HomeMy WebLinkAbout06-16-2008 Commisssioner Gilmore Continuing to serve on the Board of Directors of the Tuskawilla Homowner's AssociationBROWN, GARGANESE, WEISS & UAGRESTA, P.A.
Debra S. Babb-Nutcher°
Joseph E. Blitch
Usher L. Brown'
Suzanne D'Agresta°
Anthony A. Garganese°
William E. Reischmann, Jr.
J.W. Taylor
Jeffrey S. Weiss
'Board Certified Civil Trial Lawyer
'Board Certified City, County & Local Government Law
'Board Certified Appellate Practice
Via Hand Deliverx
Attorneys at Law
Offices in Orlando, Kissimmee, Cocoa,
Ft. Lauderdale & Tampa
Honorable Mayor John F. Bush
and Members of the City Commission
1126 E. State Road 434
Winter Springs, Florida 32708
June 16, 2008
Tara L. Barrett
Vivian P. Cocotas
Scott J. Domstein
Robin Gibson Drage
Christopher H. Hunt
Katherine W. Latorre
Terri E. Oster
Amy J. Pitsch
Erin J. O'Leary'
Catherine D. Reischmann"
Of Counsel
RE: Commissioner Gilmore Continuing to Serve on the Board of Directors of the
Tuscawilla Homeowners' Association, Inc. ( ITHOA")
Dear Mayor and City Commission:
You asked for a legal opinion on whether Commissioner Don Gilmore may continue to serve
on the Board of Directors of the Tuscawilla Homeowners' Association, Inc., in light of Florida's
Code of Ethics for Public Officers and Employees which is set forth in section 112.311 et seq.
("Ethics Code").
In Part I, I provide an extensive summary of the facts as they are known to me. In Part II, I
set forth excerpts of the most applicable provisions of the Ethics Code and the Voting Conflict law
that have been applied by the Florida Commission on Ethics ("Commission on Ethic") in similar
situations.
In Part III, I explain that in 1998 former Commissioner Edward Martinez previously
requested and received an informal ethics opinion from the Commission on Ethics on the very same
issue when he simultaneously served on the THOA board of directors and City Commission. I later
examine the underlying ethics opinions cited by the Commission on Ethics' staff attorney who wrote
the informal opinion and conclude that said opinion will still likely hold true today as a "per se"
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June 16, 2008
Page 2
general rule' so long as the public official serves the nonprofit homeowners association in an
uncompensated capacity.
In Part IV, I summarize, in broad relevant categories, numerous ethics opinions issued by the
Commission on Ethics and several cases for the purpose of explaining the ethical boundaries of
conduct when a public official simultaneously serves on the board of directors of a corporation that
may somehow interface with the agency on which the public official serves. I conclude that despite
the "per se" general rule referenced above, conflicts of interest may still arise under the Ethics Code,
under certain extraordinary factual scenarios, that may preclude the public official from serving in
both capacities on a case -by -case basis.
Lastly, in Part V, I identify several miscellaneous existing or possible factual situations that
require legal guidance as a result of a city commissioner simultaneously serving on the THOA board
of directors and as a result of more than one member of the City Commission being a member of the
THOA. I conclude that in some situations, it is advisable that the city commissioners not participate
in THOA matters so that the commissioners can avoid any doubt that they are not fully and
faithfully discharging their public duties on behalf of the City. I also conclude that in at least two
potential situations, a conflict of interest could exist under the Ethics Code which may prevent a city
commissioner from simultaneously serving on the THOA board of directors and the City
Commission.
In sum, this opinion specifically addresses the specific question asked by the City
Commission regarding Commissioner Gilmore's current situation serving on the THOA board of
directors. However, since this situation appears likely to repeat itself in the same or other form, the
various parts of this opinion are also intended to provide legal guidance to the current and future
Mayor and City Commission relative to their participation on boards of directors of corporations,
including homeowners associations, and as members of associations that may have interests with the
City.
I. Facts
Mr. Gilmore was elected to the City Commission in November of 2004. He was also elected
to the THOA board of directors in 2007. Currently, Mr. Gilmore simultaneously serves on both the
City Commission and THOA board of directors. Commissioner Gilmore, Mayor John Bush, and
Commissioner Rick Brown all reside within Tuscawilla and are dues paying members of the THOA.
The THOA is a nonprofit voluntary homeowners' association which is organized to serve the
Tuscawilla PUD ("Tuscawilla") located within the City of Winter Springs. Membership in the
What I mean by a "per se" general rule is that serving on the board of directors of a homeowners association without
compensation does not create a conflict of interest in and of itself, when factually taken alone with no connection to any
other facts. In other words, the "per se" general rule is a starting point and likely applicable most of the time. However,
under some extraordinary circumstances, additional specific facts may call into question the "per se" general rule and
create a potential conflict of interest.
June 16, 2008
Page 3
THOA is voluntary. The members pay annual dues. According to the THOA's website, the THOA
represents the interests of "4600 families, comprising over 11,000 residents" of Winter Springs.
Additionally, the website states that "[t]he [THOA] also maintains a committee structure which
monitors and supports such important functions as education, community activities and other areas
of major community interest." The THOA is run by a board of directors that is elected by the
members of the THOA. Members of the board do not receive compensation for serving on the board
of directors. The THOA board of director's meetings are open to the public.
In general, The THOA is a quasi -umbrella homeowners' association because there are
numerous other autonomous mandatory homeowners associations operating within subareas of
Tuscawilla. However, the THOA has no authority over these other homeowners associations. The
THOA has revenue sources other than membership dues including advertising fees received from
publishing a monthly community magazine that is circulated to its members and within Tuscawilla.
According to the property appraiser's records, the THOA owns two parcels of real property. The real
property generally consists of the fountain area located at the Tuscawilla entrance along Tuskawilla
Road (`Entrance Area").
The THOA was not created by the City. Further, the City has not been delegated any
authority to the THOA. Thus, the THOA does not act on the City's behalf. However, in recent
years, there have been a few formal relationships between the THOA and the City. For example, in
furtherance of the beautification project known as the Tuscawilla Lighting and Beautification District
("TLBD"), the City acquired from the THOA a perpetual easement, dated May 15, 2001(Seminole
County Official Record Book 4101, Page 0158) upon the Entrance Area for purposes of installing
and maintaining hardscape and landscape improvements. See State v. City of Winter Springs, 776
So. 2d 255 (Fla. 2001). More recently, the THOA has indicated that it desires to install a flag pole(s)
in the Entrance Area or within the Winter Springs Boulevard median near Tuskawilla Road in order
to fly an American Flag. In addition, from time to time, the THOA has generously donated money
to the City for such things as equipment purchases for the City's fire and police departments.
Lastly, from time to time, the president or other officers of the THOA will appear before the
City Commission to voice the THOA's position on issues facing the City and the Winter Springs'
community. Given the local community focus of the THOA, issues facing the City of Winter Springs
are undoubtedly discussed at THOA meetings. Historically, the Mayor and members of the City
Commission have attended the meetings of the THOA board of directors and have participated in
open forum discussions with the THOA board. Former city commissioners, such as Edward
Martinez, have also served on the THOA board of directors while simultaneously serving on the City
Commission.
II. Applicable Provisions of Ethics Code
The most relevant provisions and excerpts of the Ethics Code are as follows:
Section 112.313(3), Florida Statutes, provides:
June 16, 2008
Page 4
DOING BUSINESS WITH ONE'S AGENCY. —
No employee of any agency acting in his or her official capacity as a purchasing
agent, or public officer acting in his or her official capacity, shall either directly or
indirectly purchase, rent, or lease any realty, goods, or services for his or her own
agency from any business entity of which the officer or employee or the officer's or
employee's spouse or child is an officer, partner, director or proprietor or in which
such officer or employee or the officer's or employee's spouse or child, or any
combination of them, has a material interest. Nor shall a public officer or employee,
acting in a private capacity, rent, lease, or sell any realty, goods, or services to the
officer's or employee's own agency, if he or she is a state officer or employee, or to
any political subdivision or any agency thereof, if he or she is serving as an officer
or employee of that political subdivision....
Absent an exemption, this section prohibits a public officer acting in his official capacity
from purchasing services, goods, and realty from a business entity of which he is, among other
things, a director. Further, this section also prohibits the public officer from acting in his private
capacity to sell services, goods, and realty to his political subdivision.
Section 112.313(7), Florida Statutes, provides:
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. —
(a) No public officer or employee of an agency shall have or hold any employment
or contractual relationship with any business entity or any agency which is subject
to the regulation of, or is doing business with, an agency of which he or she is an
officer or employee, excluding those organizations and their officers who, when
acting in their official capacity, enter into or negotiate a collective bargaining contract
with the state or any municipality, county, or other political subdivision of the state;
nor shall an officer or employee of an agency have or hold any employment or
contractual relationship that will create a continuing or frequently recurring conflict
between his or her private interests and the performance of his or her public duties
or that would. impede the full and faithful discharge of his or her public duties.
2. When the agency referred to is a legislative body and the regulatory power over
the business entity resides in another agency, or when the regulatory power which the
legislative body exercises over the business entity or agency is strictly through the
enactment of laws or ordinances, then employment or a contractual relationship with
such business entity by a public officer or employee of a legislative body shall not be
prohibited by this subsection or be deemed a conflict.
Section 112.313(7)(a) prevents public officers or employees from engaging in several
activities. First, the statute prohibits a public officer or employee from having a contractual
June 16, 2008
Page 5
relationship with a business entity regulated or doing business with his agency. Second, the statute
prohibits a public officer from having a contractual relationship which would create a continuing or
frequently recurring conflict between her private interests and the performance of his public duties.
Lastly, the statute prohibits a public officer from having a contractual relationship which would
impede the full and faithful discharge of his or her public duties.
Section 112.3143(3)(a), Florida Statutes states:
VOTING CONFLICT. —
No county, municipal, or other local public officer shall vote in their official capacity
upon any measure which would inure to his or her special private gain or loss; which
he or she know would inure to the special private gain or loss of any principal by
whom he or she is retained or to the parent organization or subsidiary of a corporate
principal by which he or she is retained, other than agency as defined in s.
112.312(2); or which he or she knows would inure to the special private gain or loss
of a relative or business associate of the public officer. Such public officer shall,
prior to the vote being taken, publicly state to the assembly the nature of the officer's
interest in the matter from which he or she is abstaining from voting and, within 15
days after the vote occurs, disclose the nature of his or her interest as a public record
in a memorandum filed with the person responsible for recording the minutes of the
meeting, who shall incorporate the memorandum in the minutes.
In general, the voting conflict statute prohibits a public official from voting on matters that
would inure to the special private gain or loss of himself, a principal by whom he is retained, a
business associate, or a relative. A special private gain is "almost always, if not always" a financial
interest that is directly enhanced by the vote in question. See George v. City of Cocoa, 78 F. 3d 494
(11 `h Cir. 1996).
III. Informal Opinion Letter to Former Commissioner Martinez
The precise question I have been asked to opine upon was submitted to the Florida
Commission on Ethics by former City Commissioner Edward Martinez. Applying section
112.313(a), Florida Statutes, the staff attorney for the Commission on Ethics issued an informal
opinion', dated October 1,1998, stating that "the Code of Ethics for Public Officers and Employees
would not appear to be violated" where he simultaneously served on the Winter Springs Commission
Informal opinions issued by the staff attorneys for the Commission on Ethics are based on previous ethics opinions
issued by the Commission on Ethics. They are intended to provide guidance on ethical conduct under the Ethics Code.
On the other hand, formal opinions are actually issued by the Commission on Ethics after formal consideration and vote
at a public meeting of the full Commission. Formal opinions issued to public officers or employees by the Commission
on Ethics establish a "standard of public duty" and "are binding on the conduct of the person who sought the opinion."
See §I 12.322(3)(a), Fla. Stat.
June 16, 2008
Page 6
and as an uncompensated board member of the THOA. In support of this conclusion, the staff
attorney cited two previously published ethics opinions: CEO 79-66 and CEO 92-31.
In CEO 79-66, the Commission on Ethics opined that a board of adjustment member does
not have a voting conflict of interest when the member votes upon a matter opposed by a
homeowners association of which he is president. While this opinion does not address the conflict
of interest provision set forth in section 112.313(a), the Commission stressed that the member was
not "retained," for purposes of determining a voting conflict, by the association because he was an
uncompensated officer and director of the homeowners association.
On the other hand, CEO 92-31 does address the application of section 112.313(a). The facts
underlying this opinion were that a person was appointed to serve on the Lee County Land Planning
Agency. This person also served as an uncompensated officer and director of a nonprofit corporation
concerned with growth management issues specifically in Lee County. Particularly, the nonprofit
corporation appeared before the land planning agency and county commission to voice their position
regarding growth management issues. Further, the corporation was involved in two administrative
hearings with the county involving comprehensive plan amendments which were previously
considered by the land planning agency. Under these facts, the Commission on Ethics opined that
a member of a county local planning agency does not have a conflict of interest if he also serves as
an uncompensated officer and director of a nonprofit corporation concerned with growth
management issues in the county. The Commission emphasized that "uncompensated service as an
officer or as a member of the board of directors of a nonprofit organization does not constitute
employment or a contractual relationship" for purposes of determining a conflict under section
112.313(a). Id. (citing CEO 83-70; CEO 87-4).
Therefore, given that former Commissioner Martinez served the THOA in an uncompensated
capacity, the staff attorney for the Commission on Ethics opined that it was not a conflict of interest
for him to simultaneously serve on the City Commission.
Based on a thorough examination of the aforementioned statutes and current legal precedent,
as explained below, it is my view that this opinion still holds true today as a "per se" general rule so
long as the public official serves the nonprofit homeowners association in an uncompensated
capacity. However, certain situations may arise where a conflict of interest is created or due process
or public duty requires that the public official abstain from participating in certain association
matters involving the City or resign from the association.
IV. Categorized Summary of Relevant Ethics Opinions and Case Law
A. Public Officials Serving as Uncompensated Members of Board of Directors of
Nonprofit Corporations
There are a significant number of other opinions issued by the Commission on Ethics finding
that a conflict of interest does not exist where a public official also serves as an uncompensated
member of the board of directors of a nonprofit corporation. The consistent rationale supporting
June 16, 2008
Page 7
these opinions is that a public official or employee who serves without compensation on a nonprofit
corporation does not have an "employment or contractual relationship" with, nor is the public official
"retained"" by, the nonprofit corporation that could create either a conflict of interest under section
112.313(a), Florida Statutes or a voting conflict under section 112.3143, Florida Statutes. As such,
the uncompensated status of the public official at the nonprofit corporation has generally served as
a bright -line test in determining whether a conflict of interest exists for the public official in
performing his public duties.
For example, a prohibited conflict of interest did not exist where a city commissioner served,
without compensation, on the board of directors of the local chamber of commerce which provided
a bond to the city as a financial incentive to attract businesses to the city. CEO 89-33. In addition,
no conflict of interest exists when a city commissioner serves as vice president, without
compensation, of a nonprofit corporation receiving in -kind services from the city in order to promote
and present a beauty pageant. CEO 83-70. Moreover, no conflict of interest would be created for
a housing authority commissioner if the housing authority entered into a contract with a tenant
association where the commissioner also serves as the uncompensated president of the tenant
association which is a nonprofit corporation. CEO 87-46.
Notwithstanding, a recent opinion issued by the Commission on Ethics seems to signal that
the Commission on Ethics will no longer consider "the lack of compensation flowing" to the public
official serving on a nonprofit corporation as a bright line test for purposes of determining a conflict
of interest. See CEO 06-12 (apparently finding that a contract existed when a person voluntarily
became a member and officer of the Florida Association of Realtors because members were required
to subscribe or assent to the association's constitution and by-laws).
In CEO 06-12, the Commission on Ethics opined that a prohibited conflict of interest would
exist where a member of the Florida House of Representatives were to serve, without compensation,
as president of the Florida Association of Realtors, a not -for -profit corporation. The person
requesting the opinion represented to the Commission that a portion of her duties as president of the
Association included legislative activities on behalf of the Association including meeting with
legislators, cabinet members and agency heads to discuss issues relevant to the Association. Further,
duties included assisting with the National Association of Realtors on campaign issues and choosing
candidates to support. The president was also responsible for developing issues which will comprise
the Association's legislative platform including issues which the Association's lobbyists will
undertake with the Florida legislature.
In conjunction with its finding that a contractual relationship existed for purposes of section
112.313(7), the Commission on Ethics stated that:
The second part of Section 112.313(7) prohibits a public officer from having any
contractual relationship which would created a continuing or frequently recurring
The term "retained" under the voting conflict statute (section 112.3143, Florida Statutes) has been interpreted by the
Commission on Ethics to'mean "to keep in pay or in one's services; specifically, to employ by paying a retainer." See
CEO 79-65 and CEO 79-66
June 16, 2008
Page 8
conflict between her private interests and the performance ofher public duties, or that
would impede the full and faithful discharge of her public duties. This provision
establishes an objective standard which requires an examination of the nature and
extent of the public officer's duties together with a review of her private interests to
determine whether the two are compatible, separate and distinct, or whether they
coincide to create a situation which "tempts dishonor."
CEO 06-12 at 3 (citing Zerweck v. Commission on Ethics, 409 So. 2d 57 (Fla. 4`h DCA 1982)). Due
to the extensive lobbying activities involved in serving as president of the Association and the
breadth of issues potentially affecting the Association before the Legislature, the Commission
ultimately concluded that the person could not "completely separate" the role of president from the
lobbying activities. As such, the Commission further concluded that:
... "it would be virtually impossible to draw the line distinguishing when you were
acting "as a State Representative" as opposed to acting "as president of the
[association]... you would be faced on almost a daily basis with situations where
your dual responsibilities would interface. Furthermore, when a member of the
Legislature is the public "face" of the organization, indeed, its highest ranking
member, the potential exists for doubt to arise in the minds of the public as to
whether the member's position is espoused because of his or her true belief in its
benefit, or because the member has a responsibility to promote and advocate for the
organizations's philosophy. Accordingly, we find here ... that such line -drawing is,
as a practical matter, unachievable.
Id. at 6. Therefore, for the reasons explained above, the Commission on Ethics opined that a conflict
of interest existed under section 112.313(7), Florida Statutes.
In addition, and with respect to voting conflicts, several Commission on Ethic's opinions are
instructive. For example, no voting conflict of interest was created where a city council member
were to vote on site selection or committing city property for a cultural center, where a council
member also served on the board of trustees of a nonprofit corporation requesting the city to use
public land for that purpose. CEO 83-32. In addition, no voting conflict of interest existed where
a member of a city planning commission were to vote on a down -zoning proposal encompassing the
neighborhood of over 560 properties in which he resided and where the proposal was prepared by
a neighborhood association of which he was a member. CEO 84-80. Also, in CEO 83-93, it was
stated that no voting conflict would be created if a city commissioner voted on a zoning petition of
a nonprofit corporation where he served as an uncompensated member of the board of directors of
the corporation.
B. Public Officials Serving as Compensated Members of Board of Directors of For Profit
Corporations
In a very recent opinion, the Commission on Ethics opined that a prohibited conflict of
interest exists when a county commissioner also serves as a compensated director of a bank which
was contracting with the county to provide lending assistance to eligible recipients regarding the
June 16, 2008
Page 9
State Housing Initiatives Partnership Program (SHIP). CEO 08-4. Interestingly, the Commission
meticulously reviewed the required elements of sections 112.313(3)[Doing Business With One's
Agency] and 112.313(7)(a) [Conflicting Employment or Contractual Relationship] and found a
violation of each:
Your situation meets the required elements of Section 112.313(3): as a County
Commissioner, you are a "public officer"; as a corporation or similar entity, the bank
is a "business entity"; as a member of the board of directors of the bank you are a
director of the business entity; when the County Commission acted to enter into the
agreement with the bank, you acted to purchase services for the County from a
business entity of which you are a director; and as a director of the bank, you acted
in your private capacity to sell services to the County when the bank acted to do so.
Your situation also meets the required elements of Section 112.313(7)(a): as a
County Commissioner, you are a public officer; by virtue of being a paid director of
the bank you hold employment or a contractual relationship with a public officer; by
virtue of being a paid director of the bank you hold employment or a contractual
relationship with a business entity; and by virtue of the agreement between the bank
and the County, the business entity with which you hold employment or a contractual
relationship is "doing business with" your public "agency."
CEO 08-4 (citations omitted). Therefore, serving as a compensated member of a board of directors
for a for -profit corporation presents a more compelling conflict of interest situation when that
corporation is doing business with the public agency of which the board member also serves.
C. Representing Clients Before a Public Official's Agency
Conflicts of interest have been found by the Commission on Ethics in certain situations
where a public official sought to represent clients before the board on which the official serves. In
CEO 78-86, the Commission on Ethics found that a conflict of interest would be created if a board
of adjustment member were to represent clients before the board of adjustments of which he was a
member. The Commission reasoned a conflict exists because "the board member has the advantage
of knowing intimately board procedures as well as the particular interests, views, and voting records
of its members, and he can tailor his representations accordingly. In addition, the public officer's
independence and impartiality are jeopardized. Finally, the appearance of public office being used
for private gain undermines the confidence of people in their government." Id.; see also CEO 77-
126 (member of the planning board representing clients, in his private capacity as an architect, before
the planning board would constitute a prohibited conflict of interest even if he abstains from voting
on the client matter); CEO 88-40 (city council or partner of his law firm prohibited from representing
client before city council regarding zoning matter); 07-13 (conflict would exist if members of city
council member's law firm represented clients before city council). However, the Ethics Code does
not prohibit a person from appearing on his own behalf before any agency of government, including
the agency of which he is a member). CEO 77-119.
June 16, 2008
Page 10
D. Lobbying Activities
In addition to the prohibition of representing clients before one's own agency, the
Commission on Ethics has also paid special attention to lobbying activities of State Legislators. See
Art. H, § 8(e), Fla. Const. and § 112.313(9)(a)3, Fla. Stat. (Prohibiting a member of the Legislature
from personally representing another person or entity for compensation before any state agency).
While specific rules exist for State Legislators relative to lobbying that do not exist for city
commissioners, it is instructive for city commissioners to review the lobbying prohibitions imposed
on State Legislators.
For example, the Commission on Ethics has "insisted that a legislator's employment should
be completely separated from the lobbying activities of his employer to avoid a violation of Section
112.313(7)(a)." CEO 03-11. Further, in CEO 91-1, the Commission on Ethics found it would be
a conflict of interest if a State Senator contracted with a professional association that lobbies the
Legislature to speak to its professional groups regarding legislative issues, to contribute articles on
legislative issues to the associations publications, and to advise its executive committee and board
of governors regarding legislative and political education activities of the association. The
Commission on Ethics emphasized that "a legislator's employment should be completely separated
from the lobbying activities of his employer to avoid a violation of section I I2.313(7)(a)." Id. at 2.
The same emphasis and conclusion was also reached by the Commission on Ethics when it found
that the president of the Florida Association of Realtors, who was seeking to run for State
Representative, could not completely separate her role as president from the Association's lobbying
activities before the Legislature in order to avoid a violation under section 112.313(7). CEO 06-12
at 5.
Likewise, it is my opinion that it would be a conflict of interest for a city commissioner to
enter into a contractual relationship with a person or entity for the express purpose of lobbying the
City Commission for private gain. In addition, on rare occasions where a city commissioner's
private employment or contract with an association or entity creates a situation where the
commissioner can not "completely separate" his or her role with the association or entity from the
association's or entity's formal lobbying activities before the City Commission, a conflict of interest
could exist.
On the other hand, in the context of examining the ethical appropriateness of lobbying
activities, the Commission on Ethics has also stated:
[T]he official duties of a legislator legitimately include efforts to educate groups of
citizens on legislative policy issues affecting them, whether these issues arise from
past legislative sessions or may be expected to occur in the future. There is certainly
nothing inconsistent with the proper performance of legislative duties when a
legislator meets with professional organizations and associations about legislative
issues of interest to them. Moreover, where the legislator agrees with the positions
espoused by the group as being the best policy for his constituents ... there is nothing
improper about the legislator's discussing upcoming lobbying priorities and strategies
June 16, 2008
Page 11
with the group. All these activities are properly part of politics and leadership in a
representative form of government.
CEO 91-1 at 3. Therefore, while it is not advisable that the Mayor and members of the City
Commission be retained by private parties to formally lobby the City, the Mayor and members of
the City Commission, as local legislators, have a responsibility to educate and inform the public
about matters affecting the City.
V. Miscellaneous Situations
A. Participation in Public Forums including THOA Meetings
Under the circumstances presented, two or more city commissioners and the Mayor may
occasionally be in attendance at meetings of the board of directors of the THOA. Additionally, the
THOA board of directors will sometimes undoubtedly discuss issues (at a board meeting open to the
public) that could foreseeably come before the City Commission for future decision making. During
these board discussions, Commissioner Gilmore may comment on City issues and express his views
or voting intent on an upcoming City matter. Further, other city commissioners or the Mayor, who
are also members of the THOA, may be afforded an opportunity by the THOA to comment on City
issues. They may also express their views and voting intent. As such, there may be situations where
more than one city commissioner and the Mayor are expressing their views and voting intent on City
issues in the presence of one another outside of a duly held City Commission meeting. This situation
presents a Sunshine Law issue.
While there is no legal authority in Florida that precisely addresses this situation at a meeting
of a homeowners association, there are several Florida Attorney General opinions that provide good
guidance. In AGO 94-62, the Florida Attorney General opined that the Sunshine Law does not apply
to a forum sponsored by a private civic club at which two or more members of a county commission
will serve as panelists and answer questions regarding public issues that may foreseeably come
before the county commission in the future for decision making. However, the Florida Attorney
General cautioned that the county commissioners must "avoid discussion among themselves of
issues that may come before the [commission] ... and avoid situations in which private political
forums may be used to circumvent [the requirements of] the Sunshine Law." Id. at 2 (citing Town
of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974)); see also Inf. Op. to John C. Randolf, June
4,1996 (Sunshine Law does not apply to community forums sponsored by private associations when
two or more members of the town council and/or mayor are present answering questions related to
issues that could foreseeably come before the council for a decision so long as the council members
do not discuss the issues among themselves.). Furthermore, the Sunshine Law is not violated by a
council member expressing his view or voting intent on a future council matter to a newspaper
reporter who the council member knows will publish the account in a local newspaper prior to the
meeting, provided the council member is not using the reporter as an intermediary to communicate
with other members of the council to circumvent or evade the Sunshine Law requirements. AGO
81-42.
June 16, 2008
Page 12
Therefore, the Sunshine Law does not prevent Commissioner Gihnore from serving on the
THOA board of directors. Further, the Sunshine Law does not prevent the Mayor or other city
commissioners from becoming members ofthe THOA. Moreover, Commissioner Gilmore and other
members of the City Commission and/or the Mayor may generally express their views or voting
intent on City issues that are legitimately being discussed by the THOA board of directors.'
However, as opined by the Florida Attorney General, members of the City Commission and/or
Mayor must refrain from discussing foreseeable City Commission issues among themselves. In
other words, if members of the City Commission and/or Mayor desire to express their views and
voting intent, they should do so in the normal course of the THOA board meeting and in a manner
so that all in attendance can hear any comments made. One on one discussions between members
of the City Commission and/or Mayor should be avoided. In addition, THOA board meetings must
not be used as a vehicle to "circumvent or evade" the requirements of the Sunshine Law.
B. Quasi -Judicial Matters Which Could Appear Before the City Commission
Some decisions of the City Commission are required to be made in a quasi-judicial forum.
These decisions require special consideration and require public officials to act in a judicial manner
so that due process rights are protected. In general, when acting in a quasi-judicial capacity,' the City
Commission is required to make decisions in an unbiased and impartial manner. See, e.g., Seminole
Entertainment, Inc. v. City of Casselberry, 811 So. 2d 693 (Fla. 5" DCA 2001) (The presiding officer
should be judicial in attitude and demeanor and free from prejudgment and from zeal for or against
the licensee or permittee (citing McQuillin, Municipal Corporations, § 26.89)); see also,
§ 112.311(1), Fla. Stat. (It is essential to the proper conduct and operation of government that public
officials be independent and impartial and that public office not be used for private gain.) Quasi-
judicial decisions must be based on competent substantial evidence presented to the City
Commission at a public hearing. See Board of County Commissioners ofBrevard County v. Snyder,
627 So. 2d 469 (Fla. 1993). Ex parte communications, which are generally communications
occurring outside of the public hearing, are anathema to due process, presumed prejudicial, and
should be avoided in quasi-judicial matters. See Jennings v. Dade County, 589 So. 2d 1337 (Fla.
3rd DCA 1991).6
Because quasi-judicial matters require substantial due process safeguards, I can envision
situations where serving on the THOA board of directors, or on some other community board,
presents a challenge for a city commissioner. This challenge may require the city commissioner to
take appropriate steps in order to ensure that due process is afforded when the City Commission
As explained below, members of the City Commission and/or Mayor should not express their views and voting intent
on some foreseeable City issues such as quasi-judicial and litigation related matters.
Examples include decisions made by the City Commission regarding rezonings, variances, conditional uses, waivers,
appeals of administrative decisions, license revocations, site plans, aesthetic review, and final engineering plans.
However, in an attempt to address the due process concerns raised in Jennings regarding ex parte communications, the
Florida Legislature adopted section 286.0115, Florida Statutes, which requires public officials to disclose all written and
verbal ex parte communications on the record during a quasi-judicial hearing before a final decision is made.
June 16, 2008
Page 13
makes a final decision. Such steps may include, but are not limited to, disqualifying himself from
the City Commission proceedings, resigning from the board ofdirectors, or not participating inboard
matters. For instance, if the City Commission was faced with a controversial land use decision in
Tuscawilla, and the THOA board of directors was a vocal opponent or proponent of the decision,
it would be advisable that the Mayor and Commissioners Gilmore and Brown not participate in any
meetings of the THOA while the matter remained pending in order to protect their ability to
participate and vote impartially and without bias when the matter is presented to the City
Commission. An unreported Eighteenth Judicial Circuit Court decision demonstrates the
appropriateness of this advice.
In Florida Institute of Technology, Inc. v. City of Melbourne, Circuit Case No. 05-2001-AP-
60076, the City Council denied a site plan proposed by FIT to construct seven college dormitory
apartment buildings. On evidence presented by the City's planning manager, it was conceded that
FIT had complied with all of the site plan requirements. Notwithstanding, the site plan application
was denied after a lengthy and heated debate involving many residents that did not want the building
constructed for reasons unrelated to the site plan approval criteria. FIT appealed the city council's
decision to the circuit court, where the council's decision was reversed. One successful argument
raised by FIT was that Councilperson Poole's participation in the quasi-judicial hearing was biased
and partial, and that she should have disqualified herself from the proceeding. The Court's opinion
is instructive:
The Court is not unmindful of the pressures that are placed on public officials. On
one hand they are pressed to allow growth only if it is consistent with available roads
and services. On the other hand, they are pressured by landowners who wish to
develop their property in such a manner that results in the largest return of capital or
pleasure, and still they are subject of pressure from the neighbors of property to be
developed, who are quire understandably upset by the slightest change and use of
adjoining vacant property. All these interests make it difficult to make decisions in
cases such as this. However, being a member of City Council does carry certain
responsibilities and one of those responsibilities is to follow the law and in a quasi-
judicial proceeding, to be an impartial hearing officer. In this case, Councilperson
Poole clearly showed bias and partiality in that she appeared at the Planning and
Zoning Board and advocated against the proposed project, she marshaled opposition
to the project to be presented to the City Council and she appeared at the Department
of Transportation hearing on the issue of a curbcut on Babcock Street. All of these
add up to showing of bias on her part against the proposed project prior to the
hearing. Based on those factors, Councilperson Poole should have disqualified
herself as a participant in the proceeding. Fundamental due process requires that a
person appearing before a public body is entitled to have the issues determined by
an impartial panel. In any future proceedings on this particular project,
Councilperson Poole should disqualify herself and not participate in the proceedings.
Id. at 3 (italic emphasis added).
June 16, 2008
Page 14
Florida Institute of Technology makes clear the point that in some instances, actions and
public positions taken by city council members regarding a development project prior to a quasi-
judicial hearing may call into question a city council member's ability to make an unbiased and
impartial quasi-judicial decision. The negative result could be that the council member will have
to disqualify himself or herself from the quasi-judicial proceeding, or if he or she still chooses to
participate in the proceeding, the proceeding could be tainted and the decision of the city council will
be reversed. Accordingly, when the THOA board of directors is going to consider taking a position
on an issue that will be decided by the City Commission at a quasi-judicial hearing, it is my view that
the Mayor and city commissioners not participate in the THOA's decision making process so as to
insulate themselves from potential claims of bias and partiality.
C. Future Amendments to the Perpetual Easement Granted by the THOA For the Entrance
Area
Section 112.313(3), Florida Statutes, prohibits a public officer from being an officer or
director of a business entity which is indirectly or directly leasing or selling realty to his own agency.
In other words, a city commissioner is prohibited from acting in his private capacity to sell realty to
the City. This prohibition also applies where a corporation of which the public official is an officer
or director sold realty to his or her agency. See CEO 90-24 (a prohibited conflict of interest would
exist if a city commissioner were to vote as a member of the city commission regarding the purchase
of church property by the city where the commissioner also served as a deacon and finance
committee chairman.of the church).
The THOA owns two parcels of real property. In 2001, the City acquired a perpetual
easement over both parcels as part of the Tuscawilla Lighting and Beautification District project.
While that prior easement does not currently present a conflict of interest for Commissioner Gilmore
because he was not on the City Commission at the time the easement was granted,' amendments to
the easement would likely present a conflict of interest while Commissioner Gilmore simultaneously
serves on the City Commission and the THOA board of directors, unless an exemption to the conflict
of interest prohibition is applicable. The Florida Commission on Ethics has recognized at least one
exemption in cases where the real estate in question constituted the sole source of supply within the
political subdivision.
In CEO 89-65, the Florida Commission on Ethics advised that no prohibited conflict of
interest would be created were an assistant city attorney to sell his residence to the city for historic
preservation and use as a public community facility. The Commission determined that the unique
historical value of the house made it a sole source of supply. Thus, the sole source exemption set
forth in section 112.313(12)(e), Florida Statutes applied and the conflict of interest was avoided.
Given the unique attributes of the two parcels constituting the Entrance Area and their
incorporation into the TLBD, the parcels may arguably constitute a sole source of real property for
the City at this time. Further consideration of this issue would be warranted in the event the
' Florida Statutes provides the equivalent of a "grandfather clause" exempting a conflict situation which occurred
prior to the time the subject official took office. See CEO 82-10.
June 16, 2008
Page 15
easement had to be amended while a City Commissioner simultaneously served on the THOA board
of directors.
D. Adverse Litigation Involving the THOA and City
Significant litigation between the THOA and the City would create a very tenuous situation
for any city commissioner who is also serving on the THOA board of directors. Hypothetically, in
such instances, the city commissioner will be privy to attorney -client and other confidential
information from both sides of the litigation. Further, the city commissioner will possibly face
conflicting obligations and loyalties. Under these circumstances, the two positions could, depending
on the substance of the litigation, present a continuing or frequently recurring conflict of interest or
impede the full and faithful discharge ofthe city commissioner's public duties in violation of section
112.313(7)(a), Florida Statutes. The question to examine at the time litigation commences will be
whether the two positions are "compatible, separate and distinct or whether they coincide to create
a situation which `tempts dishonor." Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla.
41" DCA 1982). In certain litigation cases, it is my view that a conflict of interest will exist. See,
e.g., CEO 86-81 (A conflict of interest existed where a secretary in a city attorney's office was
employed part-time as the administrator of the city's police pension fund, where the city and the
pension fund were involved in litigation.)
In sum, simultaneously serving on the City Commission and the THOA board of directors
does not "per se" create a conflict of interest. When you examine the totality of the Ethics Code and
quasi-judicial rules, however, one can imagine certain situations where a conflict of interest or due
process issue may arise that warrant prudent steps be taken to avoid the ethical and constitutional
pitfalls raised in this letter. When such steps are required, the public official should always observe
the "highest standards of ethics consistent with promoting the public interest and maintaining the
respect of the people in their government." See § 112.311 (6), Fla. Stat.
Please contact me if you desire further explanation on any of the issues raised in this letter.
Si r y,
Anthony A. Garganese
City Attorney
cc: City Manager
City Clerk (for archives)