Nate Monroe: State lawmakers intent on making Florida the nation's corruption capital
COMMENTARY | Even in this benighted moment, most people might agree that public corruption is generally pretty bad, so the shady Florida Legislature is really breaking the mold this time: Lawmakers are considering a pair of bills that, taken together, would amount to a kind of informal sanctioning of unethical behavior by elected officials and government employees. Were they to become law, Florida could very well become the corruption capital of the United States simply because it's the only place dumb enough to damn near make it legal.
One bill, which has already passed unanimously in the Senate, would effectively prevent ethics officials across the state from investigating even credible, documented allegations of wrongdoing. The other, which has gained crucial support in both chambers, would put journalists at heightened risk of being sued for relying on anonymous sources — a time-honored and crucial component of investigative journalism that routinely brings to light government dysfunction, waste, and criminality.
Ethics officials defanged, journalists under threat, anonymous whistleblowers framed as liars: The only potential winners here are corrupt politicians and bureaucrats.
The main problems with Florida's ethics laws and its enforcement of them stem from how weak they are and how hamstrung investigators are when looking into potential problems. Investigations take forever. Genuine penalties are rare. Bad behavior is really never deterred. So naturally, the Legislature is doing its best to figure out how to make this crummy ethics regime even more impotent.
The state ethics commission has to wait for a complaint to be filed before it can even begin looking into potential wrongdoing. This inability to initiate an investigation on its own has long been viewed as a core weakness of the agency and one its past employees have pleaded with lawmakers to fix. Instead, this year, the Legislature wants to impose a restriction that would make it almost impossible for whistleblowers or concerned citizens to report bad behavior.
The Senate bill would require a valid complaint to be signed, sworn under oath and "based upon personal knowledge or information other than hearsay" before the commission could begin an investigation, seemingly innocuous words that, in practice, could eliminate almost all the conventional ways investigators tend to find out about wrongdoing. This oppressive restriction wouldn't just apply to the state ethics commission: Following a trend of rolling back home rule — the concept of local self-governance that helped move Florida into modernity — the bill would force local ethics commissions in Jacksonville, Miami and elsewhere, which are often far more effective than their state counterpart, to follow the same restrictions.
The state ethics commission was already unable to use anonymous complaints as a basis for investigations, but local commissions did not have this same restriction — one reason local officials are sometimes better positioned to investigate wrongdoing. Some local commissions also have the ability to initiate their own investigations. If the Senate bill becomes law, this all changes. No more anonymous sources. Investigative journalism won't do the trick either — an ethics official could read about an ethics violation over their morning coffee but still be powerless to do anything about it. Remarkably, even public sources of information like campaign finance reports and audits likely won't be enough to base an investigation on. It will require "personal knowledge" of potential wrongdoing, whatever that means. Who, after all, could claim to possess "personal knowledge" of a corrupt politician's misdeeds other than ... the politician? Is that in fact the actual goal here?
As one ethics official told me last week, "people don't commit ethics violations and then invite someone in to witness them."
Several years ago in Jacksonville, during a botched effort to sell the city-owned electric, water and sewer utility to a private power company — a scandal that eventually led to the indictment of the utility's former CEO and CFO — the city's former ethics director, Carla Miller, played an active role in checking the secretive, controversial process. She publicly called out potential conflicts of interest that existed on an initial team of sales negotiators, which temporarily paused the rapidly moving sales effort. And when utility executives flew to Atlanta to hold secret negotiating meetings with the potential buyers, Miller forced her way into the room to act as an observer. Her notes of those meetings — which she believed violated Florida's open-meetings law — contributed to a better and more complete picture of what was happening behind the scenes.
If this bill becomes law, it's unclear if a local ethics director like Miller could play such a watchdog role in the future. Absent a signed, sworn complaint of "personal knowledge" of a problem, what authority could Miller have claimed when grappling with public officials who resented her interference?
The responsibility to police state and local officials will fall to overworked and understaffed state prosecutors who are now subject to removal by the governor for virtually any ideological transgression and who, in any case, don't often project much concern for some of the low-hanging, important work ethics officials attempt to keep tabs on, like violations of Florida's Sunshine Law. Federal investigators might pick up some of the slack, but the Supreme Court is deep into a years-long project of limiting the tools prosecutors can use to go after public corruption.
The noxious provisions of this ethics bill all got attached at the last minute: State Sen. Danny Burgess, R-Zephyrhills, filed a series of amendments just a day before the bill was set to get a vote by the full Senate, circumventing the committee process and the chance for experts in the field — primarily ethics officials from around Florida — from sharing their candid concerns directly with lawmakers well in advance of a potential vote. Not surprisingly, the amendments were the subject of relatively short debate given their far-reaching implications before they were approved in a vote that was not recorded, "another black mark against the Senate’s lack of transparency," the South Florida Sun-Sentinel editorial board sharply noted.
Part and parcel of this effort, both chambers are also weighing legislation that would put reporters who rely on anonymous sources at heightened risk of being sued by public officials for defamation. The legislation is a slight improvement over a toxic version introduced last year that overtly sought to undermine free speech protections that have been well established by the United States Supreme Court, but this recent version's insidious effects are similarly troubling.
“Among other things, this bill would chill the speech of journalists as well as members of the public who criticize public officials ...," Kara Gross, legislative director and senior policy counsel of the ACLU of Florida said in a statement about the bill.
“The overly broad and vague language of this bill does not limit the legislation simply to journalists and the media. Private citizens who speak out on social media could be caught up in defamation lawsuits."
Worries about this particular bill run the ideological gamut: Americans for Prosperity, a conservative advocacy group, has argued the legislation might turn Florida into a haven for frivolous litigation. And even some right-wing commentators have figured it out: This law will apply for conservative whistleblowers and liberal ones alike.
The common theme here is obvious: Privileging the concerns of elected officials and subordinating concerns about good government. Protecting politicians while silencing their critics, if not outright punishing them. Corruption won't be literally legal — it might take a few more sessions before someone proposes that— but it'll sure feel like it all the same.
Nate Monroe is a metro columnist whose work regularly appears every Thursday and Sunday. Follow him on Twitter @NateMonroeTU.
This article originally appeared on Florida Times-Union: Nate Monroe: Lawmakers intent on making Florida the corruption capital
