ABUSE OF PUBLIC POSITION

ARTICLE II, SECTION 8(h)(2), FLORIDA CONSTITUTION

To: Gigi Rollini, Esq., Attorney for the Bay Laurel Center Community Development District (Ocala)

SUMMARY:

Advice is provided to members of the board of supervisors of a community development district concerning the prohibition found in Article II, Section 8(h)(2), Florida Constitution, as implemented by Rule 34-18.001, Florida Administrative Code. Referenced is CEO 82-32.

QUESTION:

Will members of the board of supervisors of a community development district acting in a manner fully compliant with the requirements of Chapters 112 and 190, Florida Statutes, as well as all other applicable statutes and ordinances, be considered to have abused their position to obtain a disproportionate benefit, as prohibited by Article II, Section 8(h)(2), Florida Constitution?¹

Under the circumstances presented, your question is answered in the negative, provided they do not engage in coercive, intimidating, or similarly abusive conduct on behalf of themselves or others.

In your letter of inquiry and additional information provided to our staff, you state you are bringing this inquiry on behalf of the Bay Laurel Center Community Development District's Board of Supervisors. You relate the District is a local unit of special purpose government and derives its authority from Chapter 190, Florida Statutes (Community Development Districts), as well as from Marion County ordinances. You state the District, the service area of which you approximate covers over 13,000 acres, is responsible for storing, processing, delivering, and distributing water, wastewater, and reclaimed water to its residents and commercial customers.

Your specific inquiry deals with the recent amendment ("Amendment 12") to Article II, Section 8 of the Florida Constitution, specifically Article II, Section 8(h)(2), which states:

A public officer or public employee shall not abuse his or her public position in order to obtain a disproportionate benefit for himself or herself; his or her spouse, children, or employer; or for any business with which he or she contracts; in which he or she is an officer, a partner, a director, or a proprietor; or in which he or she owns an interest. The Florida Commission on Ethics shall, by rule in accordance with statutory procedures governing administrative rulemaking, define the term "disproportionate benefit" and prescribe the requisite intent for finding a violation of this prohibition for purposes of enforcing this paragraph. Appropriate penalties shall be prescribed by law.

In accordance with the language contained in the Constitutional prohibition, the Commission adopted Rule 34-18.001, Florida Administrative Code, which became effective on September 30, 2019. In Rule 34-18.001(2), the term "disproportionate benefit" is defined as "a benefit, privilege, exemption or result arising from an act or omission by a public officer or public employee inconsistent with the proper performance of his or her public duties." The Rule lists several factors the Commission should consider in determining whether a benefit, privilege, exemption, or result constitutes a "disproportionate benefit."² It then provides—in Rule 34-18.001(4)—the requisite intent needed to find a violation of the Constitutional prohibition, stating the public officer or public employee must have "acted, or refrained from acting, with a wrongful intent for the purpose of obtaining any benefit, privilege, exemption, or result from the act or omission which is inconsistent with the proper performance of his or her public duties."

You inquire about how Article II, Section 8(h)(2) will apply to the District's Board of Supervisors, which is comprised of five members. You relate the Board primarily is responsible for managing the District and that its duties include assessing and levying taxes and special assessments, approving budgets, exercising control over District properties, controlling the use of District funds, hiring and firing District employees, and financing improvements to the District. You indicate the District Board members are subject not only to the requirements of Chapter 190—which governs the operation of special districts such as community development districts—but also to those of the Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes).

You question whether the District Supervisors could be found in violation of the prohibition in Article II, Section 8(h)(2) of the Florida Constitution, even if their conduct is in compliance with the provisions set forth in Chapters 190 and Part III, Chapter 112, Florida Statutes. Your concern stems from the fact that one of the Supervisors currently serving on the Board is employed by the District's developer, another Supervisor has an ownership interest in the developer, and three of the Supervisors are District customers. Considering this, you state many actions or votes taken by the Board will affect a District Supervisor or a business connected to a District Supervisor, and this effect may be greater than that experienced by others residing within the District who are not affiliated with the developer or who are not District customers.

In particular, you indicate the District has a licensing agreement with the developer who is affiliated with the two Supervisors. Under this agreement, the developer disposes of the byproducts of the District's wastewater treatment, such as biosolids and effluent. You state the District Board—including these two Supervisors—must vote at meetings held every other month to approve payment to the developer to dispose of the waste. Another example you provide of an imminent matter the District Board will face is that it sets the rates for water and wastewater services and these rates personally affect the three District Supervisors who are District customers. You foresee situations similar to these commonly arising before the District Board.

You state the statutory scheme developed for community development districts in Chapter 190 contemplates and permits individuals affiliated with a district developer—or individuals with a personal interest in the operation of the district—to serve as district supervisors. In particular, you emphasize Section 190.007(1), Florida Statutes, which states "[i]t shall not be a conflict of interest under chapter 112 for a board member or the district manager or another employee of the district to be a stockholder, officer, or employee of a landowner or of an entity affiliated with a landowner." See CEO 82-32 (recognizing and applying Section 190.007(1)).³

However, you inquire whether the District Supervisors may still be found in violation of the prohibition found in Article II, Section 8(h)(2) of the Florida Constitution, as implemented in Rule 34-18.001, Florida Administrative Code, even if their conduct is in full compliance with the ethical standards and conflict of interest exceptions found in Chapters 112 and 190. In particular, you ask whether their mere service as voting members of the Board may be enough to trigger a violation of the new Constitutional prohibition, considering they either are affiliated with a developer interfacing with the District or are District customers themselves.

By its very language, the prohibition in Article II, Section 8(h)(2) of the Florida Constitution is triggered only if public officers and public employees are acting in a manner contrary to the proper performance of their duties (i.e., engaging in abusive conduct). The prohibition requires not just conduct resulting in an out—of—proportion benefit to the public officer, public employer, or other enumerated recipient, but also that the public officer or public employee has abused his or her public position to obtain that benefit. Therefore, so long as a District Supervisor is acting in full compliance with all statutes and ordinances governing the operation of the District and his or her conduct as a public officer, an abuse of public position will not be present.

The language in Rule 34-18.001 further emphasizes this point. Rule 34-18.001(2) states the term "disproportionate benefit" encompasses only a benefit, privilege, exemption, or result that is "inconsistent with the proper performance" of a public officer's or public employee's public duties. In other words, if the benefit, privilege, exemption, or result arising from the public officer's or public employee's conduct is contemplated by and consistent with the standards governing his or her public conduct, a "disproportionate benefit" will not be present. And Rule 34-18.001(4) states the requisite intent needed to violate the Constitutional prohibition is a "wrongful intent" to obtain a benefit, privilege, exemption, or result "inconsistent with the proper performance" of a public officer's or public employee's public duties.

Applying this reasoning to your question, so long as a District Supervisor's actions—including service on the Board or voting—are consistent with the proper performance of his or her public duties, meaning in full compliance with all applicable statutes and ordinances, including Chapters 112 and 190, Florida Statutes, the Constitutional prohibition found in Article II, Section 8(h)(2) of the Florida Constitution will not be triggered. In such a circumstance, the District Supervisor will not have abused his or her position with the requisite intent or obtained a "disproportionate benefit" as that term is defined in Rule 34-18.001.

Regarding the District Board's upcoming votes—in particular, the approval of the licensing agreement and the setting of water rates—assuming a Board Supervisor by voting will not violate any applicable provision in Chapters 112 or 190, he or she similarly will not have abused their position to obtain a disproportionate benefit under the Constitutional prohibition. However, again, this lack of abuse to obtain a disproportionate benefit is contingent on the Board Supervisors ensuring their votes comply with all applicable statutes and ordinances. For example, Chapter 190 alone will not insulate a Supervisor from a violation of the Constitutional prohibition if the Supervisor were to take a bribe or similar under—the—table money in exchange for action that otherwise would be in conformity with the provisions of Chapter 190.

To the extent you also inquire whether existing authority interpreting and defining Section 112.313(6), Florida Statutes, may be used to interpret and define the prohibition in Article II, Section 8(h)(2), we note first there are certain differences between the statutory provision and the Constitutional amendment. Section 112.313(6), Florida Statutes, states:

No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself or others.

The language of the statute differs from the amendment in that it is triggered not only when a "disproportionate benefit" results from misconduct by a public officer or public employee, but when a "special privilege, benefit, or exemption" of any degree results. Moreover, the language of the statute applies no matter who receives the "special privilege, benefit, or exemption," while the Constitutional amendment applies only when a "disproportionate benefit" is received by the public officer or public employee, his or her spouse, children, or employer, or a business with which he or she has an enumerated affiliation. Therefore, it cannot be said the amendment and the statute are identical.

However, the requisite intent needed to violate the amendment is highly similar, if not identical, to that of the statute. As previously described, the intent needed to violate the prohibition contained in Article II, Section 8(h)(2) is described in Rule 34-18.001(4), which states the public officer or public employee must have acted, or refrained from acting, "with a wrongful intent for the purpose of obtaining any benefit, privilege, exemption, or result from the act or omission which is inconsistent with the proper performance of his or her public duties." By comparison, the intent needed to violate the statute is found in Section 112.312(9), Florida Statutes, which states the term "corruptly," as used in Section 112.313(6), means conduct:

. . .done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties.

Both the amendment and the statute require an act or omission committed with a "wrongful intent" and for the purpose of obtaining a result "inconsistent with the proper performance" of one's public duties. Therefore, the Commission's existing authority interpreting and clarifying the intent needed to violate Section 112.313(6) may be used as guidance deciding allegations or issues under the Constitutional amendment.⁴

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 25, 2019, and RENDERED this 30th day of October, 2019.

____________________________________

Kimberly B. Rezanka, Chair

^[1]While your inquiry contains three numbered questions, this opinion, while addressing each question, combines them into one general query.