CEO 10-6 -- April 21, 2010

VOTING CONFLICT

MOSQUITO CONTROL DISTRICT PURCHASING REAL PROPERTY OWNED BY BUSINESS ENTITIES CREATED AND OWNED BY COMMISSIONER'S BROTHER-IN-LAW


To: Name withheld at person's request (Islamorada)

SUMMARY:

A Mosquito Control District Commissioner would be prohibited by Section 112.3143(3)(a), Florida Statutes, from voting on the acquisition of a parcel of real property which is owned by business entities created and owned by the Commissioner's brother-in-law.

QUESTION:


Does Section 112.3143(3)(a), Florida Statutes, prohibit a Mosquito Control District Commissioner from voting on her District's acquisition of a parcel of real property which is owned by business entities created and owned by the Commissioner's brother-in-law?


Under the circumstances presented herein, your question is answered in the affirmative.


You advise that you make this inquiry on behalf of ("Commissioner") who is a member of the Florida Keys Mosquito Control District. The Commissioner's sister is married to a man who, with his children, own through fictitious legal entities a parcel of property on Rockland Key. We are advised that the property was initially conveyed to the Commissioner's brother-in-law in his individual capacity. Then, he conveyed the property to a trust ("Trust"). Half of the property was conveyed back to him as an individual. He then conveyed this interest to a limited liability company ("LLC"). You advise that you were told by the Commissioner's brother-in-law that the Monroe County Tax Collector lists the owner of the property as the Family Limited Partnership ("Limited Partnership"). You advise that the Commissioner's brother-in-law is the owner of approximately 1% of the Limited Partnership and is entitled to approximately 3% of the Trust as a beneficiary. The owners, operators, managers, and/or directors of these entities are only the Commissioner's brother-in-law and his children. Neither the Commissioner nor her sister owns, are officers/directors of, or are beneficiaries of any of the fictitious legal entities in the chain of title.

 

In light of the foregoing, you inquire whether the Commissioner is prohibited from voting on the acquisition of the property.

 

The only provision of the Code of Ethics implicated by your inquiry is Section 112.3143(3)(a), Florida Statutes, which provides:


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.


For purposes of Section 112.3143(3)(a), the term "relative" is defined as:


Any father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, or daughter-in-law. Section 112.3143(1)(a), Florida Statutes.

 

 


Section 112.3143(3)(a) prohibits a Mosquito Control District Commissioner from voting on a matter which would inure to the special private gain or loss of herself, a relative, a business associate, or a principal by whom she is retained or to the parent organization or subsidiary of a corporate principal by whom she is retained, other than an agency as defined in Section 112.312(2).  In the event that the Commissioner's vote would inure to the special private gain or loss of one of the enumerated persons, the statute requires abstention and certain disclosures.


The first step of the analysis under Section 112.3143(3)(a) is to determine whether the vote would inure to the special private gain or loss of any of the prohibited beneficiaries enumerated in that Section.  Because you have advised that the Commissioner is not involved in the ownership of the land, the Trust, or the Limited Partnership, it is clear that the vote would not inure to her special private gain or loss.  It is also clear that the Commissioner is not retained by any of the corporate entities involved.  Because "brother-in-law" is not included in the definition of "relative," a vote which would inure solely to his special private gain or loss would not be prohibited.  However, because a "sister" is a "relative" for purposes of Section 112.3143(3)(a), we must address whether the matter would inure to the special private gain or loss of the Commissioner's sister.


If the sale were to occur, it would result in a special private gain (or loss) to the Trust and the Limited Partnership. We have previously opined that a matter which would inure to the special private gain or loss of an entity in which a natural person owns a substantial interest necessarily constitutes gain or loss to the natural person. See, for example, CEO 09-2 (Question 2) and CEO 08-7. The rationale supporting those opinions is equally applicable in a situation where, as here, the fictitious legal entities involved are merely the vehicles for family ownership of land. This is not a situation where the business entity involved is composed of numerous unrelated investors. Given the closely held nature of the entities, we find that the transaction would inure to the special private gain or loss of the Commissioner's brother-in-law.


We have opined that when a person and his spouse share a household and living expenses, or he contributes to her support, his gain would also constitute gain to his spouse. See, for example, CEO 94-27, CEO 83-49, and CEO 83-29. Because you have advised that the Commissioner's sister and brother-in-law share a household and living expenses, the special private gain or loss realized by the Commissioner's brother-in-law would also constitute a special private gain or loss to the Commissioner's sister. Therefore, we conclude that the Commissioner would be prohibited from voting on the transaction.


Accordingly, we find that the subject Commissioner is required to abstain, publicly state to the assembly the nature of the voting conflict, and file a CE Form 8B, Memorandum of Voting Conflict for County, Municipal other Local Public Officers, with the person responsible for recording the minutes within 15 days after the vote on the District's acquisition of the property.


Your question is answered accordingly.


ORDERED by the State of Florida Commission on Ethics meeting in public session on April 16, 2010 and RENDERED this 21st day of April, 2010.




__________________________

Roy Rogers

Chairman