VOTING CONFLICT

COUNTY COMMISSIONER VOTING ON MEASURE
TO PURCHASE LAND FORMERLY OWNED BY COMPANY OWNED
BY PERSONS WHOSE FAMILY HOLDING COMPANY OWNS
COMPANY COMMISSIONER WORKS FOR
WHERE FORMER OWNER COMPANY RETAINS MORTGAGE ON LAND

To: Thomas M. Shuler, County Attorney (Franklin County)

SUMMARY:

Under the circumstances presented, a county commissioner would not be presented with a voting conflict of interest under Section 112.3143(3)(a), Florida Statutes, regarding a measure to purchase land for a county airport buffer, where a company which is owned in part by persons whose family holding company owns the company the commissioner works for conveyed the land to the current owner and holds a mortgage on the land. Under the situation presented, the measure would not inure to the special private gain or loss of the commissioner personally or to that of any person or entity standing in a statutorily-enumerated relationship to the commissioner. CEO 85-46 is referenced.¹

QUESTION:

Would a county commissioner be presented with a voting conflict of interest under Section 112.3143(3)(a), Florida Statutes, regarding a measure to purchase land for a county airport buffer, where a company owned in part by persons whose family holding company owns a company the commissioner works for conveyed the land to the current owner and holds a mortgage on the land?

Under the circumstances presented, your question is answered in the negative.

By your letter of inquiry, documents accompanying the letter, and additional information provided by you in response to a request from our staff, we are advised that Joseph A. Parrish (Commissioner) serves as Chairman of the Franklin County Commission. In addition, we are advised that the County owns a regional airport, originally constructed during World War II, which has three concrete runways, each approximately one mile long, and that the Federal Aviation Administration (FAA), the Florida Department of Transportation (FDOT), and the County have spent millions of dollars maintaining and improving the airport. Further, we are advised that the County manages the airport through an airport manager and an airport advisory committee, but that the County Commission has reserved to itself final decisionmaking regarding the airport. Continuing, you advise that the committee reports that in approximately 2006 (and prior to the Commissioner's election to the County Commission in November 2006), the FAA recommended to the committee that the County purchase property outside the airport which abuts the main runway, in order to protect the aerial approach to the runway by removing the land from the private market in order to prevent housing or other development from locating within the aerial approach, and that the committee has recommended the purchase. Also, we are advised that a natural person (landowner), who is treated more particularly below, has 51 acres of land available for purchase by the County.

Additionally, we are advised that beginning in May 2009, at multiple meetings, the County Commission considered whether to enter into a contract to purchase land abutting the runway, with the Commissioner abstaining from each of the two votes which were taken because at the time of the votes the land was owned by a company, one of the managing members of which also is a managing member of a company which has employed the Commissioner for over twenty years. The result, you advise, was that the County Commission votes split 2-2, with the Commissioner abstaining, resulting in the County's not acting to purchase the land.² However, you advise, since the second vote, 51 acres of abutting land was sold from the company (seller/lender) which owned the land at the time of the previous votes to the landowner³ for $9,000 per acre (the same price as a per-acre price offered to the County previously),⁴ with the seller/lender financing one hundred percent of the purchase price via a note and mortgage from the landowner to the seller/lender, under circumstances indicative of an arm's length transaction.⁵

Expounding the relationships, or lack of relationships, between the Commissioner and persons or entities relevant to your inquiry, you advise that neither the Commissioner nor an entity owned by the Commissioner is employed by or contracts with the landowner or an entity owned by the landowner; that the Commissioner and the landowner are not "business associates" one to another within the meaning of Section 112.312(4), Florida Statutes; that the Commissioner and the landowner are not "relatives" of each other within the meaning of the voting conflicts law; that the Commissioner is not employed by and has no business relationship with the seller/lender; and that the seller/lender has assets other than the landowner's loan/note/mortgage (namely, an additional 1,592 acres of land). Further, we are advised that although one hundred percent of the purchase price was financed, the note will become due in full three months after it was entered into by the landowner, and that the landowner's financial situation is such that he will be able to timely pay the note in full and not default, whether or not he and the County close a sale of the land encumbered by his mortgage to the seller/lender.⁶

Focusing on the Commissioner's employer and related matters, we are advised that the seller/lender is owned by four individuals (WMW, MPW, SD, and TS), each of whom own twenty-five percent; that the company (a seafood sales company) which employs the Commissioner is owned entirely by a family holding company, 6.49 percent of which is owned by WMW and none of which is owned by MPW;⁷ that both WMW and MPW are co-managers of the seller/lender; that WMW manages the seafood company, is a co-manager of the family holding company, and is a co-trustee of a trust; that the Commissioner works only for the seafood company; that MPW is not a manager of the seafood company, is not a manager of the family holding company, and no longer owns any interest in the family holding company, having sold all of her interest in the company to the trust on or about February 2009; and that the seafood company which employs the Commissioner will not be affected by the County's purchase, or failure to purchase, the landowner's property.

Thus, you relate, because the County Commission may consider purchase of the landowner's property, the Commissioner seeks our guidance as to whether he will be presented with a voting conflict, given the circumstances set forth herein.

Section 112.3143(3)(a), Florida Statutes, is the portion of the voting conflicts law, contained within the Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes), which is applicable to local, elected, public officers such as county commissioners. Section 112.3143(3)(a) and Sections 112.3143(1)(b) and 112.312(4), Florida Statutes, which relate to it, provide:

VOTING CONFLICTS.—No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure 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 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 an 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. [Section 112.3143(3)(a), Florida Statutes.]

‘Relative’ means any father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, or daughter-in-law. [Section 112.3143(1)(b), Florida Statutes.]

'Business associate' means any person or entity engaged in or carrying on a business enterprise with a public officer, public employee, or candidate as a partner, joint venturer, corporate shareholder where the shares of such corporation are not listed on any national or regional stock exchange, or coowner of property. [Section 112.312(4), Florida Statutes.]

In order for the Commissioner to be presented with a voting conflict, the vote (measure) to purchase the land must inure to the special private gain or loss of (must directly affect) the Commissioner personally or a person or entity to whom the Commissioner stands in a relationship enumerated under the statute.

Under the situation presented, we find that the Commissioner will not be presented with a voting conflict regarding measures to purchase the land. The circumstances presented do not indicate that the Commissioner personally owns the land such that he would receive/not receive money from the County's purchase/failure to purchase the land, or that he himself similarly or otherwise would be directly affected by such a measure. And the circumstances do not indicate that any person or entity standing in a relationship to the Commissioner listed in the statute would be directly affected. More particularly, while the landowner would be directly affected, the facts presented do not indicate that he is a principal/employer, relative, or business associate of the Commissioner's. Also, the situation does not indicate that the seller/lender (which formerly owned the land) stands in an enumerated relationship to the Commissioner and does not indicate that the seller/lender would be affected by the County's purchase/failure to purchase, especially given the facts presented regarding the financial health of the landowner. See CEO 85-46 in which we opined, under facts very similar to the situation presented herein, that a city commissioner was not presented with a voting conflict regarding a petition for annexation of property where a developer employing the commissioner had sold the property but retained a mortgage on the property, reasoning that any gain or loss to the developer/mortgage holder to be derived from the annexation would be remote and speculative. Regarding the person (WMW) represented to us as being both a twenty-five percent owner of the seller/lender and a part owner of the family holding company which is the full owner of the seafood company for which the Commissioner works, we do not find that a sale/lack of sale of the land to the County would affect him, given that it would not affect the seller/lender of which he is an owner, and we do not see circumstances presented which would indicate that he, rather than the seafood company, would be the Commissioner's principal/employer. Regarding the seafood company for which the Commissioner works, the facts presented do not indicate that it would be directly affected by any sale/lack of sale of the land.⁸

Accordingly, under the material facts represented to us, we find that the Commissioner will not be presented with a voting conflict regarding County Commission measures/votes to purchase property for the airport from the landowner.

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 24, 2009 and RENDERED this 29th day of July, 2009.

____________________________________

Cheryl Forchilli, Chair

^[1] Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us) or may be obtained directly from the Commission.