SUMMARY:
A city mayor is not presented with a voting conflict of interest under Section 112.3143(3)(a), Florida Statutes, regarding measures concerning a commuter rail station in the city, because any gain or loss to the mayor's employer (a hospital corporation issued a development order by a neighboring city) from the measures would be remote or speculative. CEO 88-18, CEO 02-13, and CEO 08-11 are referenced.1
QUESTION:
Is a city mayor presented with a voting conflict of interest under Section 112.3143(3)(a), Florida Statutes, regarding measures concerning a commuter rail station within the city, where he is employed by a hospital corporation which operates a hospital in the city and which is subject to a development order (in a neighboring city) containing provisions regarding commuter rail?
Under the circumstances presented, your question is answered in the negative.
By your letter of inquiry, accompanying materials, and a supplemental letter, we are advised that … serves as Mayor of the City of Winter Park. In addition, we are advised that the Mayor is employed by a hospital corporation which operates a hospital in the City and which also has facilities in the City of Orlando. Further, we are advised that the corporation is subject to a development order (concerning its facilities and development interests) issued by Orlando, which, among other things, requires that the corporation will fund all costs associated with the construction of a commuter rail station within Orlando,2 imposes a significant reduction in the approved amount of facility space and hospital beds in the event that commuter rail is not completed (and in the event that suitable transportation mitigation alternatives are not reached between the State Department of Transportation, Orlando, and the corporation), and requires that the corporation pay transportation subsidies based on the extent of commuter rail usage by its employees.
More specifically, regarding commuter rail, we are advised that the Legislature, in 2009, approved a 61.5 mile project, beginning in Volusia County, extending through Orange County (including within the City and Orlando), and ending in Osceola County; that you are aware of no facts showing that the project will not go forward without its including a stop (station) in the City; that the project legislation, as well as interagency agreements, do not mention a stop within the City as being a condition of the project's being built; and that the agreement between the City and Orange County provides that if the City withdraws from the agreement, it will close its station (stop) and the service will continue without the City's participation and without a stop in the City.3 Further, you advise that many approvals or events would have to occur in order for the rail project to be built, such as FDOT's success in purchasing the 61.5 miles of track from a railroad company, securing of a funding agreement with the Federal government, purchasing private property contemplated by the initial design and construction of the project, and satisfaction of environmental impact conditions.
Thus, you inquiry in behalf of the Mayor as to whether measures of the City Commission4 concerning a station within the City would present him with a voting conflict under Section 112.3143(3)(a), Florida Statutes.
The law provides:
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.]
Under this law, an official is presented with a voting conflict (requiring his declaration, abstention, and filing of CE Form 8B) when the measure directly would cause special private gain or loss to the official, to his employer (principal), or to certain other enumerated persons or entities. Thus, we have not found a voting conflict in situations where, at the time of the vote, there was uncertainty as to whether there would be any gain or loss, and if so, what the nature and magnitude of the gain or loss might be. See Gonzalez and Claypool, Voting Conflicts of Interest under Florida's Code of Ethics for Public Officers and Employees, XV Stetson Law Review 675 (1986).
Regarding the situation presented concerning the Mayor, we find that any gain or loss to his employer (the hospital corporation),5 from votes/measures concerning the rail station in the City, similarly would be remote or speculative, and thus that he would not be presented with a voting conflict under Section 112.3143(3)(a).6 More particularly, while the development order issued by Orlando to the corporation contains financial and construction contingencies based upon the presence or absence of commuter rail, under the order, these contingencies are not triggered by or dependent on the presence or absence of a station in the City. Rather, the contingencies (limitations or effects as to the corporation's development rights/property in Orlando) relate to projected commuter rail transit ridership (in Orlando). That is, the situation does not show any direct, known effect on the corporation which would be occasioned by a station or lack of a station within the City; rather, the presence of commuter rail and construction of a station within Orlando (of which the Mayor is not a public officer), at locations very near the corporation's property in Orlando and regarding which the corporation has definite, enforceable obligations and entitlements under the development order, would be a source of a direct gain or loss.
Accordingly, under the circumstances presented, we find that the Mayor would not be presented with a voting conflict under Section 112.3143(3)(a), Florida Statutes,7 regarding measures concerning a commuter rail station within the City he serves as Mayor.8
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 16, 2010 and RENDERED this 21st day of April, 2010.
__________________________
Roy Rogers
Chairman
[1] Prior opinions of the Commission on Ethics may be obtained from its website (http://www.ethics.state.fl.us/) or may be obtained directly from the Commission.
[2]The development order specifies that the location of the station in Orlando will be between one of the corporation's parking garages and a road located within Orlando.
[3]You advise that the Mayor does not own property near or associated with locations considered for a station in the City and that his position, salary, and benefits with the corporation are not contingent, either directly or indirectly, upon the existence of commuter rail or the presence of a station in the City. And you advise that you are aware of no facts showing that the corporation's hospital in the City (the place where the Mayor works day-to-day) owns property or property interests at or near sites considered for the station within the City; that a station within the City will not impact ingress or egress to the hospital in the City; and that the hospital has no construction plans contingent on the presence or absence of a station within the City.
[4]You advise that the votes/measures will involve the presence of a station in the City, the specifications for the station, and the terms and conditions under which the City may share in the responsibility to maintain the station and fund its operation.
[5]The situation presented does not indicate that the corporation has any property within the City which would be affected by measures concerning a station within the City, and does not indicate that any measures/votes would affect the Mayor personally.
[6] While we cannot definitively, in the context of an advisory opinion, determine issues regarding Section 112.313(6), Florida Statutes, we see no indication that the Mayor's completing a Florida Senate Committee Appearance Record (sign-up-to-speak-to-an-issue-before-a-committee form), identifying himself as Mayor, was a corrupt use of public position under the statute. CEO 02-13. Also, the Mayor's campaign promise to bring commuter rail to the City does not implicate Section 112.3143(3)(a); the statute does not relate to possible political bias or prejudice. CEO 88-18.
[7]Although not required to declare, abstain, and file under Section 112.3143(3)(a), it appears that the Mayor can do so, if he desires, under Section 286.012, Florida Statutes, based upon a possible business/economic effect on the corporation. CEO 08-11.
[8]However, if, in the future, City measures/votes, if any, which indicate a more certain, concrete effect on the Mayor's employer (the corporation), concerning the station within the City or other subjects, present themselves, he should declare, abstain, and file under Section 112.3143(3)(a), or you should contact us or our staff for further advice prior to a vote.