VOTING CONFLICT
CITY COMMISSIONERS WHO OWN BUSINESSES FREQUENTED
BY CRUISE SHIP PASSENGERS VOTING ON MEASURE TO
SEEK CHANNEL-WIDENING FEASIBILITY STUDY
To: Name withheld at person's request (City of Key West)
SUMMARY:
City commissioners who own businesses in an area frequented by cruise ship passengers are not presented with a voting conflict under Section 112.3143(3)(a), Florida Statutes, regarding a commission vote/measure to seek a channel-widening feasibility study. Under the circumstances presented, any gain or loss to their businesses from increased patronage due to a widening enabling port calls by larger ships with more passengers would be remote and speculative, given the many steps and hurdles, in addition to a commission vote seeking a study, necessary to achieve the widening. CEOs 06-21, 05-15, and 94-15 are referenced.1
QUESTION:
Are city commissioners who own businesses frequented by cruise ship passengers presented with a voting conflict under Section 112.3143(3)(a), Florida Statutes, regarding a measure to seek a channel-widening feasibility study that could ultimately result in the future widening of the channel and an increase in the number of cruise ship passengers visiting the city and their businesses?
Under the situation presented, your question is answered in the negative.
By your letter of inquiry and additional information provided to our staff, you relate that … and … both serve as members of the Key West City Commission. You state that Commissioner … owns a bar/entertainment complex, that Commissioner … owns a grocery store, and that both Commissioners' businesses are located in the area of the City most frequented by passengers from cruise ships making calls at the City's port. Also, you relate that members of the City Commission and City administrative staff have contemplated seeking a feasibility study to determine the potential impacts of widening the Key West Harbor channel. You state that while widening would allow larger vessels to safely navigate a narrow area, the primary result of widening would be to enable larger cruise ships to visit the City. Continuing, you relate that in November 2010 the U.S. Army Corps of Engineers completed a Reconnaissance Report finding a federal interest in national water policy and economic development exists for navigation improvements to the Harbor, and that in order to make any substantial modifications to the channel, it would be necessary to obtain Congressional support for certifying the Report and initiating a feasibility study. Further, you state that the estimated length of time to conduct and complete the feasibility study is four years; that following the study, regulations currently prohibiting dredging in the Florida Keys National Marine Sanctuary would have to be altered (which would require Congressional action or approval) in order to allow the widening; that if the regulations are so altered, funding for the widening would have to be obtained; and that achieving widening would take twelve to fifteen years, at an estimated cost of approximately thirty-six million dollars.
In addition, you relate that in fiscal year 2010-2011, during 359 port calls, 852,673 cruise ship passengers visited the City, the bulk of passengers remaining in the downtown, or "Old Town," area. You state that many of those visitors frequented the sightseeing operations, stores, restaurants, bars, and other businesses in this area, with a particularly high concentration of cruise ship passengers visiting along Duval Street and its immediate vicinity. Regarding the Commissioner who owns the bar, you state that while a precise measurement is impossible, the Commissioner's business undoubtedly receives patronage from cruise ship passengers. As to the Commissioner who owns the grocery store, you relate that the store is located approximately one-half block off Duval Street, but approximately four blocks from the location of the bar owned by the other Commissioner.
The voting conflicts law applicable to local elected public officers such as city commissioners is Section 112.3143(3)(a), Florida Statutes. It 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.
The statute requires declaration of interest, abstention from voting, and the timely filing of a memorandum of voting conflict (CE Form 8B) regarding votes/measures of an officer's public board which would result in special private gain or loss to the officer, or which he knows would result in a special private gain or loss to certain other persons or entities standing in a relationship to the officer as listed in the statute.
In a number of opinions we have found that Section 112.3143(3)(a) is not applicable when the gain or loss is "remote and speculative." That is, we have found that if there is uncertainty at the time of the vote as to whether the measure will directly affect the officer or any of the listed others and, if so, what the nature or magnitude of the gain or loss might be, the measure/vote does not require the officer's declaration, abstention, and filing. See, for example, CEO 05-15 (city commissioner voting on amendments to affordable housing ordinance) and CEO 06-21 (town commissioner voting on land use matters). In CEO 05-15, many events, in addition to amendment of the ordinance, including approval of the proposed amendments by the then-existing State Department of Community Affairs, would have to have occurred in order for the commissioner's law client, a developer, to engage a housing project (to realize gain). In CEO 06-21, many hurdles would have to have been overcome, in addition to the town land use votes, before the commissioner's companies could realize any profit on their developments. Also, see CEO 94-15, in which we found that an inlet tax district commissioner was not prohibited from voting on measures to spend public funds for beach erosion studies, reasoning that any gain to the commissioner, who owned beachfront property downdrift of the inlet causing beach erosion, from such votes/measures would be remote and speculative.
Similarly, we find that in the situation presented there is significant uncertainty as to whether a City Commission vote to seek a channel-widening feasibility study would ever result in gain or loss to the Commissioners' businesses. So many events and approvals, including Congressionally-sanctioned changes to Marine Sanctuary regulations, would have to occur over such a long period of time before any benefit from larger cruise ships carrying more potential customers could be realized, that any gain or loss from the passage of a measure seeking a feasibility study is remote and speculative.
Accordingly, we find that the Commissioners will not be presented with a voting conflict regarding a measure to seek a feasibility study as to the potential widening of the Key West Harbor channel.
ORDERED by the State of Florida Commission on Ethics meeting in public session on February 3, 2012 and RENDERED this 8th day of February, 2012.
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Robert J. Sniffen, Chairman
[1]Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).