The Commission and the Crime Committed - Case Study Example

Policy Report Introduction Public Corruption has been defined as the misuse of public or private office for personal gain, has been one of the main concern of the governments throughout history because of its increasing number of incident. The nature and scope of corrupt behaviour and the extent to which anticorruption measures are enforced, the phenomenon can be found at all times and within virtually every political system. Several incident of corruption has prompted the government to make necessary revisions and recalls on the policy about corruption. The desire to reduce or eliminate corruption was at the core of many governments. To avoid abuses of graft and corruption the government of different state has continuously review and study the policy regarding the corruption. Like in the State of Florida, Governor Jed Bush signed Executive Order 99-237 on September 15, 1999, establishing the Public Corruption Study Commission. To avoid unlawful use of the policy the Commission was tasked to review Florida and Federal current statutes and laws concerning public corruption, violation of ethical standards; conflicts of interest, malfeasance, misfeasance, and nonfeasance in office; bribery; and other forms of official misconduct. The Commission has held several meetings to evaluate the policy. In the State of Florida several incident of corruption resulting in the expulsion of officer on duty has reached the concern of the government. Since there is no particular policy involving the person committing the crime and the one giving the bribe, the government went on to review the policy. In the case of former state corrections Chief James V. Crosby Jr., he was accused of taking kickback from a prison vendor amounting to $130,000.00. He given enough time to pay for the amount but failed to do so. The judge sentenced him to be subjected to house arrest and after proven guilty of accepting kickbacks he was sentenced to be imprisoned for 8 years. The Commission and the Crime Committed A commission will be formed to be headed by the governor of the state. They will be the one to analyze and review the existing policy. The review includes the following areas of concern: current statutes and laws concerning public corruption; violation of ethical standards; conflicts of interest; malfeasance, misfeasance, and nonfeasance in office; bribery; and other forms of official misconduct. The policy on the corruption being committed in the case of Former State corrections Chief James Crosby Jr. will be reviewed. The policy involved in this case is the Federal law about the corruption of a government official. Even though this policy was not clearly defined, the case of Crosby was able to pursue. Based on the evidenced presented against Crosby it was clear that he committed corruption by taking kickbacks from the prison vendor. The only confusing about this case is that what policy or Federal law was being violated. The official being convicted of corruption means that he committed the Chapter 839 of the 1999 Florida Statutes. Chapter 839 - The Offences by Public Officers and Employees Chapter 839 of the 1999 Florida Statutes under title XLVI is the Offences by Public Officers and Employees. (1) The "Official Misconduct" as defined in Chapter 839.25, means the commission of the following act by a public servant, with corrupt intent to obtain a benefit for himself or herself or another or to cause unlawful harm to another: Knowingly falsifying, or causing another to falsify, any official record or official document. (2) "Corrupt" means done with knowledge that act is wrongful and with improper motives. (3) Official misconduct under this section is a felony of the third degree, punishable as provided in section 775.082 Penalties, and section 775.083 Fines. The charge of Corruption to Crosby maybe questionable but it appears to be legal and justifiable. The force removal of Crosby in position is the result of the violation of Chapter 839.04County officers not to speculate in county warrants or certificates.- (1) Any county court judge, clerk of the circuit court, sheriff, tax collector, property appraiser or their deputies, county commissioner, school board members, superintendent of schools, or any other county officer who buys up at a discount, or in any manner, directly or indirectly, speculates in jurors' or witnesses' certificates or in any warrants drawn upon the county treasurer for the payment of money out of any public fund of this state or of any county, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, and shall be removed from office. The amount given to him as kickback from Gainesville businessman who wanted a piece of the prison commissary business has inflicted him of the said crime. He was treated well during the investigation process and was given right to defend himself. Commission Recommendations Based on the case of Crosby the commission will able to analyze the policy and from there they will make the necessary recommendation on revisions and emissions of part of the policy. The chapter 839 of the Florida Statues has several ethical issues involve on it. The fines as stated in 775.083 include the following: (1)A person who has been convicted of an offense other than a capital felony may be sentenced to pay a fine in addition to any punishment described in s. 775.082; when specifically authorized by statute, he or she may be sentenced to pay a fine in lieu of any punishment described in s. 775.082. A person who has been convicted of a noncriminal violation may be sentenced to pay a fine. Fines for designated crimes and for noncriminal violations shall not exceed: (a) $15,000, when the conviction is of a life felony. (b) $10,000, when the conviction is of a felony of the first or second degree. (c) $5,000, when the conviction is of a felony of the third degree. (d) $1,000, when the conviction is of a misdemeanor of the first degree. (e) $500, when the conviction is of a misdemeanor of the second degree or a noncriminal violation. (f) Any higher amount equal to double the pecuniary gain derived from the offense by the offender or double the pecuniary loss suffered by the victim. (g) Any higher amount specifically authorized by statute. If a defendant is unable to pay a fine, the court may defer payment of the fine to a date certain In the Crosby case he was asked to pay the amount of $130,000.00 as penalty but failed to pay the said amount and was further convicted by the judge presiding the case. The conflict in this case is the amount being asked to pay. The policy should be clearly evaluated on the penalties to be imposed on a certain case. The ethical issue may arise from this and should be proven by the issuer of the policy to be justifiable. Cases Involving Chapter 839 and the Revision of Chapter 838 In Case No. 2D04-1253, State of Florida William Clement challenges his conviction for official misconduct in violation of section 839.25, Florida Statutes (1999).1 Because it was concluded that section 839.25 does not apply to candidates for public office, they reverse his conviction. 1 Chapter 2003-158, section 5, Laws of Fla., repealed section 839.25 and added section 838.022, effective October 1, 2003. This resulted in the confusion as to whether the candidate for the public office is not included in the chapter or not. This resulted in the revision of the chapter 839 for the inclusion of such term in the policy. The chapter 839 was renumbered into 838.022 the new statute expressly excludes a candidate who does not otherwise qualify as a public servant from the definition of "public servant" in the official misconduct statute. Accordingly they reverse Clement's conviction for official misconduct. This resulted in the revision of section 838.022. A new s. 838.022 is proposed, incorporating provisions from the current s. 839.25 and moving them to the new section and deleting the current s. 839.25. It adds the offense of a public servant doing any action to obstruct, delay or prevent the communication of information relating to the commission of a felony that directly involves or affects the public agency or public entity served by the public servant. Under the new s. 838.022 it would also be unlawful for a public servant to corruptly conceal or destroy or alter an official record. Public servants who refrain from performing a mandatory constitutional duty could also be punished under s. 838.022. The Commission added "mandatory" to be clear that most acts done by public servants - because the acts are discretionary - would not be covered by s.838.022. Although the Commission separately considered amending s. 112.317 to make it a crime to intentionally make any false, fraudulent or misleading statement on a financial disclosure form required by that section, the Commission agreed such behavior would be addressed by the proposed new s. 838.022. With this in mind, no separate revision of s. 112.317 is proposed. In keeping with the Commission's determination that Florida should have "zero tolerance" for criminal misconduct by public servants, violations of the proposed new s. 838.022 are second-degree felonies. Implementation: Section 1. The Division of Statutory Revision shall change the title of Chapter 838, Florida Statutes, from "BRIBERY; MISUSE OF PUBLIC OFFICE" to "OFFENSES BY PUBLIC SERVANTS" Section 2. Section 838.010, Florida Statutes, is created to read : 838.010 Short title.-This chapter shall be known as the "Citizens' Right to Honest Government Act." Section 3. Section 838.014, Florida Statutes, is substantially revised to read: 838.014. Definitions.- For the purposes of this chapter: (1) "Benefit" means gain or advantage, or anything regarded by the person to be benefited as a gain or advantage, including the doing of an act beneficial to any person in whose welfare he or she is interested, including any commission, gift, gratuity, property, commercial interest, or any other thing of economic value. (2) "Corruptly" or "corrupt intent" means done with knowledge that the act is wrongful and with improper motives. (3) "Harm" means pecuniary or other loss, disadvantage, or injury to the person affected, including loss, disadvantage, or injury to any other person in whose welfare he or she is interested. (4) "Public servant" means: (a) Any officer or employee of a state, county, municipal or special district agency or entity; (b) Any legislative or judicial officer or employee; (c) Any officer, director, partner, manager, representative or employee of a non-governmental entity that is authorized by law or contract to perform a governmental function or provide a governmental service on behalf of a state, county, municipal or special district agency or entity; (d) Any person who holds an office in a political party or political party committee; (e) Any person, except a witness, who acts as a master, receiver, auditor, juror, arbitrator, umpire, referee, consultant, or hearing officer while performing a governmental function; or (f) A candidate for election or appointment to any of the foregoing positions, or an individual who has been elected to, but has yet to officially assume the responsibilities of, public office. Adjustment of Chapter 839 The reviewed done in the existing provision in Chapter 839 has lead to the recommendations for removal of Section 839.25, which has been superceded by the recommendations made by this Commission in its revision of Chapter 838. The Commission believes that many of the offenses in Chapter 839 are archaic and may be in need of repeal. The decision regarding whether to retain or repeal these remaining offenses should be made after careful review of those provisions to determine if there remains any value in retaining them. Ethics The cases presented in chapter 839 and 838 include ethical issues that needs further assessment. At present Ethics Commission is engage in educating and training of individual involve. Various associations and groups of public officials, employees, and attorneys provide ethics education to their members at conferences and seminars, using instructors of their choice. Still further education is needed. Usually cases are re appeal because of the ethical involve particularly those involving the public officials. Public officials conduct has been the result of either of misunderstanding of the requirements of the ethics law or of erroneous advice of counsel. It is best to have proper education on ethics and law to avoid confusion and misunderstanding. Both the criminal and the ethics processes should work in harmony, with criminal law enforcement and the criminal laws assuming the highest priority, and the ethics process handling the cases it is best suited for. In several different aspects, the criminal laws and processes interact with the ethics laws and the ethics process, creating inconsistencies that should be resolved. Conclusion This report is to be presented in order to help the commission to revise and reviewed the policy involved in cases. Ethical issues involve are important to discuss to avoid misunderstanding and further questioning on the cases. As the ethics laws are "strictly construed," because they are penal in nature, virtually any ambiguity in a statute will be construed in favor of the public official. Therefore, the ethics laws must be written to specifically address ambiguities that have arisen. In addition, meaningful enforcement of the laws is enhanced when the laws clearly identify appropriate standards of conduct. Federal law prohibits federal employees from leaving their public position and then participating in a matter in a way that is adverse to the former agency where the employee had participated personally and substantially in the employee's official capacity. Attorneys are subject to a similar restriction, under Bar regulations. The Code of Ethics should cover the same situations. Otherwise, for example, a Department of Revenue employee involved in a taxpayer case could quit the Department and work for the taxpayer, against the Department, on the same case. The beneficiary of such revision should be the people of the state involved. The people of Florida should have a honest government officials and employee. The acceptance of the revised law will benefit the people who elected the officials in position. The revised policy should be in accordance of the Ethics Law. Reference: http://www.adb.org/Documents/Policies/Anticorruption/anticorrupt200.aspp=antipubs Florida Department of Law Enforcement, Florida Public Corruption Study Commission http://www.fdle.state.fl.us/publications/corruption_study/corruption_report.htm Florida Case Law & Florida Court Opinions - Florida Law http://www.romingerlegal.com/floridacourts/court_opinions3/2d04-1253.html The 1999 Florida Statutes (2007) On line Sunshine http://www.leg.state.fl.us/statutes/index.cfmApp_mode=Display_Statute&Search_String=corruption&URL=Ch0775/Sec084.htm#0775.084 Read More