agency if such action has been advocated by a related pubiic official who is serving in or exercising jurisdiction or control over the agency; this includes relatives of members of collegial government bodies. NOTE: This prohibition does not apply to school districts (except as provided in Section 1012.23, Florida Statutes), community colleges, and state universities, or to appointments of boards in municipalities of less than 35,000, other than those with land-planning or zoning responsibilities. Also, the approval 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.] 2. Additional Restrictions A state .emplDyee of the executive or judicial branches or the PSC is prohibited from directly or indirectly procuring contractual services for his or her agency from a business entity of which a relative is an officer, partner, director, or proprietor, or in which the employee, his or her spouse, and children own more than a 5% interest. [Sec. 112.3185(6), Fla. StaL] D. POST OFFICEHOLDING AND EMPLOYMENT (REVOLVING DOOR) RESTRICTIONS 1. Lobbying by Former Legislators, Statewide Elected Officers, and Appointed 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 government 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. StaL] This applies to appointed State officers who are appointed on or after Jan. 1, 1995. 9 2. Lobbying by Former State Employees Certain employees of the executive and legislative branches of state government are prohibited from personally representing another person or entity 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 governmen!. [Sec. 112.313(9), Fla. Sta!.] These employees inciude 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 having 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 Government Accountability (OPPAGA); the Sergeant at Arms and Secretary of the Senate; the Sergeant at Arms and Clerk of the House of Representatives; the executive director of the Legislative Committee on Intergovernmentai Relations and the executive director and deputy executive director of the Commission on Ethics; an executive director, staff director, or deputy staff director 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 Representatives, the Senate Majority Party Office, the Senate Minority Party Office, the House Majority Party 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 normally 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 PENAL TIES, Part V) as well as a civil penalty in an amount equal to the compensation which the person receives for the prohibited conduct. [Sec. 112.313(9)(a)5., Fla. Sta!.] 3. Additional Restrictions on Former State Empioyees 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 10 a public agency) in connection with a contract in which the employee participated 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 PSG employee 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 contractual 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. StaL] These prohibitions do not apply to PSC employees who were so employed 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 district office is prohibited from representing another person or entity for compensation before the government body of which he or she was an officer for two years after leaving office. Appointed officers and employees of counties, municipalities, school districts, and special districts may be subject to a similar restriction by local ordinance or resolution. [Sec. 112.313(13) and (14), Fla. StaL] 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 SUBSIDIARY of a CORPORATE PRINCIPAL by which he or she is retained, of a RELATIVE, or of a BUSINESS ASSOCIATE, must file a memorandum of voting 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 9ain 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 SUBSIDIARY of a CORPORATE PRINCIPAL by which he or she Is retained, of a RELATIVE, or of a BUSINESS ASSOCIATE. 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 meetlng's recording officer within 15 days after the vote occurs disclosing the nature of his or her interest In the matter. However, members of community redevelopment agencies and district officers elected on a one-acre, one-vote basis are not required to abstain. 11 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 PRINCIPAL by which he or she is retained, of a RELATIVE or of a BUSINESS ASSOCIATE, without first disclosing the nature of his or her interest in the matter. The memorandum of voting conflict (Commission FORM 8A 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 appointed official must orally disclose the conflict at the meeting when the conflict 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 disclosure 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 public 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 disclosure; 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 officers, candidates for local elective office, and specified state employees as defined below (other than those officers who are required by law to file FORM 6). STATE OFFICERS include: (1) Elected public officials not serving in a political subdivision of the state and any person appointed to fill a vacancy in such office, unless required to file full disclosure on Form 6; 12 (2) Appointed members of each board, commission, authority, or council having statewide jurisdiction, excluding members of solely advisory bodies, but including judicial nominating commission members and Directors of the FL Black Business Investment Board, Enterprise Florida, and Workforce Florida; (3) The Commissioner of Education, members of the State Board of Education, the Board of Governors, and the local Boards of Trustees and Presidents of state universities; and (4) All elected public officers (excluding congressional) not covered under "local officers" and any person appointed to fill a vacancy in such elective office. LOCAL OFFICER includes: (1) Any person elected to office in any political subdivision and any person appointed to fill a vacancy for an unexpired term in such elective office; (2) An appointed member of certain boards of political subdivisions, including governing bodies, expressway and transportation authorities, community colleges, code enforcement boards, bodies with planning or zoning powers, 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 director; administrator with power to grant or deny a land development permit; (6) A chief of police; fire chief; municipal clerk; district school superintendent; community college president; medical examiner; and a purchasing agent having 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 attorney, an assistant public defender, a full-time state employee who serves as counselor 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, executive director, assistant executive director, or deputy executive director of each state department, commission, board, or council; and the division director, 13 assistant division director, deputy director, bureau chief, or assistant bureau 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 estabiished for training and research in the mental health field or of any major state institution or faciiity 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 officer, and grants coordinator for any state agency; (6) Any person employed in the iegislative branch of government. except persons employed in maintenance, clericai, 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 inciudes the reporting person's sources and types of financiai interests, such as the names of employers and addresses of real property holdings. NO DOLLAR VALUES ARE REQUIRED TO BE LISTED. 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 to File: CANDIDATES 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 EMPLOYEES 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 employment. Those appointees requiring Senate confirmation must file prior to confirmation. 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.] 14 2. FORM 1 F - Final Form 1 Limited Financial Disclosure FORM 1 F is the disclosure form required to be filed within 60 days after a public officer or employee required to file FORM 1 leaves his or her public position. The form covers the disclosure period between January 1 and the last day of office or employment within that year. 3. FORM 2 - Quarterlv 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 ministerial matters, appearances before judges of compensation claims. or representations 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 representation 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.] 4. FORM 6 - Full and Public Disclosure Who Must File: Persons required by law to file FORM 6 are all elected constitutional officers and candidates for such office; the Mayor and members of the City Council and candidates for these offices in Jacksonville; the Duval County Superintendent of Schools; Judges of Compensation Claims; and members of the Florida Housing Finance Corporation Board, the Florida Commission on Tourism, and the Florida Prepaid College Board. 15 What Must be Disclosed: FORM 6 is a detailed disclosure of assets, liabilities, and sources of income 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 disciose 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 Commission 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 empioyee required to file FORM 6 leaves his or her public position. The form covers the disclosure period between January 1 and the last day of office or employment within that year. 6. FORM 9 - Quarterlv Gift Disclosure Each person required to file FORM 1 or FORM 6, and each State procurement employee, must file a FORM 9, Quarterly Gift Disclosure, with the Commission on Ethics on the last day of any calendar quarter following the calendar quarter 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 disclosed. FORM 9 NEED NOT BE FILED if no such gift was received during the calendar quarter. Information 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 Aaencies and Direct-SuPport Oraanizations and Honorarium Event Related Expenses State government entities, airport authorities, counties, municipaiities, school boards, water management districts, the Tri-County Commuter Rail Authority, 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 pubiic purpose can be shown for the gift. Also, a direct-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 reported on FORM 10, to be filed by July 1. 16 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 emplDyee then must disclose this information by filing a statement by July 1 with his or her annual financial disclosure 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 emplDyees file their statements with the Commission Dn Ethics. [Sec. 112.3148, Fla. Stat.] In addition, a person required to file FORM 1 or FORM 6, or a State procurement emplDyee, who receives expenses or payment of expenses related to an honorarium event from someDne who is prohibited from giving him or her an honorarium, must disclose annually the name, address, and affiliation of the dDnor, the amount of the expenses, the date of the event, a description of the expenses paid or provided, and the total value of the expenses Dn FORM 10. The don Dr paying the expenses must provide the officer or employee with a statement about the expenses within 60 days of the honorarium event. HonDrarium related expenses from someone who does not employ a lobbyist do not have to be repDrted. 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 Ethics. [Sec. 112.3149, Fla. Stat., as created by Ch. 90-502, Laws of Fla.] 8. FORM 30 - Donor's Quarterlv Gift Disclosure As mentioned above. the follDwing persDns and entities generally are prDhibited from giving a gift worth over $100 to a reporting individual (a person required to file FORM 1 Dr FORM 6) or to a State procurement employee: a political committee or committee of continuous existence; a lobbyist who lobbies the reporting individual's Dr 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 Dr charitable organization), the gift should be reported on FORM 30. The donor also must notify the recipient at the time the gift is made that it will be reported. The FORM 30 shDuld be filed by the last day of the calendar quarter following the calendar quarter in which the gift was made. If the gift was made to an individual in the legislative branch, FORM 30 should be filed with the Lobbyist Registrar. If the gift was tD any Dther repDrting individual or State procurement employee, FORM 30 should be filed with the Commission on Ethics. 9. FORM 1 X AND FORM 6X - Amendments to Form 1 and FDrm 6 These fDrms are provided for Dfficers Dr employees who want tD amend their previDusly filed FDrm 1 Dr Form 6. 17 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 empioyees should contact the board of their agency for copies of the forms, as shouid those persons who are required to fiie their final disclosure statements within 60 days of leaving office or employment. ELECTED CONSTITUTiONAL OFFiCERS, OTHER STATE OFFICERS, and SPECIFiED STATE EMPLOYEES who must file 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 fiie 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 Commission 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. PENAL TIES 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: impeachment, 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 exceed $10,000, and restitution of any pecuniary benefits received. 8. Penaities for Candidates CANDIDATES for public office who are found in violation of the Sunshine 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, reprimand, 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 violation 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 reprimand, a civil penalty not to exceed $10,000, and restitution of any pecuniary benefits received. [Sec. 112.317, Fla. Stat.] 18 D. Penalties for Lobbyists and Others An executive branch lobbyist who has failed to comply with the Executive 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 expenditure 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; impeachable offenses; and felonies committed with intent to defraud the pubiic or their pubiic agency. [Sec. 112.3173, Fla. Stat.] F. Automatic Penalties for Failure to File Annual Disclosure Pubiic 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.] 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 Florida who is in doubt about the applicability of the standards of conduct or disclosure 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 uniess they consent to the use of their names. 19 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 a subject-matter index and a citator to all Florida Statutes and State constitutional provisions construed or relied upon by the Commission. Every agency of government 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: htto:/Iwww.ethics.state.fi.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 request copies of the Commission's published opinions. VII. COMPLAINTS A. A Citizen's Responsibility The Commission on Ethics cannot conduct investigations of alleged violations of the Sunshine Amendment or the Code of Ethics unless a person files a sworn complaint with the Cornrnission 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 RESPECT 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 complaint to the accused within five days of its receipt. Any subsequent sworn amendments to the complaint also are transmitted within five days of their receipt. 20 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 jurisdiction. 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 wiil become public at that time. If the complaint is found to be legally sufficient, a preliminary investigation 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 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 evidence 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 committed, it issues a public report of its findings and may recommend one or more penalties to the appropriate disciplinary body or official. 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 incurred 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 public report stating with particularity its reasons for the dismissal. [Sec. 112.324(10), Fla. Stat.] 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 Commission. If a complaint is filed and the statute of limitations has run, the complaint will be dismissed. [Sec. 112.3231, Fla. Stat.] 21 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 decision in the area of policy or procurement may be required to register as an executive branch lobbyist. Registration is required before lobbying an agency and is renewable annually. In addition, expenditure reports must be filed biannually 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 people from receiving a commission. [Sec. 112.3217, Fla. Stat.] Executive branch departments, state universities, community colleges, 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, Fia. 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 "Whistle-blower'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 protection to these employees. While this language is contained within the Code of Ethics, the Commission 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 person 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 Executive 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.] 22 X. ADDITIONALlNFORMATION 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 interpretations 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 Administrative 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 obligations 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 Commission's procedures. XI. ONLINE TRAINING Through a project funded by the Florida Legislature, an online workshop, Florida's Code of Ethics, Sunshine Law, and Public Records Acts, is now available free of charge to all elected officials and to those appointed to hold elective office. Participants other than elected officials can take the course for $15 per person. Bulk purchase arrangements, including state and local government purchase orders, are available. For more information, visit www.ethics.state.fl.us. 23