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HomeMy WebLinkAbout01-30-2008 Brenda Brown Continuing to Serve on the Tuskawilla Lighting and Beautification District Advisor Committee ("TLBD")kri aftlivan JAN 3 1 2008 CITY OF WINTER SPRINGS OFFICE OF THE CITY CLERK BROWN, GARGANESE, WEISS & D'AGRESTA, P.A. Debra S. Babb-Nutcher Joseph E. Blitch Usher L. Brown' Suzanne D'Agresta' Anthony A. Garganese, J.W. Taylor Jeffrey S. Weiss 'Board Certified Civil Trial Lawyer *Board Certified City, County 3 Local Government Law 'Board Certified Appellate Practice Attorneys at Law Offices in Orlando, Kissimmee, Cocoa, Tara L. Barrett Ft. Lauderdale & Tampa Vivian P. Cocotas Scott J. Domstein Robin Gibson Drage Mitchell B. Haller Katherine W. Latorre Terri E. Oster Amy J. Pitsch January 30, 2008 (Via email through the City Clerk's Office) The Honorable Mayor John F. Bush and Members of the City Commission 1126 East State Road 434 Winter Springs, Florida 32708-6912 Erin J. O'Leary' Catherine D. Reischmann William E. Reischmann, Jr. Of Counsel RE: Brenda Brown Continuing to Serve on the Tuscawilla Lighting and Beautification District Advisory Committee ("TLBD") Dear Mayor and City Commission: This letter is presented at the City Commission's request for a legal opinion on whether Ms. Brenda Brown, wife of Commissioner Rick Brown, may continue to serve on the TLBD Advisory Committee in light of Florida's Anti -Nepotism Statute. For the reasons more fully explained below, it is my opinion that Ms. Brown may continue to serve on the TLBD for the remainder of her term. FACTS The facts are very important for purposes of this opinion. The relevant facts in this case are that Commissioner Brown was elected to the City Commission In November of 2006. Prior to his election, Brenda Brown was appointed by the City Commission to serve on the TLBD on August 14, 2006. Ms. Brown's term on the TLBD expires in July of 2009. The TLBD was created by Ordinance No. 704. In general, the Ordinance adopted a special assessment district for most of the area generally referred to as the Tuscawilla PUD for purposes of beautifying the assessed area. See State v. City of Winter Springs, 776 So. 2d 255 (Fla. 2001). The Ordinance also created an advisory committee called the Tuscawilla Lighting & Beautification District Advisory Committee ("TLBD"). The TLBD provides Input and makes recommendations to the City Commission concerning issues affecting the Tuscawilla PUD assessed area including, but not limited to, budget determinations, amounts of assessments, debt obligations, installing and maintaining the local improvements constructed through the levied assessments, and providing related services. According to the City's web site, the current population of the City is 34,621 residents. 225 East Robinson Street, Suite 660 - P.O. Box 2873.Orlando, Florida 32802-2873 Orlando (407) 425.9566 Fax (407) 425-9596 - Kissimmee (321) 402-0144 - Cocoa (866) 425-9566 • Ft. Lauderdale (954) 670-1979 Website: www.oriandolaw.net • Email: firmf12orlandolaw.not January 30, 2008 Page 2 BRIEF ANSWER Florida's Anti -Nepotism Law prohibits a public official (including a collegial body like a city commission) from appointing, employing, promoting, advancing or advocating for appointment, employment or advancement, a relative of the public official, into a position in the agency in which the official is serving. As such, the City Commission is generally prohibited from appointing a "relative" of one of the City Commissioners to a City board. However, because Ms. Brown was appointed to the TLBD prior to Commissioner Brown being elected, Ms. Brown may continue to serve on the TLBD in her current capacity until her term expires in July of 2009 because her appointment is "grandfathered." Upon the expiration of Ms. Brown's term on the TLBD, Ms. Brown should not be reappointed to the TLBD or appointed to any other City board so long as Commissioner Brown remains on the City Commission, although the City may qualify for a limited exemption to the Anti -Nepotism Law if its population is "less than 35,000." Florida's "Anti -Nepotism" Law provides: A public official may not appoint, employ, promote, or advance, or advocate for appointment, employment, promotion, or advancement, in or to a position in the agency in which the official is serving or over which the official exercises jurisdiction or control any individual who is a relative of the public official. An individual may not be appointed, employed, promoted, or advanced in or to position in an agency if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the individual or if such appointment, employment, promotion, or advancement is made by a collegial body of which a relative of the individual is a member. However, this subsection shall not apply to appointments to boards other than those with land -planning or zoning responsibilities in those municipalities with less than 35,000 population. §112.3135(2)(a), Fla. Stat. The overriding purpose of Florida's Anti -Nepotism Law is that individuals not be placed in public positions by their relatives or by collegial bodies on which their relatives sit. CEO 96-5. Thus, Florida's Anti -Nepotism Law has been interpreted by the Florida Commission on Ethics to prohibit a collegial body from appointing a relative of one of its members to serve on a city advisory board.' The term "relative" includes a wife of a public official. §112.3135, Fla. Stat. Consequently, the Florida Commission on Ethics has previously opined that a city commissioner's husband cannot be appointed to a city's code enforcement board. CEO 98-22. Further, a city council member's husband could not be appointed to an uncompensated position on a city advisory board (land development and regulatory agency). CEO 90-58; see also , CEO 96-5 (A community This prohibition cannot be avoided by having the collegial body member abstain from voting on the appointment of his or her relative. See, e.g. Op. Fla. Att'y Gen. 77-130. January 30, 2008 Page 3 redevelopment agency is prohibited from appointing a husband of one of its members to an agency advisory board). However, the Florida Attorney General and the Florida Commission on Ethics have recognized that In some cases previous appointments or employment will be "grandfathered" from the prohibition set forth in the Anti -Nepotism Law, where the prohibited relationship came into being after the person's employment or appointment or the relative took the higher position after the person's employment or appointment. See CEO 90.58 (citing CEO 89-46; AGO 77-36; AGO 73- 351). In other words, the person will be allowed to continue their employment or appointment in the same position, but can not be appointed or reappointed, promoted, advanced, or employed In a different prohibited position, or recommended or advocated for the same. Id. Therefore, in Ms. Brown's current situation, she can continue to serve on the TLBD until July of 2009 when her term expires. However, as long as Commissioner Brown serves on the City Commission, Ms. Brown can not be reappointed to the TLBD or appointed to any other City Board because the reappointment or appointment will be prohibited by the Anti -Nepotism Law. Furthermore, it is also worth noting that although the TLBD makes recommendations to the City Commission, Ms. Brown's position on the TLBD does not present a voting conflict of interest for Commissioner Brown when the City Commission considers those recommendations. In CEO 83-14, the Florida Commission on Ethics opined that a city council member may vote on a matter that was recommended by the city's planning commission, of which the council member's spouse is a member. The Commission on Ethics reasoned that the fact that the council member's spouse was involved in the determination or recommendation of the planning commission did not indicate, in and of itself, that the measure being voted upon by the city council would inure to the special private gain or loss of the city council member. Id. Lastly, in 1994 the Florida Legislature adopted a limited exemption from the anti -nepotism prohibition which applies only to board appointments In municipalities with populations of "less than 35,000 residents," provided the board in question does not have "land -planning and zoning responsibilities." While this exemption arguably applies at the moment to the City of Winter Springs given the City's current stated population of 34,621, it is my recommendation that the City Commission not use this exemption to appoint any "relative" of a City Commissioner to any City board. The margin between the statutory threshold of "less than 35,000 residents" and the current stated population of 34,621 is only 378 residents. This margin appears to me to be too close to risk a violation of the Anti -Nepotism Law, especially in light of the expected future residential growth along the S.R. 434 corridor including the Town Center. Notwithstanding my recommendation, if the City Commission desires to utilize the exemption, the Anti -Nepotism Law still prohibits appointments of "relatives" to City boards that have "land -planning or zoning responsibilities." The term "responsibilities" has been interpreted to apply to a city board that "has a duty to take some action as to a particular matter, as opposed to merely the ability to formulate policy recommendations and to present its advice to a superior board or officer." In the case of the City of Winter Springs, the City Commission will be prohibited from appointing a "relative" of one of the City Commissioners to the City's Code Enforcement Board because the Code Enforcement Board's enforcement of zoning ordinances constitutes a "responsibility which concerns zoning." See CEO 98-22 (Code Enforcement Board has the duty to take some action that is not merely recommendations or advice to the City Commission). Likewise, the City Commission Is also arguably prohibited form appointing a "relative" of a City Commissioner to the City's Land Planning Agency, See Op. Fla. Att'y Gen. 2006-13 (members of the local planning agency exercise the powers of the sovereign over land development and are officers for purposes of the constitutional dual office holding prohibition). On the other hand, while January 30, 2008 Page 4 the TLBD likely has been assigned "land planning" duties,2 It is questionable whether or not those duties constitute "responsibilities" under the Anti -Nepotism Law because under Ordinance 704, the TLBD is charged with only providing "input and recommendations" to the City Commission and the TLBD does not have final decision making authority. Therefore, assuming the City has a population of "less than 35,000" at the time Ms. Brown's current term on the TLBD expires in July 2009, the City Commission may arguably consider her for reappointment to the TLBD or appointment to some other City "advisory" board" that does not have "land planning or zoning responsibilities." However, for the reasons explained above, it is not advisable for the City Commission to attempt to utilize the board appointment exemption to the Anti -Nepotism Law. Please contact me if you have any questions. Ve my urs, Anthony A. Garganese City Attorney AAG/if cc: City Manager (via email) The concept of "land planning" is defined in American Jurisprudence, Zoning and Planning, as the process for determining use for a particular area of a community. 83 Am. Jur. 2d Zoning and Planning, § 4 (updated July 2007). "Planning is more than a suggestion pattern of land use, as it involves the planning of all the usual public improvements and services which go into making up a community. `Planning' may range in scope from a study of the parking needs of a community, followed by a proposed solution, to a comprehensive plan for the development of an entire municipality." Id.