CEO 77-111 -- July 21, 1977

CONFLICT OF INTEREST

MEMBER OF WATER MANAGEMENT DISTRICT AND CHAIRMAN OF BASIN BOARD OWNER OF PROPERTY INDIRECTLY BENEFITING FROM WATER PROJECT

To: L. M. Blain, Attorney for Southwest Florida Water Management District, Tampa

Prepared by: Bonnie Johnson

SUMMARY:

The Code of Ethics for Public Officers and Employees prohibits a public officer from having a contractual relationship with an agency subject to the regulation of his public agency. However, this provision is not breached where a member of a water management district who also serves as ex officio chairman of a basin board owns property which indirectly would be affected by a water project which the district or board sponsors or participates in developing. When the project originally was begun in 1961, the subject officer, acting privately as a landowner, donated easements for construction or improvement of a natural drainway on his property. Such donation is not deemed to constitute a contractual relationship but, rather, a gift. Moreover, the easements were granted approximately 9 years prior to the individual's appointment to the water management district. Although no prohibited conflict therefore is deemed to be created, a voting conflict would exist were the board member to vote on either the project as a whole or on improvement of the ditch through his property, as either action would be of personal, private, and professional interest to the board member and would inure to his special private gain. Therefore, pursuant to s. 112.3143, F. S., should he choose to exercise his right to vote, he is required to file a memorandum disclosing the conflict within 15 days after the vote occurred.

QUESTION:

What is the standard of public duty of one who serves as a member of a governing board of a water management district and as chairman ex officio of a basin board, were the district or basin board to sponsor or participate in the development of a water project which would indirectly benefit property owned by the subject chairman/board member?

You have advised in your letter of inquiry and in telephone conversation with our staff that Mr. Turner was appointed to the Southwest Florida Water Management District (SWFWMD) in 1976. He resides within a part of the district designated as the Manasota Basin of SWFWMD and serves as the ex officio chairman of the basin board pursuant to s. 373.0693(6), F. S. As ex officio chairman, he is required to preside over meetings of the board, but has no official vote except in the case of a tie. He is designated by statute as the liaison officer between the district and the basin, and he determines the dates, times, places, and agendas for basin board meetings.

Pursuant to federal Public Law 566, Sarasota County is sponsoring the Sarasota West Coast Watershed Project, also known as the Cowpen Slough Project, within that county. Originally designed in 1961, the project has been dormant for a number of years. However, the Board of County Commissioners of Sarasota County and the Sarasota Soil Conservation District have requested the State Conservationist of the Soil Conservation Service to develop and implement a supplemental plan to bring the project to a conclusion.

It is contemplated that SWFWMD and the Manasota Basin Board will be asked to participate in developing the supplemental plan and, in fact, may be requested to assume some degree of sponsorship of the project. Although the project probably will be modified substantially, the 1961 plan included construction or reconstruction of drainage facilities which pass through approximately 3 miles of property owned by Mr. Turner or members of his family, easements to which were donated approximately 10 years ago. Although the drainage facility was not designed in 1961 primarily to benefit the Turner property, but rather was selected because it follows a natural drainage ditch, construction or improvement of the drainway could indirectly benefit the property.

The Code of Ethics for Public Officers and Employees prohibits a public officer from having a contractual relationship with an agency subject to the regulation of his public agency. Section 112.313(7)(a), F. S. 1975. However, we do not deem the voluntary granting of an easement to constitute a contractual relationship but, rather, a gift. Moreover, were such donation of rights-of-way to be considered contractual, the terms of such contract would have been fulfilled at the time the easements formally were granted, i.e., approximately 9 years before Mr. Turner was appointed to SWFWMD. Accordingly, we find no prohibited conflict of interest in the situation you have described.

In relation to voting conflicts of interest, however, the Code of Ethics provides as follows:

No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, within 15 days after the vote occurs, disclose the nature of his 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, F. S. 1975.]

Inasmuch as the project as a whole, and the 3-mile ditch through the Turner property in particular, would be of personal, private, and professional interest to Mr. Turner and would inure to his special gain, a vote on either matter would constitute a voting conflict within the terms of the above-quoted provision. Therefore, should Mr. Turner choose to vote, he is required to file a memorandum disclosing such conflict within 15 days after the vote occurred.