VOTING CONFLICT OF INTEREST

MEMBER OF WATER MANAGEMENT DISTRICT BOARD OF GOVERNORS
VOTING ON LAND ACQUISITION WHERE MEMBER'S HUSBAND IS ATTORNEY
IN SUIT PERTAINING TO MINING INTERESTS ON THE PROPERTY

To: Name withheld at person's request (South Florida Water Management District)

SUMMARY:

No prohibited voting conflict of interest would be created under Section 112.3143, Florida Statutes, were a member of the Board of Governors of the South Florida Water Management District to vote on a draft contract to acquire land from U.S. Sugar Corporation, where the member's husband is an attorney in a lawsuit seeking invalidation or modification of zoning approval granted by the County for mining operations on the land, but his compensation is not linked to the litigation.

QUESTION 1:

Would a voting conflict of interest exist were a member of the Board of Governors of the South Florida Water Management District to vote on acquiring land for the District, where her husband is an attorney engaged in litigation seeking invalidation or modification of zoning approval granted by Palm Beach County for mining operations on the land, but his compensation is not linked to the litigation?

Your question is answered in the negative, under the circumstances presented.

You advise¹ that you serve on the Governing Board of the South Florida Water Management District (SFWMD or "District"). You write that SFWMD is considering the purchase of land and possibly assets owned by the United States Sugar Corporation, Inc., (U.S. Sugar) and that your husband, an attorney, is involved in a lawsuit relating to Palm Beach County's grant of zoning approval to a company to conduct mining operations on the land. You inquire whether, pursuant to Section 112.3143, Florida Statutes, you will be prohibited from voting on the draft contract to purchase the property.

According to your letter, the District's staff has negotiated a draft contract to purchase approximately 182,000 acres of land, and possibly assets, currently owned by U.S. Sugar. The land is in the Everglades Agricultural Area, and the purchase would be for the purpose of using some portion of the land yet to be determined, for water storage and/or environmental restoration, as part of SFWMD's Comprehensive Everglades Restoration Plan.

You advise that your husband is an attorney who practices in a not-for-profit firm² specializing in environmental and growth management issues. You relate that your husband currently represents three environmental groups in two lawsuits which challenge and seek to overturn zoning approval granted by Palm Beach County for sand and limestone mining on U.S. Sugar's property. You and your husband have advised that the County is the named defendant in the suit and that the mining company has intervened, but that neither the District nor U.S. Sugar is a party to the lawsuit.

You state that the remedy the plaintiffs seek in those lawsuits, and the only remedy available to them, is the invalidation or modification of the mining permits. You state, "no attorney fees, monetary award, or financial gain is sought or available to the plaintiffs." You further advise that your husband receives an annual salary from his law firm which is not tied to billable hours, that the firm receives funds not just from clients but through "contributions and grants from individuals and foundations which support its mission," and that "by practice and policy, any client-paid or third party funding pledged or paid to [your] husband's organization for specific projects or cases is limited to the organization's actual costs, including staff attorney time, and released or refunded if the project or case for which the funding is pledged becomes unnecessary."

You advise that if the District were to acquire the land and determine that the mining is compatible with its restoration plans, future actions of the SFWMD could impact the litigation. Such future actions, you relate, could include a technical determination by the District regarding the impact of the proposed mine on the environmental and water resources in the Everglades, or actions on specific restoration projects or the surplusing or tradeoff of the subject land. You state it is not presently known when such determinations might occur; however, you speculate that they would not be made sooner than six months after the land acquisition vote and advise that you do not expect that they will be made prior to or at the time of the land acquisition vote.

Section 112.3143(3)(a), Florida Statutes,³ states:

VOTING CONFLICTS.—No county, municipal, or other local public officer shall vote in an official capacity upon any measure which inures to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom the officer is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(3); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public 1officer. 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.

Section 112.3143(3)(a) prohibits you from voting whenever the matter under consideration would inure to your own special gain or loss or that of a relative, business associate or a principal by whom you are retained. Nothing in your letter suggests that the outcome of the vote would inure to your own special private gain or loss or that of a principal or business associate; the relevant issue here is whether the vote may inure to the special private gain or loss of a relative, i.e., your husband. We find that it would not.

There are myriad persons and entities who may stand to gain or lose, depending not only on what action the SFWMD takes with respect to purchasing the property but also on how the purchase is structured and on what subsequent action it takes with respect to the property. Some of those potential gainers or losers may be your husband's clients, because under some of the many scenarios possible, actions of the District could affect the lawsuit. But it is not necessary to analyze whether such gains or losses are speculative, because no scenario has been suggested in which any benefit or loss inures to your husband. To the contrary, all the information you have provided indicates that he is a salaried member of his organization, who will receive the same pay regardless of the outcome of any lawsuit. In CEO 07-5, a recent opinion on an issue similar to that presented here, we advised a county commissioner that she was not presented with a voting conflict under Section 112.3143(3), regarding votes/measures of the county commission affecting clients of a lobbying firm employing her husband, where her husband received no compensation from any firm fee derived from the firm's work in behalf of a client on a matter involving the county. The same rationale applies here.

Accordingly, under the circumstances described herein, we find no voting conflict of interest would be created were you to vote on acquiring land for the District, where your husband is an attorney engaged in litigation seeking invalidation or modification of zoning approval granted by Palm Beach County for mining operations on the land, but his compensation is not linked to the litigation.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 5, 2008 and RENDERED this 10th day of December, 2008.

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Cheryl Forchilli, Chair