BILL BARNETT MAYOR June 20, 2018 Mr. Raymond Christman 267 61h Street North Naples, FL 34102 Dear Mr. Christman, It was brought to the attention of City Council that your appearance before City Council on May 2, 2018, while acting as an appointed member of a city advisory board was apparently in violation of the City of Naples Code of Ethics Law. You were speaking on behalf of Ethics Naples, Inc. to urge adoption of a resolution to place a charter amendment on the ballot. City Council authorized me to communicate with you in writing to inform you of the alleged violation and to provide you an opportunity to respond to the allegation. Please reply in writing so that I may share with City Council. Included with this letter is a June 5, 2018 memorandum authored by the City Attorney detailing the law and the violation, and a copy of e-mail correspondence between you and the City Attorney, dated December 19, 2017, informing you of the law restricting board members from personally representing another group or business entity before City Council. The December correspondence occurred prior to your appointment to the Community Redevelopment Agency Advisory Board on December 20, 2017, and prior to you informing the City Clerk on December 20, 2017 that contrary to your December 19, 2017 e?mail, you did request appointment to the Advisory Board. Sin ill Barnett, Mayor City of Naples PO. BOX .1455 N-?il?lizS. l?I 213- Hill} rZWa 2H ?2301 \?laturl?ull'r! 0 ROETZEL FOCUSED ON WHAT MATTERS TO YOU TO: Hon. Bil Barnett, Mayor Naples City Council FROM: Robert D. Pritt, City Attorney Board Certified City, County, Local Government DATE: June 5, 2018 RE: Potential Ethics Code Violation Issues 1. Whether a City advisory committee member or his client has violated the current City Ethics Code. 2. if so, what, if anything can legally be done about it? Summary 1. If the City advisory committee member was retained by the client or business associate when he appeared in front of the City Council, on behalf of the client or employer, and especially if he was a paid consultant or employee, it is likely that the member may have violated the City Ethics Code. 2. Violations of the City Ethics Code by an advisory committee member can range from removal from a committee, to civil or even criminal penalties, depending upon the severity of the violation, and upon whether intent as opposed to carelessness, can be determined. Background A question has been raised by Council members (separately) as to whether a member of the Community Redevelopment Agency Advisory Board (CRAAB) may have violated the City Ethics Code (Chapter 2, Article lX, Secs. 2-971 through 2983, Code of Ordinances, specifically Sec. 2-974 and (2), when he appeared before the City Council on May 2, 2018, to urge adoption of a resolution to place a charter amendment on the ballot. On that date, he was listed with the City Clerk as Chairperson of a political action committee (PAC) and was its Registered Agent. He is currently listed as Executive Director of the PAC, which according to its webpage, is a 50104 political action committee established solely to promote a better ethics policy for the City of Naples. It is not known by this writer whether he is paid or a volunteer. Code of Ethics RALAW. COM 0 ROETZEL FOCUSED ON WHAT MATTERS TO YOU MEMO Page 2 of 5 The City of Naples Code of Ethics has origins prior to 1994. It was extensively amended in 1998, 2003 and 2017. In many respects it mirrors the State of Florida Code of Ethics, but in some respects is more strict than that code. State law allows local governments to be more strict than state law, but not less strict. One of the provisions of the City Code of Ethics is its prohibition against allowing any member of the Council or any member of any board, commission or committee from appearing in front of Council or any other board, commission or committee on behalf of him or herself or any person or organization. That provision has been in the City Code of Ethics at least since 1998, and this office has routinely advised City board members, including the one in question, that while serving on a board, commission, committee or Council, they cannot represent clients before the Council. The actual relevant language (excerpts) is as follows with emphasis added: Sec. 2?972. Definitions. Advisory board member means any person appointed to any city board, commission, committee, or authority by the city council. Principal by whom retained means an individual or entity, other than an agency as defined in F.S. that for compensation, salary, pay, consideration, or similar thing of value, has permitted or directed another to act for the individual or entity, and includes, but is not limited to, one's client, employer, or the parent, subsidiary, or sibling organization of one's client or employer. Business associate means any person or entity engaged in or carrying on a business enterprise with a public officer, public employee or candidate, as a partner, joint venturer, corporate shareholder where the shares of such corporation are not listed on any national or regional stock exchange, or co-owner of property. Business entity means any corporation, partnership, limited partnership, company, limited liability company, proprietorship, firm, enterprise, franchise, self- employed individual, association, trust, or political action committee whether fictitiously named or not, doing business in this state. Principal by whom retained means an individual or entity, other than an agency as defined in F.S. that for compensation, salary, pay, 0 ROETZEL FOCUSED ON WHAT MATTERS TO YOU MEMO Page 3 of 5 consideration, or similar thing of value, has permitted or directed another to act forthe individual or entity, and includes, but is not limited to, one's client, employer, or the parent, subsidiary, or sibling organization of one?s client or employer. Public officer means any and all elected officers, advisory board members, city managerial employees, and the city attorney whether serving as an employee/in- house counsel or as outside counsel. Represent or representation means actual physical attendance on behalf of a client in a city proceeding, the writing of letters or filing of documents on behalf of a client, and personal communications. Sec. 2974 While serving as a public officer or employee, no public officer or employee shall personally represent another person, group, or business entity before the governmental body. This provision, however, is not intended to preclude and shall not preclude an elected officer or advisory board member from interacting with and coordinating with city staff as part of such elected officer?s or advisory board member's representation of another person, group or business entity in the normal course of building permit applications, interpretations from staff relating to construction codes, conversations with staff relating to construction codes and similar functions conducted in the normal course of business. An elected officer or advisory board member shall not, however, be permitted to pursue a land use or land development order or represent, another person, group or business entity, in a land use or land development process. (emphasis added). Sec. 2-979. - Complaints. Information concerning any incident or situation which demonstrates that any public officer may have engaged in conduct contrary to this article may be fon/varded by complaint affidavit to the state attorney for the 20th Judicial District for investigation, referral to another agency, or other appropriate action. Alternatively, such complaint may be presented to the police department or to the county sheriff in the same manner in which criminal complaints are filed. Alternately, if the complaint concerns an advisory board member, such complaint may be presented to the council. Alternatively, if the complaint concerns an employee, such complaint may be presented to the city manager. 0 ROETZEL FOCUSED ON WHAT MATTERS TO YOU MEMO Page 4 of 5 In an event under subsections or the recipient of the complaint may forward it to a qualified private individual who is not an elected officer, an appointed officer, or city employee, to investigate and make a report, or the requester may request that the Chief Judge of the 20th Judicial Circuit appoint an independent special magistrate to hear and determine whether there has been a violation and to make a recommended order for council's, or the city manager's as the case may be, final action. The hearing is not a Chapter 120 proceeding (Administrative Procedures Act) but such procedures shall govern the conduct of the hearing. Sec. 2?983. Penalties and enforcement. A violation of this article is a breach of public trust, specifically: (1) A willful and corrupt violation of this article is an offense against the city and subjects the violator to the criminal penalties set out in subsection 1-15(a) of this Code. (2) Additionally, any member of the city council, advisory board, or city officer or employee who willfully and corruptly violates this article shall be guilty of malfeasance in office or position and shall forfeit such person's office or position. (3) A careless, but not willful and corrupt violation may subject the violator to a non-criminal fine in an amount not to exceed $250.00, to be imposed by the county coun. (4) A careless, but not willful and corrupt violation may subject the violator to removal from a board by the council; or if an employee, discipline by the city manager up to and including discharge. (5) In addition to any other penalty, violation of this article with the knowledge, express or implied, of the person or corporation, or entity contracting with, or making a sale to or purchase from, the city, shall render the contract or sale voidable by the city manager or the city council. Conclusion This office does not investigate complaints. Council can take any of the relevant options above. However, since the potential violation deals with a board member, consideration can be given for removal from the Committee under the City?s removal ordinance, Sec. 2?405. Removal must be by a majority of Council. It may be with or without cause. That would have to be with notice to the member and an opportunity for response. 0 ROETZEL FOCUSED ON WHAT MATTERS TO YOU MEMO Page 5 of 5 NOTE: This memo is based upon the existence of facts outlined above. If any fact is not correct or complete, the opinions contained herein are subject to change. In each of the options herein there would be an opportunity for the affected person(s) to respond or to be heard on any relevant issue. Respectfully submitted: Ro?e'rt D. ?Pritt City Attorney 12667201 _1 0167630001 - 4:58:00 PM From: christmanr Sent: Tuesday, December 19, 2017 8:05 PM To: Bob Pritt Cc: Bill Barnett; City Council; City Clerk; City Manager Subject: Re: Boards-Ethics Dear Bob: Thank you for your e-mail describing these potential concerns regarding my serving on the CRAAB and simultaneously continuing my role with Ethics Naples. Candidly. i had not previously thought of this as a potential con?ict, given that Ethics Naples was an independent non?pro?t concerned with a referendum in next year's election. while the CRAAB involved ongoing issues facing the City and City Council. Nonetheless, think it is important that there not be even a perception of con?ict of interest on an appointment like this, and its potential impact on Ethics Naples. The issue is not with my ability to appear before Council on any matter, but more broadly any perceptions that positions I might take on the CRAAB would be in?uenced by my role with Ethics Naples. therefore would like to withdraw my application to serve on the CRAAB. My hope, of course. is that Ethics Naples will be successful in passing the ethics referendum next August. Subsequent to that, i also hope there will be other opportunities for me to serve the City of Naples in some appropriate role. Best regards, Ray Christman On Tuesday, December 19. 2017 2:44 PM. Bob Pritt wrote: Dear Mr. Christman: I think you are asking to be considered for a Board position with the City at tomorrow?s council meeting. You are representing the PAC called Ethics Naples. Attached is an excerpt of the current Ethics Codefor the City concerning: ?continuing or frequently recurring con?icts (1) (which is essentially the same as state law), and ?restrictions against board members appearing before Council (which is City Code). I assume you want to be aware of this (especially ahead of time. We have had persons appointed to boards who believed that they could appear before Council on other items, only to ?nd that they could not. i am authorized by contract to assist any council or board member ahead of time in being aware of con?icts or situations that may lead to potential con?icts as an aspect of preventive law. This is not to say that you cannot serve on the board, but only to indicate that you may be giving up your ability to then appear before council while on the board. While this may seem strict, it is apparently consistent with the direction supported council as recently as this year, and by many in and out of of?ce. Let me know if you have any questions or comments. Robert D. Pritt City Attorney 2-972 Naples Code of Ordinances. Pubu'r o?iter means anyand elected of?ce rs, anytsory board members, city managerial employees, and the city attorney whether sewing as an employee/in-house counsel or as outside counsel. 2?974 Naples Code of Ordinances. Con?icting employment or contractual relationship. No elected city officer or city managerial employee shall have or hold any employment or contractual relationship with any individual or business entity which is doing business with, or routinely see ks zoning, permitting, or inspection approval from the department of the city with which the elected of?cer or city managerial employee is af?liated. Excluded from this provision are those organizations and their officers who, when acting in their of?cial capacity, enter into or negotiate a collective bargaining contract with the city. Nor shall a public of?cer or employee have or hold any employment or contractual relationship that will create a continuing or frequently recurring con?ict between the of?cer's or employee's private interests and the performance of the of?cer?s or employee's public duties or that would impede the full and faithful discharge of the of?cer's or employee's public duties. (2) While seem; as a pubiic wire: or employee, no public officer or emplwee shall personafty represent. gnome: person. group. or business entity before the governmental body. This provision, however, is not intended to preclude and shall not preclude an elected officer or advisory boa rd member from interacting with and coordinating with city staff as part of such elected officer's or advisory board member's representation of another person, group or business entity in the normal course of building permit applications, interpretations from staff relating to construction codes, conversations with staff relating to construction codes and similar functions conducted in the normal course of business. An elected of?cer or advisory board member shall not, however, be permitted to pursue a land use or land development Order or represent, ?another person, group or business entity, in a iand use or land development process.