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Agenda Item 10AApr 12 12 02:43p Alan Jensen Mailing Address: Post Office Box 50457 Jacksonville Beach, FL 32240 -0457 904 -246 -9960 AGENDA ITEM# IOA APRIL 23, 2012 ALAN C. JENSEN Attorney at Law 935 North Third Street Jacksonville Beach, Florida 32250 Telephone: (904) 246 -2500 Facsimile: (904) 246 -9960 (call ftrso E -Mail: Alan @AJensenLaw.com MEMORANDUM TO: Mayor and City Commissioners City of Atlantic Beach t FROM: Alan C. Jensen, Esq., City Attorney RE: Public Safety Building Review Committ "Conflict of Interest" DATE: April 12, 2012 I have reviewed a letter dated 4/8/12 from Don Ford, a member of the above - referenced committee, accusing two other members of that committee of having a conflict of interest, as follows: 1. Mr. Ford claims that Mitchell Reeves clearly has a conflict of interest because he sells police equipment to the Police Department. We all heard Mr. Reeves' explanation of his business with the City at the Commission meeting this past Monday, April 9, 2012. 2. Mr. Ford also accuses Julliette Hagist of having a conflict of interest, stating that she "...clearly has a predetermined agenda to support the hand that feeds her... ", because Sunnyland Cleaners, where I understand that Ms. Hagist is employed, gets the contract every year to clean the Police Department uniforms. Mr. Ford continues in his letter that the Commission should ask these two members to recuse themselves as they clearly have a conflict of interest. The state Code of Ethics is in part for public officers, and a "public officer" is defined as any person elected or appointed to hold office in any agency, including any persons serving on an advisory body. Florida Statute §112.313(1). Mr. Reeves and Ms. Hagist are public officers subject to the state Code of Ethics for public officers. The state Code of Ethics also defines "conflict" or "conflict of interest" to mean a situation in which regard for a private interest tends to lead to disregard of a public duty or interest. Florida Apr 12 12 02:43p Alan Jensen 904 -246 -9960 AGENDA ITEM# l0A APRIL 23, 2012 Mayor and City Commissioners April 12, 2012 Page 2 Statute § 112.312(8). Also, part of the express intent for the state Code of Ethics is that public office not be used for private gain. Florida Statute §112.311(1). There are numerous citations and examples regarding conflict of interest provided in the annotations to the various statutes cited above. Some examples are as follows: 1. "A city councilman is not required to abstain from voting upon a request for a zoning change made by one of his regular business customers, unless the granting of such request would necessarily result in a substantial benefit to the city councilman's business. An increase of 10 percent in the annual gross income of such business is sufficiently substantial to require abstention from voting." This is relevant to the voting requirements set forth in Florida Statute §286.012 and conflict of interest under §112.311. This quote is from F1a.AG0 073 -236. 2. Another Attorney General Opinion states as follows: "A person may serve as a county commissioner even though he owns more than 10 percent of the stock of an engineering firm; however, he should abstain from voting on matters relating to engineering services furnished to clients by the engineering firm, under §286.012. Other conflicting personal interests that might disqualify a member of a public body from voting on a particular matter should be determined in accordance with the particular circumstances." F1a.AGO 073 -215. 3. "The managing director of a port authority may purchase supplies and equipment from a company whose local branch office is managed by a member of the port authority without violating §112.313.... Nor would such statutes be violated by a sale of land by the authority to another corporation which has in the past and may in the future transact substantial business with the branch office managed by the authority member. If the consummation of the transaction with the corporation is done in the expectation that the probable consequence thereof would be a substantial increase in the business of the corporation with the local branch office managed by the authority member, such member could validly abstain from voting upon the transaction under §286.012, and should abstain as a matter of public policy. However, if the possibility of increased business with or purchases from the branch office is merely remote and speculative, the authority member should not abstain from voting upon the transaction." FIa.AGO 073 -121. 4. Under §286.012 (referencing §112.3134) governing abstention from voting, "special private gain" described by that statute almost always, if not always, refers to financial interest of public official that is directly enhanced by the vote in question. George vs. City of Cocoa, Fla. C.A. 11 (Fla.) 1996, 78 F.3d 494. Unfortunately, are no bright lines in the state Code of Ethics which give definitive answers to questions regarding conflicts of interest. As set forth in paragraph 2 above, each case will have to be determined in accordance with the particular circumstances of that case. It would appear that in order to have a conflict of interest, there must be a "special private gain" which is in essence a special financial benefit to a member of the committee. Based upon the knowledge and understanding of the facts and circumstances I have at this time, it does not Apr 12 12 02:43p Alan Jensen Mayor and City Commissioners April 12, 2012 Page 3 904 - 246 -9960 AGENDA ITEM# IOA APRIL 23, 2012 appear to me that the conflicts of interest suggested by Mr. Ford exist under the provisions of Chapter 112, Florida Statutes. This opinion is shared by Carla Miller, an attorney who is ethics officer for the City of Jacksonville, and who I spoke with regarding this situation and the claims of Mr. Ford. I am comfortable with stating that there is no conflict of interest for Ms. Hagist based upon her employment at Sunnyland Cleaners and the fact that her employer has an existing contract to clean the Police Department uniforms. The contract with Sunnyland Cleaners may not have met the required amount to be put out for formal bid, but I understand that various quotes were obtained before the contract was awarded. In any event, it does not appear that Ms. Hagist will receive any special financial benefit as a result of her participation as a committee member and her vote in whatever recommendation is made by the committee to the City Commission. Less clear is the situation of Mr. Reeves and his employment with a company that sells equipment to the Police Department. Again, based upon representations that Mr. Reeves made at the Commission meeting on April 9, 2012, it does not appear that he would receive any special financial benefit as a member of the committee. However, there is more of an appearance of a conflict of interest, which could well be the public perception, based upon the fact that his employer sells equipment to the Police Department. As is the case with Ms. Hagist, it does not appear that Mr. Reeves' business with the Police Department will be impacted by any recommendation made by the committee to the City Commission. It would also appear to be disrespectful to Mr. Reeves' participation with the committee during the several meetings they have already had to remove him from the committee at this time. It would certainly be appropriate for Mr. Reeves to continue participating in the meetings of the committee, but consider abstaining from any vote on the recommendation from the committee to the City Commission, mainly because of the appearance of a conflict of interest as set forth above. In any event, based upon all of the foregoing, it would be appropriate for any member of the committee who feels that they have a conflict of interest to in fact declare that conflict themselves. They could choose to resign from the committee or, because of the length of time the committee has been in existence and the number of meetings already held, continue to participate in all committee activities and then abstain from voting on any recommendation to the City Commission. The above suggestions should not be limited to Mr. Reeves and Ms. Hagist, but to all members of the committee. If all members of the committee are to be unbiased and open - minded, then according to the request from Mr. Ford, none of the committee members should have had any dealings with the City of Atlantic Beach at all, and none should have expressed any opinions in regard to the police building. In would be up to any of the members to then declare whether they have a conflict of interest and to take any appropriate action they deem necessary at that time. Apr 12 12 02:44p Alan Jensen Mayor and City Commissioners April 12, 2012 Page 4 904 - 246 -9960 AGENDA ITEM# IOA APRIL 23, 2012 I hope the above addresses the concerns raised by Mr. Ford in his letter dated April 8, 2012. I will be more than happy to discuss the matter further with anyone, at any time. Cc: City Manager City Clerk :sky