A Times Editorial

Feeble ethics

The Legislature isn't making it any better for the Florida Commission on Ethics, which may be stuck in pursuing an ethics complaint concerning the House Speaker's just-departed chief of staff.

© St. Petersburg Times, published May 25, 2000

Each spring predictably finds the Florida Commission on Ethics pleading for the authority to do a better job and the Legislature refusing. So it went again this year, despite the felonious examples of four former legislators toiling their way through the federal criminal justice system.

The Legislature did establish an automatic fine system for public servants who fail to make financial disclosure on time, though the House killed the $194,000 budget item that the commission said it needed to put this into effect.

The most important reform was pronounced dead at the outset when Speaker John Thrasher made it clear that, no matter what, the House would not let the ethics commission initiate its own investigations. It must continue to wait, like some genie in a bottle, for a citizen's sworn complaint to uncork it. Even then, it cannot follow new leads that may open up.

Was it coincidence, or something more, that the Speaker's office itself became the focus of an ethics complaint whose outcome may dramatize the ethics law's feebleness and futility?

The accusation, which the commission must still treat as an official secret even though the complainant told the world, targets Thrasher's just-departed chief of staff, Stephen R. MacNamara.

MacNamara is a lawyer who also holds a curiously tenured professorship in communications at Florida State University. He took unpaid leave to serve two separate six-month stints in Thrasher's office, first as policy adviser and then as chief of staff, earning $127,500 each time. He was hired as a contractor, however, rather than an employee, a distinction that is significant for two reasons:

He and Thrasher contend it left him free to represent Suwannee American Cement Co. in its controversial and ultimately successful application to construct a cement plant near the Ichetucknee River and Ichetucknee Springs State Park. (MacNamara wasn't actually drawing the Legislature's money at the time, but it is undisputed that he was already acting as Thrasher's chief of staff.)

It may prevent the ethics commission from acting on a sworn complaint from Anne Barkdoll, a Gainesville environmentalist, who charged in April that MacNamara's side deal raised "serious questions about conflict of interest and preferential treatment" on the cement company's behalf.

In docketing Barkdoll's complaint, the commission would have to contend with its own 1977 opinion that the conflict of interest laws for public officials do not apply to contract employees. The Legislature responded by including part-time county and city attorneys, but not private-service providers at the state level. So the commission may be forced to dismiss the MacNamara complaint without even investigating the allegations.

There may be a side issue as to whether MacNamara should have registered as an executive-branch lobbyist. Though registration is not required of a lawyer who represents a client "in a formal administrative proceeding," there are plausible questions as to whether MacNamara's actions went beyond that. But Barkdoll says she did not cite the registration issue in her complaint "because of the loopholes," and the law, thanks in large part to Thrasher, would still forbid the commission from opening that inquiry on its own.

The law is bound by such technicalities. As public opinion is not, this controversy could have contradictory outcomes.

There could be few worse places to situate a cement plant than 3 miles upwind of one of Florida's most pristine and popular waterways. The plant would burn coal and old tires around the clock, generating hundreds of tons of mercury, carbon monoxide and other pollutants.

Last June, with the application pending, Environmental Protection Secretary David Struhs and Gov. Jeb Bush took a canoe trip down the Ichetucknee. Soon after, Struhs said he was denying the permit because of the deplorable environmental record of the company's corporate parent, road-builder Anderson Columbia. (The company and its people are faithful to political obligations, however, having given $207,500 to the Republican Party of Florida before the 1998 election and $7,000 since.)

Struhs changed his mind -- or had it

changed for him -- following secret negotiations in which Thrasher's chief of staff moonlighted as an attorney for Suwannee American. It was a done deal before environmentalists had an opportunity to object. The settlement called for Anderson Columbia to admit past environmental sins, put $1-million into a river protection trust, and sell -- that's right, sell -- one of the company's limerock mines to the state for at least $23-million, so that the mine, at least, would no longer be a source of pollution.

As a state agency, the DEP lives or dies by the whims of the Legislature. Though McNamara may believe he compartmentalized his conflicting roles, the better question is whether agency officials saw only a private lawyer across the table, or the speaker's chief of staff as well.

In any case, MacNamara did not confine himself to writing briefs. To this newspaper, he conceded "answering some questions" for Struhs. The Tampa Tribune subsequently reported that MacNamara had lobbied three junior officials on Suwannee American's behalf. According to that account, Eva Armstrong, director of the DEP's division of state lands, and Bob Ballard, DEP's deputy secretary for land and recreation, said they were called to the speaker's office suite to discuss the case with MacNamara. The newspaper also found that MacNamara arranged for an aide to Comptroller Robert Milligan to call him at the speaker's office so MacNamara could ask how Milligan would vote on the mine purchase. (Milligan, Insurance Commissioner Bill Nelson and Attorney General Bob Butterworth were on the losing side of a 4-3 vote.)

Armstrong's account indicated that she thought she was dealing with MacNamara as House chief of staff and that she did not recall whether she knew he was working for Suwannee American.

If he did not tell her or the others, that could be a matter of interest to the Florida Bar, which it should make a note to pursue. A Bar rule provides that if a lawyer knows "or reasonably should know" that an unrepresented person "misunderstands the lawyer's role in the matter," the lawyer must "make reasonable efforts to correct the misunderstanding."

The largest question of all is why Thrasher, as steward of the people's House, indulged MacNamara's conflicted role. He shouldn't have wanted any of his people within sight, sound or smell of Anderson Columbia, whose unreported payments figured in the tax evasion convictions of former Speaker Bo Johnson of Panama City and former Rep. Randy Mackey of Lake City.

Thrasher doesn't have to answer to the voters for any of this. He's term-limited, and running for nothing else this year.

That's the news from Tallahassee. We wish we could hold out hope that it will improve, but that would be terribly naive.

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