Lots of Wrongs, Little Right
How many wrongs does it take to make a right?<br>
<br>
According to <a href="http://www.sun-sentinel.com/news/broward/fl-wasserman-rubin-resigns-cha…; target="”_blank”">a
<i>Sun-Sentinel</i>
article</a>, a county commissioner in Broward County, home
of Ft. Lauderdale, resigned on Tuesday after being arrested on seven
counts of <a href="http://www.flsenate.gov/statutes/index.cfm?App_Mode=Display_Statute&Sea…; target="”_blank”">unlawful
compensation</a> (§838.016(1)) for ‘‘improperly advocating for,
and
benefiting from, numerous government grants written by her husband ...
on behalf of the town of Southwest Ranches."<br>
<br>
The Florida Commission
on
Ethics reprimanded her in 2007 for one of three of the actions
detailed in <a href="http://media.miamiherald.com/smedia/2010/07/07/09/Wasserman_Rubin.sourc…; target="”_blank”">the
arrest
warrant</a> and <a href="http://media.miamiherald.com/smedia/2010/07/07/09/Wasserman_Rubin_Aff_A…; target="”_blank”">the
affidavit
to arrest</a>, and she had to pay a civil penalty and
restitution of $15,000.<br>
<br>
<b>Double Jeopardy?</b><br>
It would seem unfair to try her again, in criminal court, for the same
misconduct she was already tried for before the state EC. It may not
count legally as double jeopardy, but it seriously undermines the
government ethics process if it is seen by officials as only a first
step in a criminal process rather than standing on its own as the
enforcement of a different set of laws.<br>
<br>
On the other hand, when the commissioner entered into a settlement
agreement with the EC, she could have told the EC that her husband had
received not just one bonus of $15,000 for his writing of successful
grants for Southwest Ranches to get from Broward County, but instead
three bonuses. Not only is this the appropriate thing to do in an
ethics process, it is also likely that had the criminal authorities not
discovered these further, undisclosed bonuses, they would not have
arrested the commissioner. Without those bonuses, there would have been
conflicts of interest, but no criminal case.<br>
<br>
In other words, it is not actually double jeopardy, but the
commissioner's hiding of the other bonuses that appears to have led to
her arrest. It appears to be her failure to fully and honestly deal
with the issue before the EC that undermined the government ethics
process in her case.<br>
<br>
<b>Was Arrest the Best Alternative?</b><br>
However, the best way to have dealt with the matter, I think, would
have been for the criminal authorities, who began investigating the
matter immediately after the EC's decision in 2007, to have turned
their report over to the EC. Even though there is a crime that can be
applied to what occurred, it's really intended for bribery, not for
conflicts of interest and failure to recuse. Since the EC had already
enforced a similar matter, and would know that the commissioner
withheld relevant information, it would be in a better position to
quickly dispose of the matter at a cost less than that of the criminal
process.<br>
<br>
In addition, because the criminal provision is not as clearly relevant
to the matter as the ethics provision, and the ethics provision has
already been enforced against the commissioner, with her agreement,
there is a far greater risk that a court might find her innocent. This
is not a risk worth taking.<br>
<br>
The commissioner's political career is at an end anyway, due to her
Parkinson's disease. She is 63, and her misconduct occurred in 2003.
She poses no danger to society, and it would be senseless to send her
to prison. So either way, the penalty would likely be monetary.<br>
<br>
But the commissioner isn't saying that the matter should go before the
EC instead. Her only concern seems to be insisting on her innocence. In
<a href="http://media.miamiherald.com/smedia/2010/07/06/14/DWR_-_LOR.source.prod…; target="”_blank”">her
letter of resignation</a>, she says that she intends to "vigorously
defend myself from these charges and see myself vindicated in court."
She expects to work full-time "to prove my innocence."<br>
<br>
<b>A Long History of Unethical Conduct</b><br>
On the other hand, there was a long series of failures to deal
responsibly with her conflicts, and she appears to have insisted there
was nothing wrong with her using her office to further her husband's
career. Even on the occasions where she recused herself from voting,
she participated in the matters.<br>
<br>
And the conflicts apparently go back to before the couple was married.
According to Buddy Nevins' <a href="http://www.browardbeat.com/some-thoughts-on-diana-wasserman-rubin/" target="”_blank”">Broward
Beat blog</a>, in 1995, when the commissioner was a member of the
school board, the school board gave a contract to her then boyfriend.
And soon after she was elected to the county commission in 2000, her
husband got jobs from two companies that did business with the
commission. It appears that the conduct for which she was arrested is
only part of a long-run failure to deal responsibly with her conflicts
and to misuse her office in the interests of her own household.<br>
<br>
And then, when the state EC was handling the matter, she appears to
have made no offer to put all the facts on the table so that it could
all be done with and put behind her. It is her fault, more than anyone
else's, that this old matter is still alive.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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