CEO 20-11—October 23, 2020
VOTING CONFLICT OF INTEREST
COUNTY COMMISSIONER/RAIL COMMISSION MEMBER
EMPLOYED BY ENTERTAINMENT COMPANY
VOTING REGARDING MEMORANDUM OF UNDERSTANDING
OR RESOLUTION OF SUPPORT
CONCERNING RAIL SYSTEM EXPANSION
To: Paul H. Chipok, Deputy County Attorney (Seminole County)
A member of a rail commission is presented with a voting conflict regarding a measure requesting a memorandum of understanding between the commission, the State's department of transportation, and a rail company regarding expansion of rail service, or regarding a resolution of support for expansion between the commission and the company.
Is a member of a rail commission presented with a voting conflict regarding a measure requesting a memorandum of understanding between the commission, the State's department of transportation, and a rail company regarding expansion of rail service, including expansion of service in the area in which the commissioner's employer (an entertainment company) is located?1
Under the circumstances presented, Question 1 is answered in the affirmative.
Via email communications with our staff and accompanying documents, you relate that a member of the Central Florida Commuter Rail Commission (CFCRC),2 who sits on the CFCRC as Seminole County's representative (member),3 is employed by the Disney corporation (Disney). You state that Brightline Trains Florida LLC (Brightline), a rail company, has approached the CFCRC requesting an agreement, a memorandum of understanding (MOU),4 and that the request possibly could be considered by the CFCRC on October 29.5 The parties to the MOU would be the Florida Department of Transportation (FDOT), Brightline, and the CFCRC. Brightline's system, which is operational between Miami, Fort Lauderdale, and West Palm Beach, currently is under construction to expand the system to Orlando International Airport; and Brightline is planning to extend its intercity passenger train service from the Airport to Tampa, with a planned stop in the Walt Disney World Resort area and with other potential stops. The MOU would commit its parties to outreach, project development, and grant-seeking, regarding the extension from the Airport to Tampa (including the Disney World stop and other potential stops).
You relate that the MOU is not a final authorizing document; rather, it is an exploratory document to enable its parties' staffs to research the types of documents and agreements that will need to be created and authorized to implement the project. In addition, you state that any final actions on the types of permit applications and subsequent agreements that will be developed as an outgrowth of the MOU will need to be vetted and separately approved by the CFCRC.
Applicable law6 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.]
"Special private gain or loss" means an economic benefit or harm that would inure to the officer, his or her relative, business associate, or principal, unless the measure affects a class that includes the officer, his or her relative, business associate, or principal, in which case, at least the following factors must be considered when determining whether a special private gain or loss exists:
1. The size of the class affected by the vote.
2. The nature of the interests involved.
3. The degree to which the interests of all members of the class are affected by the vote.
4. The degree to which the officer, his or her relative, business associate, or principal receives a greater benefit or harm when compared to other members of the class.
The degree to which there is uncertainty at the time of the vote as to whether there would be any economic benefit or harm to the public officer, his or her relative, business associate, or principal and, if so, the nature or degree of the economic benefit or harm must also be considered. [Section 112.3143(1)(d), Florida Statutes.]
We find that the member will be presented with a voting conflict under Section 112.3143(3)(a), Florida Statutes,7 as to the measure to enter into the MOU. This is because the principal by whom the member is retained (Disney) would be tangibly affected by the MOU; the circumstances show that the effect of the MOU on Disney would not be remote or speculative.
Question 1 is answered accordingly.
Is the member presented with a voting conflict regarding a measure requesting a resolution of support between the rail commission and the rail company regarding the expansion?
Under the circumstances presented, Question 2 is answered in the affirmative.
Subsequent to your earlier contact with our staff regarding Question 1, you provided a draft Resolution of Support (ROS) for the expansion, which likely will be considered by the CFCRC on October 29. The ROS would be entered into by the CFCRC and Brightline. The ROS's contents are very similar to those of the MOU in Question 1.
For the reasons we found a voting and a participation conflict for the member as to the MOU, we also find such conflicts for him as to the ROS,8 as the circumstances show that the member's principal (Disney) would be tangibly affected by the ROS and that the effect would not be remote or speculative.
Question 2 is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on October 23, 2020, and RENDERED this 28th day of October, 2020.
Daniel Brady, Chair
In addition, you also asked whether the member (as a County Commissioner) would be presented with a voting conflict (on September 22) as to a measure requesting the County Commission's endorsement of (support for) the MOU. Due to the date of the County Commission measure in relation to our meeting schedule (October 23 meeting), you relate that the member abstained from the September 22 vote.
The CFCRC is a legal entity and public body and a unit of local government, in accord with Section 163.01, Florida Statutes (INTERGOVERNMENTAL PROGRAMS); and "agency" is defined in Section 112.312(2), Florida Statutes, to mean
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.
The member was appointed to the CFCRC by the Seminole County Board of County Commissioners..
You write that the member has had no prior involvement with Brightline or with the subject of the MOU.
It is possible, but not likely, that the MOU may be considered. However, it is more likely that the Resolution of Support (ROS), see Question 2 of this opinion, will be considered instead.
"Principal by whom retained" includes one's client, employer, or the parent, subsidiary, or sibling organization of one's client or employer. Section 112.3143(1)(a), Florida Statutes.
And with a "participation" conflict under Section 112.3143(4), Florida Statutes. This statute applies to appointive officers; and the member is such in his status on the CFCRC.
We hold to our finding of a voting and participation conflict for the member as to the ROS regardless of whether the draft version of the ROS (presented to us in writing), or a changed, amended, or different version of the ROS, were to come before the member's public body.