VOTING CONFLICT; CONFLICT OF INTEREST

CITY COUNCILMAN VOTING ON MATTERS AFFECTING DEVELOPER OF
PROPERTY ADJACENT TO HIS PROPERTY AND WITH WHOM HE HAS A
CONFIDENTIAL SETTLEMENT AGREEMENT ARISING OUT OF CIVIL
LITIGATION ASSOCIATED WITH DEVELOPMENT PROJECT

To: Mr. Andrew W. J. Dickman, Esq. (Ft. Myers)

SUMMARY:

A city councilman was not presented with a voting conflict under Section 112.3143(3)(a), Florida Statutes, regarding a measure concerning the city's relinquishment of an outfall easement to a development within seven hundred and fifty feet of the councilman's property. Under the circumstances presented, there is no voting conflict where he is called upon to vote on matters affecting a developer with which, as a result of personal civil litigation, he has a confidential settlement agreement. Additionally, under the circumstances the settlement agreement is not prohibited by Section 112.313(7)(a), Florida Statutes. CEO 96-31, CEO 99-7, and CEO 99-13 are referenced.

QUESTION 1:

Was a city councilman presented with a voting conflict under Section 112.3143(3)(a), Florida Statutes, regarding the city's relinquishment of an outfall easement to a developer who was building a development on land that was within seven hundred and fifty (750) feet upstream of his land?¹

Solely in the context of these limited facts, your question is answered in the negative.

You advise that you are seeking this opinion on behalf of your client, Warren Wright, who serves as a Ft. Myers City Council member (herein "your client" or "Councilman"). Through your request for advisory opinion and subsequent communications with our office, you advise the following:

The Councilman has owned property on Billy's Creek in Fort Myers for several years, situated approximately seven hundred and fifty (750) feet downstream from a residential project being developed by a development company (herein "Developer"). On January 25, 2006, the City's Board of Adjustment granted conditional uses and zoning variances to Developer.² Because of concern over the environmental impacts of the variances on lands downstream from the development, your client and another individual filed in circuit court a Petition for Writ of Certiorari and Declaratory and Injunctive Relief.

The circuit court granted, in part, a motion to dismiss. As a result of the court's order, the other individual was dismissed with prejudice. However, the Councilman was granted leave to amend the petition/complaint. Shortly thereafter, your client and the developer reached a settlement agreement. The settlement agreement contained a confidentiality provision. Also, your client agreed not to initiate, participate in, fund, or otherwise contribute to a challenge to the development.³ This is explained to mean that it:

includes the promise by Challengers not to oppose any phase, component, element, permit, approval, permission, amendment, interpretation, determination or other action authorizing the development of the Project. Unless the Developer is in default of its obligations under this Agreement, Challengers will not file any paper, appeal, judicial, or administrative paper, or otherwise lobby to challenge the project.

Under these provisions, your client has an ongoing duty to maintain the terms of the agreement. The Agreement is enforceable against your client through the courts, where the Developer would be legally entitled to seek monetary damages or any other remedy available at law.

After the settlement agreement was approved by all parties, Developer sought to get an easement in favor of the City lifted. That easement was an outfall easement which contained piping to divert water flow. The outfall easement was no longer in use by anyone. In order for the easement to be lifted, the City Council had to consent to ending the easement grant. The matter was scheduled for a vote on June 4, 2007. You advise that City staff recommended approval of the relinquishment of the easement. The Public Works Department, as well as the utilities companies, had no objection to the City relinquishing the easement. You further advise that the City Council approved the measure unanimously. Your client was among those who voted to relinquish the easement. You advise that your client voted on the matter because he believed the matter was merely a housekeeping item, that the item was not controversial, and that there was no benefit to himself. Your client also was concerned that if he did abstain from the vote he would be required to disclose the reason for his abstention, the confidential settlement agreement. The Developer has not been before the Council other than for this one vote to relinquish the easement.

In light of the foregoing facts, you first inquire whether your client violated the Code of Ethics by voting on the relinquishment of the easement to the developer. Your inquiry implicates Section 112.3143(3)(a), Florida Statutes, which provides:

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.

This provision prohibits a city councilman from voting on a measure that would inure to his own special private gain or loss, the special private gain or loss of a relative, or the special private gain or loss of a business associate. Additionally, the provision prohibits voting on a matter which would inure to the special private gain or loss of any principal (or parent or subsidiary of a corporate principal) by whom the councilman is retained. In the event that a voting conflict is present, Section 112.3143(3)(a) requires abstention and certain other procedures to be followed.

It is apparent that, under these circumstances, the vote to relinquish the easement to the Developer would not inure to the Councilman's special private gain or loss. You have advised that the outfall easement did not touch the Councilman's property. Rather, the Councilman's property is approximately seven hundred and fifty feet downstream and is situated on the opposite side of Billy's Creek from the development. Additionally, relinquishment of the easement would not affect the size of the Councilman's land; nor would relinquishment of the easement affect any other property rights of the Councilman. You also advised that the outfall piping was no longer in use. Since the outfall was no longer being utilized, there would be no impact upon the Councilman's land. There also would be no effect upon the flow of Billy's Creek. There also is no indication that relinquishment of the easement would affect the value of real estate in the area around the development.

Under these circumstances, it is also clear that the vote would not inure to the special private gain or loss of a principal by whom your client was retained. Your client was not retained by the Developer. Rather, there was merely a contractual relationship resulting from the settlement agreement. It is equally clear that Developer is not a business associate of your client. "Business associate" is defined in Section 112.312(4), Florida Statutes, as:

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.

You advise that your client is not a partner, joint venturer, corporate shareholder of a corporation not listed on a stock exchange, or coowner of property with the Developer. Therefore, your client is not engaged in business with, or carrying on a business enterprise with, the Developer.

In light of the foregoing, we find that the subject Councilman was not prohibited by Section 112.3143(3)(a) from voting on the City's relinquishing the outfall easement to the Developer.

QUESTION 2:

Was a prohibited conflict of interest created by the confidential settlement agreement between the Councilman and the Developer?

In light of the facts and circumstances presented in this inquiry, we answer this question in the negative.

You advise that when the Planning and Zoning Board approved conditional uses and variances to the Developer, your client and another individual proceeded with legal action to enjoin the Developer and reverse the granting of the conditional uses and variances.⁴ You further advise that the other individual was dismissed from the lawsuit by the court. However, your client was provided an opportunity to amend his pleadings. During this time, you advise, your client and the Developer reached an agreement to end the litigation. The conditions of the agreement required confidentiality as to the terms of the settlement and refraining from opposing the development of the Project, as described above. These facts give rise to the question of whether the relationship between the Councilman and the Developer is, or was, a conflicting contractual relationship prohibited by Section 112.313(7)(a), Florida Statutes.

Section 112.313(7)(a), Florida Statutes, provides:

(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…; 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.

Section 112.313(7)(a) has two separate clauses. The first clause prohibits a city councilman from having employment or contractual relationships with any business entity that is subject to the regulation of, or doing business with, his agency. The second clause of Section 112.313(7)(a) prohibits employment or contractual relationships that would lead to a continuing or frequently recurring conflicts of interest or that would impede the full and faithful discharge of his public duties.

We first examine what constitutes the Councilman's agency for purposes of Section 112.313(7)(a). "Agency" is defined at Section 112.312(2), Florida Statutes, as:

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.

In previous opinions, we have opined that a city councilman's agency for purposes of Section 112.313(7)(a), Florida Statutes, is the city council. See CEO 99-7, CEO 99-13, and CEO 96-31. There is no reason in this case to determine otherwise. Having determined that the Councilman's agency is the City Council, we must next examine the nature and extent of the relationship between the Developer and the City.

You advise that the City zones property. You further advise that, by ordinance, the City has relinquished matters relating to the conditional uses and variances to the Board of Adjustment. You advise that appeals from decisions of the Board of Adjustments do not go before the City Council, but rather are reviewable only by the courts. You know of no other matters pending before the City regarding the Developer, and at this time you anticipate no further matters arising before the City Council. You indicate that the only time the City Council might become involved in development projects is if the project is a planned unit development. The Project at issue here is not a planned unit development.⁵

In CEO 99-7, we found that a city commissioner, who was a State certified building contractor, would not violate the first part of Section 112.313(7)(a) by his employment as a contractor. Specifically, we found that:

Any regulation of building contractors, their companies, or their clients occurring within the City is the responsibility of the City's building/inspection department/division, an "agency" separate and distinct from the City Commission.

In light of our previous opinion, it is clear that the contractual relationship between your client and the Developer would not be prohibited because the Developer is not subject to the regulation of the City Council, but rather is subject to the regulation of the Board of Adjustment and the City's building department. Second, this conclusion is bolstered by the representations that there is no indication that the Project or the property mentioned in the settlement agreement is likely to come before the City Council in the future. Finally, you advise that you know of no other business between the City Council and the Developer. In light of these representations, it is clear that there is no prohibited contractual relationship with a business entity subject to the regulation of, or doing business with, the City Council. Therefore, this contractual relationship is not prohibited by the first part of Section 112.313(7)(a).

The second clause of Section 112.313(7)(a) does not prohibit the relationship here because there is no evidence of a continuing or frequently recurring conflict or impediment to public duties. This is especially true where, as here, there is no indication that any matters affecting the Developer are likely to come before the City Council. Nor is there any indication that the (formerly confidential) settlement agreement would impede the full and faithful discharge of the Councilman's public duties. In this case, the Councilman's public duties are separate and distinct from his duties as a party to the settlement agreement.⁶ The duties imposed under the settlement agreement do not coincide to create a situation which tempts dishonor. In fact, the opposite intent is evident from the settlement agreement. Paragraph 4 contains both parties' recognition that "Challenger Wright expressly does not waive his duties obligations, responsibilities, and rights as an elected official to fairly consider Developer's project at [the other location] should Developer seek a development order(s) from the City while Challenger Wright is in office." Though arguably only applicable to any development at the other location, the foregoing demonstrates the parties' recognition of the Councilman's public duties and the Councilman's intent to fairly consider any matters regarding the Developer brought to the City Council.⁷ Additionally, it is not anticipated that any matters regarding zoning and land use affecting the Developer would come before the Councilman's agency. In sum, there are no continuing or frequently occurring public duties that relate to, or affect, the Developer and therefore no temptation to dishonor one's public duties.

Accordingly, we find that the settlement agreement did not create a prohibited conflict of interest.

ORDERED by the State of Florida Commission on Ethics meeting in public session on January 25, 2008 and RENDERED this 30th day of January, 2008.

____________________________________

Albert P. Massey, III, Chairman

^[1]We note that we do not normally review previous votes of public officers in an advisory opinion. Advisory opinions are usually reserved for those matters that are ongoing or are likely to occur in the foreseeable future. Because of the ongoing contractual relationship arising from the settlement agreement, we address all questions presented including the vote already taken.