CEO 78-92 -- December 21, 1978

VOTING CONFLICT OF INTEREST

COUNTY WATER MANAGEMENT ADVISORY BOARD MEMBER EMPLOYED BY NONPROFIT, ENVIRONMENTAL ORGANIZATION

To: Ronald C. Dillon, Assistant County Attorney, Collier County, Naples

Prepared by: Phil Claypool

SUMMARY:

When a member of a county water management advisory board is employed by a nonprofit environmental organization to perform research and serve as technical advisor to its board of directors, such employment does not create a continuing or frequently recurring conflict between his private interests and the performance of his public duties in violation of s. 112.313(7)(a), F. S. 1977, based on the nature of his responsibilities to the organization and the organization's infrequent involvement with the water management advisory board. A comparison of the number of matters coming before the board with the number of projects on which the environmental organization has taken a stand indicates that a potential conflict would arise only infrequently. Also, because the organization does not appear before the board or, generally, even take a stand on a project until after the board has passed on it, the subject board member's responsibilities to the organization cannot be said to include giving advice or recommendations as to the organization's dealings with the board. Accordingly, under the circumstances of this particular case, the board member's employment with the environmental organization, although presenting a potential conflict of interest, does not result in a conflict of interest so substantial as to require him either to resign or to seek employment elsewhere.

Nor would a voting conflict of interest exist were the subject water management advisory board member to vote on an issue involving a developer whose development proposal is opposed by the environmental organization which employs him because such vote would not result in any special private gain either to the board member or to his principal, the organization, within the terms of s. 112.3143, F. S. Reading this provision in conjunction with s. 286.012, however, he would be authorized to abstain from voting in situations in which he has or appears to have a conflict of interest. Reference is made to CEO 78-34 in this regard.

QUESTIONS:

1. Does a prohibited conflict of interest exist when a county water management advisory board member is employed by a nonprofit, environmental organization to perform research and serve as technical advisor to its board of directors?

2. Would a voting conflict of interest exist were the subject county water management advisory board member to vote on an issue involving a developer whose development proposal is opposed by the nonprofit, environmental organization which employs him?

Your first question is answered in the negative.

In your letter of inquiry you advise that the Collier County Water Management Advisory Board (WMAB) has been established by the board of county commissioners to review and advise the commission on projects which would affect the surface or ground water of Collier County, including, but not limited to, the chemical and biological quality of the water. Additional projects which require a hearing by the WMAB prior to approval include petitions for rezoning, for platting of land, for bulkhead lines and for dredge and fill; permits for wells in excess of two inches in diameter; excavations and borrow pits; and other matters referred by the county commission. Section 1.05, County Ordinance No. 74-50. The WMAB also is authorized to recommend restriction of permits with such reasonable conditions as are necessary to conserve, protect, or manage waters within the county. Finally, if an application is rejected by the WMAB, the applicant may file a petition to obtain a hearing before the county commission. Section 1.05, County Ordinance 74-50.

You further advise that Mr. Yokel is employed full time by a nonprofit, environmental organization as the director of its marine station. Generally, you advise that the purpose of this organization is to preserve as much as possible of the county's beaches, waterways, islands, fisheries and wildlife. You advise that these objectives are accomplished by the purchase of sensitive wetland areas, and, as a last resort, by opposing those projects that the organization feels do not exhibit good environmental management. The organization maintains a marine station to provide facts on the function and value of these areas through monitoring the quality of coastal waters and conducting research on drainage problems, fish and wildlife breeding problems, beach erosion, finger canals, etc. You advise that Mr. Yokel, as director of the marine station, recommends appropriate research projects for the organization, assists in obtaining funding for such projects, and implements the projects. In addition, when requested by the board of directors of the organization, he advises them on the technical and environmental implications of proposed ordinances, changes in environmental regulations, and proposed developments of any land or wetland area.

You also advise that in the past, a particular developer has been opposed by this organization with respect to the proposed development of certain areas of the county. These permits presently are the subject of litigation, in response to which the developer has prepared a new development proposal which is pending before the WMAB.

The Code of Ethics for Public Officers and Employees provides in relevant part:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- 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 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), F. S. 1977.]

Under the facts you have outlined, it does not appear that the environmental organization which employs the subject WMAB member is subject to the regulation of or is doing business with the WMAB. Nor does his employment with that organization create a continuing or frequently recurring conflict between his private interests and the performance of his public duties, in violation of the above-quoted provision.

As a public officer, the subject WMAB member is responsible for advising the county commission on projects with wide ranges of environmental impact. As an employee of the environmental organization, on the other hand, he is responsible for advising that organization on the technical and environmental implications of proposed developments of any land or wetland area. In turn, this organization may attempt to persuade the county commission to go against the recommendations of the WMAB and ultimately may oppose the decision of the county commission. In this situation, the subject WMAB member faces a potential conflict of interest.

In a previous advisory opinion, CEO 78-12, we found no prohibited conflict of interest where an erosion prevention district board member was employed as the head of maintenance of the golf course of a large development within the district, as his responsibilities did not include the approval of or the giving of advice or recommendations as to the development's dealings with the erosion district. Conversely, in CEO 75-199, we found a prohibited conflict of interest where a planning commission member served as the director of planning for a private development company because his particular responsibility with the company, to promote zoning changes which would allow for further expansion of the corporation's developments, related directly to his public responsibilities as a member of the planning commission. Here, the subject WMAB member is involved in advising two groups, the county commission and the environmental organization, which have been on opposing sides in the past with respect to the same issue.

In a telephone conversation with our staff, the subject board member advised that he initially began commenting on this particular developer's proposals prior to his being employed by the environmental organization in January 1975. He also advised that the organization has never appeared before the WMAB to support or oppose a position or even to contribute information, as the WMAB constitutes the earliest stage in the permit process. However, the organization has taken positions on proposals in subsequent stages before the county commission, a regional planning board, or a state agency. Since the time he was first employed by the organization, he stated, it has taken a stand on only three or four projects, whereas the WMAB usually has from four to twelve items on each monthly agenda, most of which have an environmental impact. Further, he advised that in instances where he may have acted as a spokesman or prepared statements for the organization or for a coalition of environmental groups, he has been acting as a private citizen who shares similar concerns with the organization, and not as an employee of the organization under its direction and control. He noted additionally that during his service on the WMAB he has voted to approve applications of this particular developer a great majority of the time.

Under these circumstances we cannot find that the subject board member's private employment creates a frequently recurring conflict between his private interests and the performance of his public duties; nor does his employment impede the full and faithful discharge of his public duties. A comparison of the number of matters coming before the WMAB with the number of projects on which the environmental organization has taken a stand indicates that a potential conflict would arise only infrequently. Moreover, since the environmental organization does not appear before the WMAB or, generally, even take a stand on a project until after the WMAB has passed on it, we cannot say that the subject board member's responsibilities to the environmental organization include giving advice or recommendations as to the organization's dealings with the WMAB. See CEO's 78-12 and 75-199.

Section 112.313(7)(a) of the Code of Ethics requires that a prohibited conflict of interest be based upon certain conflicting employment. Thus, the personal views and environmental philosophy of the subject WMAB member are irrelevant to our considerations. Under the circumstances of this opinion, his employment with the environmental organization, although presenting a potential conflict of interest, does not result in a conflict of interest so substantial as to require him either to resign or to seek employment elsewhere.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit the subject WMAB member from being employed by a nonprofit, environmental organization to perform research and serve as technical advisor to its board of directors.

Your second question is answered in the negative.

The Code of Ethics provides in relevant part:

Voting conflicts. -- 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. 1977.]

Through your letter of inquiry and a telephone conversation with our staff, we are advised by the subject WMAB member that the property (referenced in your first question) which is to be developed adjoins the property on which the marine station is located. In addition, as referenced above, the environmental organization has taken a stand against the approval of the new development proposal.

In our opinion, if the subject WMAB member votes on permit applications of the developer, he will not have a voting conflict under s. 112.3143. That provision of the Code of Ethics requires a memorandum of voting conflict to be filed if the voting officer has a personal, private, or professional interest in the pending measure and if the measure inures to his special private gain or the gain of his principal, the environmental organization. Under the circumstances you have related, a permit application of the developer clearly will not inure to the special private gain of the subject WMAB member. Nor does it appear that the granting or denial of a permit would inure to the special gain of the environmental organization.

In addition, s. 286.012, F. S. 1977, provides:

Voting requirement at meetings of governmental bodies. -- No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act, and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is, or appears to be, a possible conflict of interest under the provisions of s. 112.311, s. 112.313, or s. 112.3143. In such cases said member shall comply with the disclosure requirements of s. 112.3143.

We have advised previously that this provision authorized a public officer to abstain in situations in which he has, or appears to have, a conflict of interest. Commission on Ethics Opinion 78-34. We recognize that the circumstances you have described give rise to the appearance that a WMAB member might not be able to remain independent and impartial (see s. 112.311(1), F. S.) when considering a permit application of the developer.

Accordingly, when the matters you have described come before the WMAB, the subject member may exercise his right to vote or he may abstain; in neither case, however, will he be required to file a memorandum of voting conflict.