Misguided (Part 2)

How the Miami-Dade Commission on Ethics' rejection of longstanding precedent could erode the public trust.

Note from Aesop: In part one of this two-part series, we looked at the weak rational underpinning of the Miami-Dade Commission on Ethics’ (COE) revised draft opinion regarding Dr. Castro’s business activities. In this post, we will look at something that is liable to prevail over any conclusion drawn from reason alone—precedent.

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Section 2-11.1(m)(1)

One can be forgiven for assuming that Dr. Castro’s ethical conundrum is novel, that it has suddenly swept the COE into uncharted waters. She is, after all, probably the first permit expediter in the county, possibly in the known universe, to hold public office. But in reality, the basic elements of the doctor’s dilemma are well explored, and when read through the lens of existing opinions, Section 2-11.1(m)(1) of the County Ethics Code is more than adequately equipped to address her inquiry. By the way, if that section seems familiar, that’s because it is precisely the same one cited by the COE in its revised Dr. Castro opinion:

In interpreting Section 2-11.1(m)(1) of the Miami-Dade Code, the Commission opined that an official and his or her private company employees may represent clients engaging with the official’s city, as long as the contacts or representation are limited to ministerial matters or simple informational requests.

Naturally, Section 2-11.1(m)(1) does not feature a subsection titled Permit Expediters, therefore addressing Dr. Castro’s inquiry requires a careful and informed interpretation of the relevant provisions. Fortunately, that interpretation already exists, thanks to the thoughtful opinions of previous iterations of the COE.

Hence why last month’s revised opinion is so bizarre. It is not just wrong, it is self-subversive. To be clear, I oppose the notion that the COE is politically motivated or acting in bad faith. That said, why it would reject decades of well-established precedent in favor of what appears to be a half-baked de novo interpretation of the County Ethics Code is simply beyond me.

Carreño (RQO 12-09)

The COE’s Charles Carreño (RQO 12-09) opinion is one of several that provide exceptional guidance regarding Section 2-11.1(m)(1).

In 2012, Mr. Carreño, a former Miami Beach employee, requested direction from the COE concerning post-employment limitations on his ability to work as a private contractor on City of Miami Beach capital-improvement projects. In its four-page opinion, the COE provided the following guidance (emphasis mine):

FINALLY, FOR YOUR GENERAL GUIDANCE, please note that three levels of lobbying  activities  have  been  distinguished  in  Ethics  Commission opinions:

Lobbyists in General. Under Sec. 2-11.1 (s), individuals with no current or recent employment relationship with a municipality are required to register as lobbyists when they advocate for items that will foreseeably be decided or recommended by any of the city's commissions or boards or by the city manager.

Post-Employment Restrictions. Under Sec. 2-11.1 (q), individuals formerly employed by a municipality within the past two years are prohibited from performing activities intended to influence any official determination, regardless of whether the determination will foreseeably be decided or recommended by any of the city's commissions, boards, committees or the city manager.

Unlike the general lobbyist ordinance, the post-employment ordinance expands the definition of lobbying to include advocating for decisions that may be made at the sole discretion of individual municipal personnel, not necessarily a voting body.

Current County or Municipal Officers and Employees. Under Sec. 2-11.1 (m) (1), individuals serving in municipal positions may not engage in any discussions whatsoever with officials, directors or staff of their respective governments on behalf of third parties.

This prohibition is the most expansive and extends to perfunctory meetings involving ministerial issues or information requests.

As you can see, the COE recognizes three distinct levels of lobbying activity: one for lobbyists in general, one for former county or municipal officers and employees, and one for current county or municipal officers or employees. Carreño was a former employee and thus fell under the second level, which is informed by Sec. 2-11.1 (q). Dr. Castro, as a sitting commissioner, falls under the third and strictest level. The one that applies to current county or municipal officers or employees. The one that emanates from Sec. 2-11.1 (m) (1), the same provision the current COE relies on in its revised opinion.

Note the unambiguous language of the third level: “no discussions whatsoever” and “extends to perfunctory meetings involving ministerial issues or information requests.” Frankly, folks, that right there is the ballgame for Dr. Castro.

Ahmed (RQO 12-10)

Even more relevant than Carreño is the COE’s Zafar Ahmed (RQO 12-10) opinion. In 2012, Mr. Ahmed, who was a current Miami-Dade County employee at the time of his inquiry, requested an opinion from the COE regarding whether he could “assist developers currently funded by the County with building violations cited by the County.” A very expediter-esque job description, one might say.

Once again, the COE noted the three levels of lobbying restrictions and issued guidance very similar to Carreño’s. However, and presumably because Mr. Ahmed was a current county employee, the COE added an extra touch of color with the following (emphasis mine):

IN CONCLUSION, the intent of Sec. 2-11.1 (m)(1) of the County Ethics Code is to prevent cronyism by leveling the playing field for citizens who interact with their  government.  Because a  County employee's mere presence on behalf of a client could result in an unfair advantage for the client, a County employee may not engage in any discussions whatsoever with County officials, directors or staff on behalf of third parties. This prohibition extends to perfunctory meetings involving ministerial issues or information requests.

Commendably, the COE articulates clearly the spirit of the County Ethics Code with phrasing such as “to prevent cronyism,” “leveling the playing field for citizens,” and “a county employee’s mere presence on behalf of a client could result in an unfair advantage.”

No guesswork. No vague concepts. No subjectivity. Nothing but an exceptionally bright line.

Charles Danger (RQO 04-33)

I am featuring this opinion in support of an alternative hypothesis, i.e. that the COE is not rejecting its own precedent but rather misinterpreting it. The inquiry that gave rise to this opinion involves highly analogous circumstances, and it stands to reason the current COE may have relied upon it.

In 2004, then-director of the Miami-Dade building department, Charles Danger, requested an opinion from the COE regarding the limitations imposed on former building department employees, including employees who had “left their County positions [to work] as consultants, permit expediters and employees of developers,” as well as “former Building Department employees have opened their own companies, whereby they assist individuals in resolving Building Code violations.”

Mr. Danger sought clarification on whether certain activities constituted lobbying, including “interacting with department staff in order to obtain building permits for clients.” The relevant portion of the COE’s guidance is as follows (emphasis mine):

Interactions with staff, which may include written or verbal communications, in order to obtain permits for clients, may be considered lobbying, dependent upon the circumstances. Certainly, former employees would be allowed to engage in interactions with staff which are ministerial in nature, such as filing permit applications, obtaining documents or requesting information about a permit.

…In previous opinions, the Ethics Commission determined that the two-year rule did not prohibit former County and city employees from providing information to government personnel, submitting applications and requesting and researching items as part of administrative requests since these actions were regarded as 'ministerial in nature. [See, RQO's 00-145; 01-38; 02-139]

However, activities that entail meetings with County staff to discuss the timeliness of plan reviews or requested modifications to plans or permits may be considered lobbying, and therefore, deemed impermissible under the two-year rule. This determination would be made on a case-by-case basis. For example, if the former employee, on behalf of a third party, meets with Building Department officials to explain the reasons [technical, structural, financial, etc...] for certain building plans and at the same time tries to persuade those officials to expedite the review process and/or offers to make some modifications to plans so that they can be approved more expeditiously, the former employee would be engaged in lobbying.

Note how this is an attempt to play devil’s advocate and feature an opinion that could potentially be construed as compatible with the guidance issued to Dr. Castro…and yet it still harms her cause. It clearly identifies as lobbying the type of activities that we know Dr. Castro, through her employees, engages in thanks to that enormous trove of emails featured in part one.

The Charles Danger inquiry entails only a level-one and level-two analyses, i.e. restrictions on general lobbyists and former employees. Thanks to the Carreño and Ahmed opinions, which were issued 10 years later, we know that level-three lobbying for current employees is subject to much tougher restrictions. Simply put, the ministerial vs. non-ministerial distinction is moot for current employees and officers. The Danger guidance, therefore, is largely irrelevant.

A minimal standard of conduct

The COE is a quasi-judicial body that can subpoena witnesses, administer oaths, take testimony, impose fines, and recommend disciplinary action. As such, it is expected to uphold its precedent—absent a compelling reason otherwise—in order to maintain consistency, stability, and predictability in its decision-making.

Indeed, the COE has relied upon its three-tier lobbying framework for decades. There is no question that Dr. Castro’s role as an elected official places her in the third and strictest level, which the current COE acknowledges by citing Sec. 2-11.1 (m)(1) as the controlling provision in its revised opinion. Where the COE goes astray, however, is in its interpretation of that provision, as the ministerial carveout that is available to general lobbyists is explicitly rejected for current municipal employees or officials.

In the final analysis, it is the COE’s duty to protect the public trust, not gamble with it. When it doubt, it should always err on the side of caution. Here is the COE articulating its own version of the precautionary principle in Carreño:

IN CONCLUSION, the Ethics Commission emphasizes that the County Ethics Code represents a minimal standard of conduct for those who have served in government…

…former employees should carefully consider the totality of the circumstances before taking any action that could possibly erode the public's trust.

A ‘minimal standard of conduct.’ In other words, when it says current elected officials should avoid perfunctory meetings with staff that involve ministerial issues or information requests, it means, “at the very least.” And when it uses phrases like ‘carefully consider the totality of circumstances’ and ‘possibly erode the public’s trust,’ what it really means is, “if what you are thinking of doing is even remotely iffy, don’t do it.”

That is what makes the COE’s longstanding precedent so very wise. It sees preclusion as a way of avoiding punishment. Moreover, it implicitly acknowledges an important and palpable reality, to wit: that influence can transcend mere acts and become a constant state, a background condition that one cannot escape regardless of one’s intent. When a powerful ship sails, the waves part in deference.

In an article ironically titled “Ethics Commission clarifies rules for elected officials doing business in their city,” (“Ethics Commission blurs rules” would have been more accurate) the Miami Herald quotes COE board member Nelson Bellido as saying, “The goal here is not to punish.” With the utmost respect to Mr. Bellido, the goal here should be to accurately interpret the County Ethics Code, respect precedent, provide useful guidance, and safeguard the public trust. Dr. Castro was not conscripted into public service. She was not forced to run for city commissioner. She voluntarily and eagerly pursued that position. Perhaps she should have “carefully considered the totality of circumstances” before doing so.

Sec. 2-11.1 (m)(1) of the County Ethics Code strictly prohibits elected officials and their employees from engaging with staff on behalf of clients. This prohibition extends to perfunctory meetings involving ministerial issues or information requests. Full stop.

The COE should revert to its original guidance. Anything short of that will encourage cronyism and erode the public trust.

Coe Carreno Opinion 12 09

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Coe Ahmed Opinion #12 10

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Danger Coe Opinion 04 33

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