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Broward County Attorney Defends "Glitch" Amendments

    Broward County Attorney Jeff Newton, widely criticized for offering a series of amendments to the county  ethics ordinance, including in my column, counters that he did not intend to "subvert ethics reform." He writes:

   

    I just read your latest column on the alleged attempts to subvert ethics reform.  I am both amazed and saddened that a respected newspaper would perpetuate such falsities without any attempt to verify the actual facts.

    No one is seeking to subvert ethics reform.  As County Attorney, I am responsible for identifying constitutional and legal problems and helping the County (and its taxpayers) avoid the significant legal liability that may result therefrom.  The vast majority of the proposed code of ethics is legally and constitutionally valid, and the entire proposed code will be voted upon tomorrow by the County Commission.

    However, portions of the proposed code are problematic.  Some provisions are unclear or contain analytical gaps, thereby creating the possibility of unintentional violations and judicial invalidation.  A few provisions clearly exceed the scope of the Ethics Commission’s authority or are very likely unconstitutional.

    The proposed "glitch ordinance" focuses on the unclear provisions and unintended gaps in the proposed code of ethics.

    Additionally, based on prior legal opinions issued by my office, we prepared proposed amendments to the glitch ordinance that could address the scope and constitutional problems.  The draft amendments do nothing more than place all relevant issues on the table to enable an open, public discussion and subsequent decision-making by the County Commission.  It is unclear why anyone would view such public discourse as improper.

    Your statements about the "glitch ordinance" are misleading.  Merely by way of example, you imply that, under the glitch ordinance, County Commissioners could continue indefinitely to serve on selection committees.

    To the contrary, while Commissioners would complete their service on existing committees over the next several months, which is necessary to prevent delays and additional costs in County procurement, Commissioners could not be appointed to any selection committee in the future.   What continues to be missed in columns such as yours is that there is a difference between "popular” and “constitutional."  For example, Arizona’s recent law designed to combat illegal immigration enjoys significant popular support, yet the core of the new law was recently preliminarily enjoined by a federal court concerned with its potentially discriminatory and unlawful impact.

    The Constitution, and in particular the Bill of Rights, is designed to protect the fundamental rights of the individual, not the popular will of the majority.

    You imply that the County’s initial decision to seek judicial guidance was somehow novel and improper, and that the court action was scuttled because of public outrage.  That too is untrue.  The County ended up not seeking a court ruling because outside counsel (1) did not believe we could get a ruling by August 10; (2) believed the litigation would cost substantially more than initially expected; and (3) did not believe going to court was necessary given that the legal and constitutional issues were clear.  To suggest that the potential court action was designed to allow the proposed code of ethics to "languish [in the courts] until after the fall elections" is pure fiction.

    You quote Robert Wolfe, who served on the Ethics Commission, as being "appalled, disgusted [and] fed up."  What you neglect to state is that Mr. Wolfe was advised on multiple occasions that certain provisions of the proposed code of ethics were invalid and should not be included.  Mr. Wolfe’s response at the time was to ignore that advice and dare anyone to reject any part of the proposed code.  Had Mr. Wolfe and others on the Ethics Commission considered themselves bound by what the voters of Broward County unmistakably asked them to do, and accepted the consistent legal advice they received during the drafting process, there would be little controversy about the proposed code of ethics.

    Finally, I would be remiss if I did not mention what I find to be particularly ironic.  You and others freely and baselessly disparage me and certain elected officials knowing that you enjoy broad protections enshrined in the First Amendment.  We have opined that the First Amendment also protects certain lobbying activities that would be prohibited under the proposed code of ethics, notwithstanding that broad lobbying prohibitions may be popular or expedient.  I hope and trust that, in the future, those in your position speak fairly on important First Amendment concerns instead of abdicating your vital press function merely to make headlines.

  

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