12/12/2007
MARINE ADVISORY BOARD MEETING MINUTES
CITY OF CLEARWATER
December 12, 2007
Present: Paul J. Kelley Chair
Edward O’Brien, Jr. Board Member
F. David Hemerick Board Member
Mark A. Smith Board Member
Tim Trager Board Member
Tom Calhoun Board Member
Donald O. McFarland Board Member
Also Present: Bev Buysse Marine & Aviation Assistant Director
Gordon Wills Airport Operations Manager
Camilo Soto Assistant City Attorney – arrived 8:09 a.m.
Michael Delk Planning Director
Brenda Moses Board Reporter
The Chair called the meeting to order at 8:02 a.m. at the Marina.
To provide continuity for research, items are in agenda order although not
necessarily discussed in that order.
2 – Minutes Approval – November 14, 2007
Member Smith requested that sentence one of paragraph two of Item 3 read “… docks
violate 10 of 12 CDB …”
Member Trager moved to approve the minutes of the Marine Advisory Board meeting of
motioncarried
November 14, 2007, as amended. The was duly seconded and unanimously.
3 – Old Business
Dock application for Channel Club at 685, 689, 693, and 699 Bay Esplanade
The Chair outlined the format for discussion and public input.
Sherry Bagley, Woods Consulting, said the Planning Department has the entire
application regarding this project. She reported this application was first presented to the MAB
(Marine Advisory Board) in March 2007. She said the MAB previously had recommended
approval of the application with 2 conditions: 1) Public access (boardwalk) to the water from the
right-of-way not be restricted, and 2) Nearby parking not be compromised. She said after
discussions with City and County staff, SWFWMD (Southwest Florida Water Management
District), the Army Corps of Engineers, the neighborhood, and the MAB, a new design is being
proposed. The applicant proposes to construct a 3,182 square-foot docking facility with 14
instead of 16 slips. Two docks originally proposed in 2005 were removed from the plan to avoid
impacting the sea grasses found in 2007. The only deviation being sought is a length deviation
of 17.25 feet for the southern dock. She referred to drawings and aerial views of the project
indicating the dimensions of the proposed docking facility, revisions made to the original
Marine Advisory 2007-12-12 1
proposal, other condominium and commercial docks along Mandalay Channel, multi-use and
multi-family docks within a half mile of this project, the Mandalay channel speed zone, the
water-skiing safety corridor, and the turning radius of a typical water-skier in the corridor.
Discussion ensued. In response to questions, Ms. Bagley said the applicant did not
meet with property owners prior to the project’s original design. She said the turning radius in
the channel for water-skiers complies with Coast Guard regulations. It was remarked that the
depiction of the water-skiing safety corridor indicates that boats would navigate the center of the
channel when they tend not to. Ms. Bagley offered to change the drawing to depict water-skiers
on either side of the channel. Concern was expressed about water depths, cradle lifts, boat
drafts, and seagrasses. In response to a concern regarding the ability of boats 40 feet and
larger to navigate in and out of the slips closest to the seawall and the seagrasses, she said
different vessels create different size drafts and require different water depths. A licensed
Florida surveyor provided elevation references. She said in addition to the 1929 elevation
reference used by surveyors, surveys were done using barnacle lines. She said the applicant is
willing to install low profile lifts and convert the information provided using 1988 elevation
references. In response to a concern regarding slip #4 on the northern dock, Ms. Bagley said
there are various methods of tying up boats. She reviewed water depths at mean low water for
slip #1 on the northern dock. It was requested that a more accurate, recent depth survey be
used. In response to a request, Ms. Bagley said she would ask the applicant if slip #1 on the
northern dock could be eliminated to address the MAB’s concerns regarding seagrasses. She
said the project’s docks would be perpendicular to the seawall. A concern was expressed
regarding the surveyor’s accuracy and the rights to the bottomlands. It was remarked that 10 of
12 of the CDB requirements related to impacts do not conform to Old Florida District standards.
Discussion ensued. One board member stated that he had abstained from voting on this
application at a previous MAB meeting, but would not have done so had he known that another
board member who owns commercial property along the seawall in this area has a conflict of
interest but did vote on the application. If was felt that there is no compelling need for the
southern dock to extend 17.25 feet, as it is not for public use, requires a variance, and is for
exclusive use of the upland condominium owners. Concern was expressed regarding
placement of the boat lifts on the southern docks, sight lines, and riparian rights of adjacent
property owners to enjoy unobstructed views. A request was made that staff research Code
regarding if boat lifts are considered structures and if they may be considered obstructions to
view corridors and view triangles.
In response to a question, Ms. Bagley reviewed her credentials and work history.
Planning Director Michael Delk said this application is scheduled for presentation to the
CDB (Community Development Board) on December 18, 2007. It was questioned if Planning
Department staff accepts information from various City departments without question. One
member expressed concern that a City e-mail he obtained indicates that staff feels that the MAB
has no role in what the City does. Mr. Delk said when a dock application is received, staff
obtains information from various departments, reviews all pertinent information provided, and
prepares a recommendation analysis, which is presented at a public hearing at CDB meetings.
The CDB has the authority under the Community Development Code to make a finding based
on testimony and evidence presented at hearings. The CDB’s findings are presented as a
Development Order to Pinellas County, which is the permitting authority. Mr. Delk said the
Marine Department routes marine-related applications to the MAB as a matter of choice. He
Marine Advisory 2007-12-12 2
said the City has no view protection ordinance with respect to boat lengths and boat lifts.
Concern was expressed that large boats on lifts and extended sight lines interfere with riparian
rights and unobstructed views. It was suggested the City define “sight lines” and “unobstructed
views”.
Assistant City Attorney Camilo Soto said he had been asked to provide the board with
information regarding potential voting conflicts. He distributed memorandums dated December
11, 2007 addressed to board members Mark Smith and Paul Kelley regarding their potential
voting conflicts. He said although Chair Kelley owns property in close proximity to the proposed
project, the City Attorney’s office has determined that any potential benefit he could gain is too
remote and speculative and therefore finds no voting conflict under Florida Statutes. However,
Member Smith has publicly stated he personally believes the proposed commercial docks will
significantly diminish the value of his property and therefore has a conflict of interest. Mr. Soto
stated that Member Smith has the ability to speak as a private citizen at CDB meetings and to
staff and City Council regarding any concerns he may have regarding this application.
However, he cannot use his position as a MAB member to lobby his personal cause and act as
a conduit to address any perceived special interest, gain, or loss. The City Attorney’s office
advises that when the proposed dock project at 685, 689, 693, and 699 Bay Esplanade comes
before the MAB, that Mr. Smith declare his conflict, refrain from participating in any discussion
dealing with the project, and abstain from voting.
Member Smith expressed concern that Planning staff has stated that this project does
not adversely affect neighbors. He stated he would abstain from voting if Chair Kelley does, as
he feels Chair Kelley stands to benefit from the project and he stands to lose because of it. He
said he represents the public and plans to vote regarding the project. He said the City could
dismiss both members’ votes (his and Member Kelley’s) if they so choose.
In response to a question, Mr. Soto said if the applicant does not like the MAB’s opinion,
he has the right to appeal it. He said a citizen could initiate an ethics violation against a board
member. Board members who assert their right to vote after being advised they have a voting
conflict of interest also expose themselves to various penalties under Florida Statutes. Board
members must file a memorandum of conflict with the City Clerk’s office within 15 days after the
vote occurs.
Mr. Delk said the Planning Department does not determine the status of projects.
Projects are reviewed and processed according to the criteria in the Community Development
Code.
Four people spoke in opposition to the dock application.
Ms. Bagley said professional surveyors use various methods to depict riparian lines.
Senior Planner Scott Kurleman said the criteria in the Code for multi-family and residential
docks differs.
The meeting recessed from 9:26 to 9:31 a.m.
Discussion ensued with comments that as designed, the project will impede navigation
down to the Recreation Center and sets a precedent, a variance to extend the southern dock
and the lift structure for the most southern boat of the southern dock would result in a view
Marine Advisory 2007-12-12 3
obstruction, the project needs to be redesigned, that a variance should not be granted to a
commercial property adjacent to a residential property, that the project could partially obstruct
the public right-of-way on Somerset Road, and that the MAB would like City Council to consider
a moratorium on dock permits until a comprehensive dock ordinance is in place. It was
remarked that the MAB has on many occasions suggested that the City needs a dock
ordinance. Concern was expressed that the City is receiving requests for docks that will
accommodate boats up to 100 feet. A concern was expressed that staff does not have the tools
to determine what is appropriate, as the Code does not include a dock ordinance. It was
remarked that licensed surveyors are professionals in their fields and their opinions should be
respected.
It was remarked that this project is receiving undue scrutiny and the MAB is applying
higher standards to this project than was applied to other projects that have been approved by
the MAB and the City, including the Downtown boat slips and the boat slips at the Sand Pearl.
It was remarked that boat lifts of any size could obstruct someone’s view and that any good
development tries to balance citizens’ concerns with progress. A remark was made that the
permitting process is extremely intensive and comprehensive and involves City, State, local and
Federal agencies and that the entire community must adhere to any criteria that are put in place
regarding view corridors, boat lifts, sight lines, etc.
Apologies were extended to Planning staff for any comments inferring that their integrity
was being questioned. Mr. Delk explained staff’s role in the review process.
Member McFarland moved to approve the dock application with the recommendation
motion
that no variances be granted. The was duly seconded.
Upon vote being taken, Members Hemerick, McFarland, and Chair Kelley voted “Aye”;
failed.
Members O’Brien, Trager, and Calhoun voted “Nay.” Member Smith abstained. Motion
Member Calhoun stated he voted against the motion, as he felt additional modification to
the motion was needed. He suggested boat slip #1 on the northern dock should be removed,
and the cradle on the south dock that obstructs the view should be removed.
It was remarked that the previous motion was the result of what the MAB views is an
inability to legislate, and that the Council seriously needs to address a new dock ordinance,
taking into account commercial properties, high intensity residential properties, and single-family
residential properties.
Member Smith moved to recommend to City Council that there be a comprehensive
motion
dock ordinance. The was duly seconded.
It was remarked that County codes are extremely comprehensive and most
municipalities in the County abide by them. The City is not the issuing authority for permits.
The County issues permits and the City’s review process is a check and balance to ensure
projects are in harmony with the community.
It was remarked that the MAB would like to see the City be the permitting entity for
projects within the City limits instead of the County.
Marine Advisory 2007-12-12 4
Upon the vote being taken, Members O'Brien, Hemerick, Smith, Trager, Calhoun, and
McFarland voted "Aye"; Chair Kelley voted "Nay". Motion carried.
Member Calhoun moved to recommend accepting the modified plan, as submitted by
the applicant, removing boat slip #1 as identified in the exhibit on the northern dock, and to
modify the cradle lift on slip #8 on the southern dock, with no variances permitted. The motion
was duly seconded.
Discussion ensued. It was remarked that if the applicant decides to redesign the project,
it would go before the CDB (Community Development Board) for review.
Upon the vote being taken, Members O'Brien, Hemerick, Trager, Calhoun, McFarland,
and Chair Kelley voted "Aye." Member Smith abstained. Motion carried.
Member Smith stated he has no voting conflict, but abstained from voting, as he
disagrees with the city attorneys and who they represent, and feels things were not done in a
proper manner.
4 - New Business
It was remarked that the modification of the no wake zone seems to be working well.
However, it was suggested another buoy is needed along the southern border of the channel,
as that area is confusing for boaters. Disagreement regarding the additional buoy was
expressed.
New parking passes were distributed to board members.
Member Smith apologized to everyone for having to endure the lengthy conversations
regarding the dock application.
Mr. Soto advised Member Smith to refer to the voting conflict information provided him,
particularly the penalties for violation on pages 6 and 7 of the memorandum addressed to him
dated December 1, 2007.
5 - Aqenda for next meetinq on January 9. 2008
6 - Adiournment
The meeting adjourned at 9:58 a.m.
c&
Chair, Marine Advisory Board
Attest: ~
~/~
oard Reporter
Marine Advisory 2007-12-12
5
FORM 88 MEMORANDUM OF VOTING CONFLICT FOR
COUNTY, MUNICIPAL, AND OTHER lOCAL PUBLIC OFFICERS
A.
t
LAS~ME-lFIRST NAME-MIDDLE NAME
Jrt'\~ f\
MAILING ADDIl'tESS
01
C1l2luJ+r
DATE ON WHICH VOTE OCCURRED
CO~ I\Q..l
a OTHER LOCAL AGENCY
MY POSITION IS:
o ELECTIVE
WHO MUST FILE FORM 88 OFFICIAL RECORDS AND
LEGISLATIVE SRYCS DEPT
This form is for use by any person serving at the countY, city, or other local level of government dn a~a'ppointed or elected board, council,
commission. authority, or committee. It applies equally to members of advisory and non-advisory bodies who are presented with a voting
conflict of interest under Section 112.3143, Florida Statutes.
Your respot'lsibilities under the law when faced with voting on a measure in which you have a conflict of interest will vary greatly depending
on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form before
completing the reverse side and filing the form.
INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES
A person helding elective or appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which
inures to his or her special private gain or loss. Each elected or appointed local officer also is prohibited from knowingly voting on a mea-
sure which inures to the special gain or loss of a principal (other than a government agency) by whom he or she is retained (including the
Jarent organization or subsidi~ry of a corporate principa,1 by which he or she is retained); to the special private gain or loss of a relative; or
:0 the special private gain or loss of a business associate. Commissioners of'community redevelopment agencies under Sec. 163.356 or
163.357, F.S., ~nd officers, of i,",dependentsp~cial tax districts electedQn a one-acre, one-vote basis are not prohibited from voting in that
:;apacity. . .' -\" \' i ..' , " _ 'I' .~'
or purposes of this law, a "relative" includes only the officer's father, mother. son.,dal,lghter. husband, wife, brother, sister, father-in-law,
nother-in-Iaw, son-in-law, and daughter-in-law. A "business associate" means any person or eritityengaged in or carrying on a business
mterprise with the officer E;ls a partner, joint ventwer, coowner,o( property, ~ corporate shareholder (where the shares of the corporation
,re not listed on any national or regional s'tock exchange).. ., . ; i , .
*
- L-ECTEO OFFICERS:
n addition to abstaining from voting in the situations described above, you must disclose the conflict:
PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on which you
are abstaining from voting; and
WITHIN 15 DAYS AFTER THE VOTE OCCURSby completing and filing this form with the person responsible for recording the min-
utes of the meeting, who should incorporate the Jormin the minutes.
*
*
*
*
*
*
~PPOINTED OFFICERS:
.Ithough you must abstain from voting in the situations described above. you otherwise may participate in these matters. However, you
lust disclose the nature of the conflict before making any attempt to influence the decision, whether orally or in writing and whether made
y you or at your direction.
YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH THE VOTE WILL BE
AKEN:
You must complete and file this form (before making any attempt to influence the decision) with the person responsible for recording the
minutes of the meeting, who will incorporate the form in the minutes. (Continued on other side)
E FORM 88 - EFF. 1/2000
PAGE 1
APPOINTED OFFICERS (continued)
. A copy of the form must be provided immediately to the other members of the agency;
. The form must be read publicly at the. next meeting after the'form is filed.
IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING:
. You must disclose orally the nature of your conflict in the measure before participating.
. You must complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minutes of the
meeting, who must incorporate the form in the minutes. A copy of the form must be provided immediately to the other members of the
agency, and the form must be read publicly at the next meeting after the form is filed.
DISCLOSURE OF LOCAL OFFICER'S INTEREST
.1, --1"Y\ 0\.( K &.. Sl"r\~ t-.~ --, hereby disclose that on ~ c.. ( 2
,20~:
(a) A measure came or will come before my agency which (check one)
I.. uil1ured tomyspeciaJ j5rr\iaTe~garn or loss;
I
inured to the special gain or loss of my business associate,
inured to the special gain or loss of my relative,
inured to the special gain or loss of
whom I am retained; or
inured to the special gain or loss of
is the parent organization or subsidiary of a principal which has retained me.
(b) The measure before my agency and the nature of my conflicting interest in the measure is as follows:
. by
,which
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Date Filed"
NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES 911 . 17, A FAILURE TO MAKE ANY REQUIRED DISCLOSURE
CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT,
REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A
CIVIL PENALTY NOT TO EXCEED $10,000.
CE FORM 88 - EFF. 112000
PAGE 2
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City Attorney's Office
Interoffice Correspondence Sheet
TO: Paul Kelley
Marine Advisory Board Member
FROM: Camilo A. Soto
Assistant City Attorney
SUBJECT: Formal Legal Opinions - Marina
Our File Number: OP06-9601-082
DATE: December 11, 2007
This memo shall serve as a response to your inquiry into whether there exists a
conflict of interest that would preclude you from discussing and voting on a particular
matter. As I understand the circumstances, a conglomerate of developing companies is
requesting that your Marine Advisory Soard (MAS) make a recommendation to build
planner slips at the commercially zoned property at 693 Esplanade. Mr. Kelley, you own a
similarly zoned commercial property several parcels away from the 693 Esplanade property.
Your ownership of a similarly situation property does not raise a concern for a conflict of
interest, as such, there does not exist any special interest that would require your
abstention from this matter, and the following is a discussion as to why.
Section 112.3143, governing voting conflicts states that no local public officer can
vote in an official capacity upon any measure which inures to the officer's "special private
gain or loss" or to the special private gain or loss of any private entity by whom retained,
relative or business associate. What does a "special private gain or loss" mean?
The existence of "special private gain" is fact dependant. This exists if an officer has
an ownership interest that is affected; has a relative with an ownership interest; or has a
continuing or ongoing business relationship with someone whose interest is affected. An
officer that has a "special private" gain or loss must do the following:
1. Prior to the vote, publicly explain their respective conflicts (get it on the record).
2. Abstain from voting
3. Within fifteen (15) days of the vote, they need to document the disclosure in a
written memorandum filed with our City Clerk.
~ :",.'
..
Since the determination of a "special private gain" is fact specific, the following is a
recitation of the facts, as I understand them. With regard to your property, Mr. Kelley, you
have pending plans that could involve asking for a similar variance recommendation
sometime in the future. Moreover, you do not currently have any pending dock variance
applications. You have indicated that neither yourself nor your family has any special
interest in the development companies currently asking for the MAB's recommendation. The
only other fact that could implicate you in a potential "special private gain" situation with
regard to the current MAB vote on the 693 Esplanade is the fact that you own a parcel of
similarly situated property a few parcels down from 693 Esplanade. In that regard, your
ownership interest in a separate and distinct parcel, which would have to go through its own
separate petition process, would not preclude you from voting and discussing the 693
Esplanade recommendation. Any potential gain that you could receive is far too remote and
speculative. After checking with Virlindia Doss, Director of the Florida Commission on
Ethics, and researching Commission on Ethics opinions (CEO's), which will be summarized
in the following paragraphs, your factual circumstances do not lead our office to find a
"special private gain" situation that would give rise to the presumption of a voting conflict.
In CEO 85-77, a school board member that owned a retail clothing business near the
site of a proposed school district administrative complex was not prohibited by Section
112.3143, Florida Statutes, from voting on matters relating to the use of the school district's
property. Given the particular nature of the board member's business any gain or loss
resulting from measures relating to the use of the school district's property were too
speculative and remote to constitute "special gain" requiring the board member to abstain
from voting.
The main question that the CEO 85-77 grappled with was determining whether the
measures under consideration would inure to the special gain of the Board member's retail
clothing business. Historically, the CEO has advised that the requirements of Section
112.3143 do not turn on the nature of the official's vote--whether it is for or against the
measure--but rather on whether the interest which he holds is such that he or his principal
would stand to gain or lose as a direct outcome of the decision. Ultimately, the CEO opined
that "any gain or loss resulting to the member's business would be too speculative and
remote to allow us to conclude that any of the measures under consideration would inure to
the "special gain" of the clothing business. Presumably all retail businesses in the area
would benefit somewhat by the location of a large office building in the area. However, it
would be purely a matter of speculation and conjecture on our part to attempt to conclude
that the Board member's business would derive any special gain from proceeding with the
School Board's original plan, from shifting the location of the administrative complex slightly,
or from declaring the property surplus and leaving it undeveloped for the near future."
Similarly, in CEO 85-87, the Commission determined that Section 112.3143, Florida
Statutes, did not prohibit a city council member who was a vice president of a bank from
voting on the sale and redevelopment of property located one block from the main office of
the bank. The redevelopment substantially increased the value of the property to be
redeveloped. The Commission also found it fair to assume that an increase in the value of
the property to be redeveloped would affect the value of surrounding properties; however, it
was unknown to what extent, if any, the value of the property owned by the bank would be
increased. Under the circumstances presented, any gain or loss resulting to the bank from
the redevelopment project would be too speculative and remote to conclude that the bank
..
would receive any "special" gain as a result of the redevelopment project.
The Commission reasoned, "[W]e are of the opinion that any gain or loss resulting to
the bank from the redevelopment project would be too speculative and remote to conclude
that the bank would receive any "special" gain as a result of the redevelopment project. In
our view, your observation about the inability to determine the effect of the redevelopment
project on the value of the land owned by the bank is supported by the fact that the bank's
property has been developed and is being used as the main office and banking facility of
the bank. In addition, for the reasons expressed in CEO 85-77, we conclude that the bank
would not derive any 'special' gain in terms of the effect of the redevelopment project on the
bank's business."
Finally, in CEO 86-44, a city council member was not prohibited from voting
on a site plan for a shopping center to be located adjacent to the florist store that he owned
and operated. The shopping center developers proposed to reroute the access road on the
street that ran in front of the florist store and to add an entrance to the mall next to the store.
City Council was required to vote on the site plan for the shopping center, and the plan
approval included such matters as parking, ingress, egress, landscaping, and the general
aesthetics of the site. It was debatable whether this commercial development would hurt or
help the council member's florist business.
Along the same line of reasoning applied with the school board member (CEO 85-
77) and the council member (CEO 85-87), the Commission determined that "[t]he proposed
plan would leave the status quo insofar as [council member's] property is concerned. In
addition, under the circumstances you have presented we conclude that any impact the
proposed mall would have on [the council member's] florist business in the future is too
remote and speculative to constitute 'special gain.' Accordingly, we find that you are not
prohibited by Section 112.3143, Florida Statutes, from voting on the site plan of the
proposed shopping center."
Dock applications are taken on a case by case basis, and any benefit that you could
potentially gain is too remote and speculative, like the situations presented by the retail
store owner turned school board member, bank vice president turned council member, and
florist business owner turned city council member. For these reasons, the Clearwater City
Attorney's Office finds no voting conflict under Florida Statutes ~ 112.3143, Mr. Kelley. If
you have any questions, please feel free to ask.
CASI
cc: William D. Morris, Marine and Aviation Director
Marine Advisory Board Members
'1n~
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~ Clearwater
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City Attorney's Office
Interoffice Correspondence Sheet
TO: Mark Smith
Marine Advisory Board Member
FROM: Camilo A. Soto
Assistant City Attorney
SUBJECT: Formal Legal Opinions - Marina
Our File Number: OP06-9601-082
DATE: December 11, 2007
This memo shall serve as a response to your inquiry into whether there exists a
conflict of interest that would preclude you from discussing and voting on a particular
matter. As I understand the circumstances, a conglomerate of developing companies is
requesting that your Marine Advisory Board (MAB) make a recommendation to build
planner slips at the commercially zoned property at 693 Esplanade. Your property,
which is zoned residential, is directly adjacent to 693 Esplanade. You are opposed to
this project because you believe that the creation of the commercial docks will
significantly diminish the value of your own property. Moreover, you have been very
vocal about your opposition to this project, so much so, that you have publicly lobbied
individual city council members and have stated your opposition openly during MAB
meetings. When the proposed dock project comes before the board, the Clearwater City
Attorney's Office recommends that, as a member of the MAB, you should refrain from
participating in any discussion dealing with this project and abstain from voting on the
project subsequent to the discussion because you have openly stated that you perceive
that this project will subject you to a special private loss. Moreover, this memo will
discuss what the consequences are should a board member be found to be in violation
of any public disclosure requirements.
Sec. 112.312(1), Florida Statutes, defines "advisory board:"
Definitions.
(1) "Advisory body" means any board, commission, committee, council,
or authority, however selected, whose total budget, appropriations, or
authorized expenditures constitute less than 1 percent of the budget of
each agency it serves or $100,00, whichever is less, and whose powers,
jurisdiction, and authority are solely advisory and do not include the final
determination or adjudication of any personal or property rights, duties, or
obligations, other than those relating to its internal operations.
The Commission, in CEO 00-2, opined that, while members of advisory councils
are not considered "public officers" subject to the financial disclosure laws promulgated
by sec. 112.3145(2)(b), Florida Statutes, they are, however, considered "public officers"
subject to the voting conflict laws under sections 112.313 and 112.3143, Florida
Statutes.
"School advisory councils are advisory bodies, and, as such, are not
subject to the financial disclosure requirements of Section 112.3145,
Florida Statutes. The budget for the middle school advisory council does
not exceed one percent of the middle school's total budget or $100,000,
and the council's authority does not include the final determination or
adjudication of any personal or property right. However, as even
members of advisory bodies are considered to be public officers under
Sections 112.313(1) and 112.3143(1)(a), Florida Statutes, council
members are subject to other provisions of the Code of Ethics."
"Nevertheless, we also are of the opinion that the standards of conduct
provisions of Section 112.313, Florida Statutes, and the prohibitions of
Sections 112.3143(3)(a) and (4), Florida Statutes, are applicable to the
members of the SAC. In CEO 99-2, we noted that advisory board
members are considered to be public officers as that term is defined at
Sections 112.313(1) and 112.3143(1)(a), Florida Statutes. Consequently,
SAC members, like the members of a city's charter school advisory board
in CEO 99-2, are subject to the standards of conduct and voting conflict
provisions contained in the Code of Ethics for Public Officers and
Employees.
Accordingly, we find that school advisory councils are advisory bodies for
purposes of Section 112.3145, Florida Statutes, and are not subject to
filing financial disclosure but are subject to the other provisions of the
Code of Ethics that are applicable to public officers."
Sections 112.3143(3)(a), Florida Statutes, states as follows:
(3)(a) 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(4), Florida Statutes, states as follows:
4) No appointed public officer shall participate in any matter which would
inure to the officer's special private gain or loss; which the officer 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; 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, without first disclosing the nature of his or her interest
in the matter.
(a) Such disclosure, indicating the nature of the conflict, shall be made in a
written memorandum filed with the person responsible for recording the
minutes of the meeting, prior to the meeting in which consideration of the
matter will take place, and shall be incorporated into the minutes. Any
such memorandum shall become a public record upon filing, shall
immediately be provided to the other members of the agency, and shall be
read publicly at the next meeting held subsequent to the filing of this
written memorandum.
(b) In the event that disclosure has not been made prior to the meeting or
that any conflict is unknown prior to the meeting, the disclosure shall be
made orally at the meeting when it becomes known that a conflict exists. A
written memorandum disclosing the nature of the conflict shall then be
filed within 15 days after the oral disclosure with the person responsible
for recording the minutes of the meeting and shall be incorporated into the
minutes of the meeting at which the oral disclosure was made. Any such
memorandum shall become a public record upon filing, shall immediately
be provided to the other members of the agency, and shall be read
publicly at the next meeting held subsequent to the filing of this written
memorandum.
(c) For purposes of this subsection, the term "participate" means any
attempt to influence the decision by oral or written communication,
whether made by the officer or at the officer's direction.
[Continued on the next page]
Section 112.312(8), Florida Statutes, defines "conflict" or "conflict of interest"
(8) "Conflict" or "conflict of interest" means a situation in which regard
for a private interest tends to lead to disregard of a public duty or interest.
Sec. 2.302 of the City of Clearwater Code states as follows:
Sec. 2.302. Definitions.
City officers means any person elected or appointed to any public office or
public body of the city, whether paid or unpaid and whether part-time or
full-time.
Sec. 2.303 of the City of Clearwater's Code states as follows:
Sec. 2.303. Disclosure of Interest.
In any manner pending before a city employee or city officer of the
governmental body with which the officer or employee is associated,
where such officer or employee or a member of his immediate family or a
business partner of such officer or employee has a financial interest, direct
or indirect, personal or business, but distinct from the interest of the
general public, the city officer or city employee shall, prior to any
deliberation on the matter, publicly disclose the nature of extent of such
interest in the official records of the governmental body before which the
matter is pending.
In CEO 77-119, the Commission considered the position of a member of the
governing board of a water management district who was opposed to a proposal that
would adversely affect water levels on his own property.
The Commission found that, while the member could privately file written
objections to the proposal, he is nevertheless faced with a voting conflict when the issue
comes before his board that would require him to file a Memorandum of Voting Conflict,
or completely abstain from voting on the measure.
"No provision of the Code of Ethics for Public Officers and Employees
prohibits one who is a member of the governing board of a water
management district from privately filing written objections to a proposed
consumptive use permit for the withdrawal of water from a well field
located near his property where such withdrawal has the potential of
adversely affecting the water level on surrounding property, including his
own. At the time the governing board considers the application, however,
the subject board member is faced with a voting conflict pursuant to s.
112.3143, F. S. 1975, inasmuch as the matter is of private interest to him
and potentially would inure to his special private gain. Should he exercise
his right to vote under that section, he is required to file a Memorandum of
Voting Conflict within 15 days. Alternatively, he may choose to abstain
from voting under the terms of s. 286.012."
The Commission clarified:
"However, inasmuch as the matter being considered potentially will inure
to Mr. Bexley's private gain, Le., if the permit is denied, a voting conflict
would be created under the above-quoted s. 112.3143. Should he choose
to participate in discussion or vote on the matter, he therefore would be
required to disclose such conflict via the filing of a Memorandum of Voting
Conflict, CE Form 4, with the person recording the minutes of the meeting
at which the vote occurred. Alternatively, he may recuse himself from
participation and voting pursuant to s. 286.012, F. S., which provides as
follows:
'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 ofs. 112.311, s.112.313, ors. 112.3143. In such
cases said member shall comply with the disclosure
requirements of s. 112.3143.'
Reading this statute in conjunction with s. 112.3143, quoted above, no
public officer may abstain from voting unless he has or appears to have a conflict
of interest pursuant to the enumerated provisions of the Code of Ethics. Where
the public officer perceives a conflict, he looks to s. 112.3143, which offers two
alternatives: He may exercise his right to vote in spite of the conflict, whereupon
he is required to file a Memorandum of Voting Conflict (CE Form 4), or he may
abstain from voting on the matter."
In CEO 87-88, the Commission found that a board of adjustment member is
prohibited from voting on a petition of a church to establish a school on church property
located adjacent to the board member's residential property. The Commission opined
that it appeared that the board member would stand to gain or lose as a result of the
decision on the petition. In this particular matter, notices were sent to property owners
within 300 feet of the church's property, and the board member was one of 82 neighbors
who were notified.
The Commission cited 112.3143(3), F.S., and stated:
"Under this provIsion, a local official is prohibited from voting on a
measure which inures to his special private gain or to the special gain of a
principal by whom he is retained. Regardless of whether the official feels
that he can be impartial, the law requires the official to abstain from voting
in these types of matters. The decision of whether to abstain is for the
Board member to make, but failing to abstain when required to do so by
the law may result in the imposition of the penalties provided in Section
112.317(1), Florida Statutes, which range from public censure and
reprimand to removal from office and may include a civil penalty of up to
$5,000.
Even if an official is not required to abstain by Section 112.3143(3),
Florida Statutes, he still may have the discretion to choose to abstain
where there is or appears to be a conflict of interest under one of the
provisions of the Code of Ethics. Abstention in these circumstances is
permitted by Section 286.012, Florida Statutes, which is discussed in
opinion CEO 86-57.
In previous opinions, we have advised that a voting conflict of interest is
created where the public official or the principal by whom he is retained
would stand to gain or lose as a result of the outcome of the decision. See
CEO 84-116 and CEO 76-24. You have argued that because one side
believed that the church's petition would result in benefiting the
neighborhood, and the other side argued a loss to the neighborhood, the
net effect would be that each cancels out the other, and you would not
stand to gain or lose. However, in our view, regardless of which side was
correct, it appears that there would be an effect on your property, which is
located adjacent to the church. In contrast, see CEO 79-66, where we
advised that no voting conflict of interest was created where a board of
adjustment member voted on a matter affecting property located
approximately one-half mile from the board member's residence.
The Commission further reasoned, "[a]ccordingly, we find that you were correct
in abstaining from voting as a member of the Board of Adjustment on the petition of the
church to establish a school on property located adjacent to your property."
Based on the rationale espoused by the Commission's opinions above, you
should abstain from voting on this particular matter. If you do not abstain, Florida
Statutes provide for various penalties with regard to voting conflicts.
Section 112.317, Florida Statutes, provides for penalties for violation of the
voting conflict requirements.
112.317 Penalties.-
(1) Violation of any provision of this part, including, but not limited to,
any failure to file any disclosures required by this part or violation of any
standard of conduct imposed by this part, or violation of any provision of s.
8, Art. II of the State Constitution, in addition to any criminal penalty or
other civil penalty involved, shall, under applicable constitutional and
statutory procedures, constitute grounds for, and may be punished by, one
or more of the following:
(a) In the case of a public officer:
1. Impeachment.
2. Removal from office.
3. Suspension from office.
4. Public censure and reprimand.
5. Forfeiture of no more than one-third salary per month for no more
than 12 months.
6. A civil penalty not to exceed $10,000.
7. Restitution of any pecuniary benefits received because of the
violation committed. The commission may recommend that the
restitution penalty be paid to the agency of which the public officer
was a member or to the General Revenue Fund.
(3) The penalties prescribed in this part shall not be construed to limit
or to conflict with:
(a) The power of either house of the Legislature to discipline its
own members or impeach a public officer.
(b) The power of agencies to discipline officers or employees.
The Clearwater Code also provides for penalty for violation of voting conflict
requirements:
Sec. 2.306. Penalty for violation. . ... ............
The penalty for violation of the code of ~thl~~ shall be as provided by
general law. The city council may, by resolution, provide for procedures by
which a covered public official or employee may be removed from office
for violation of the above-mentioned code of ethics.
It is within your right as an individual citizen to lobby against any project you feel
adversely affects you; however, as a member of an advisory board, you cannot utilize
the MAB as a conduit to lobby for your own special and unique interests. Based on your
adamant and public objection to this project, it is clear that you have a voting conflict
with this particular matter. Pursuant to sections 112.3143(3(a) and 112.3143(4), Florida
Statutes, sections 2.302 and 2.303 of the Clearwater Code, as well as the above-
referenced opinions issued by the Florida Commission on Ethics, the advisory board
member must abstain from the participation and vote on the proposed dock project and
disclose his interest pursuant to the requirements of the above-referenced Florida
Statutes and sections of the Clearwater Code. It is imperative that we follow the
aforementioned guidelines so that we can ensure a process that is objective and
equitable to all involved.
CAS!
cc: William D. Morris, Marine and Aviation Director
Marine Advisory Board Members