CONFLICT OF INTEREST; VOTING CONFLICTS

MEMBER OF CITY BIGHT MANAGEMENT DISTRICT BOARD
OWNING A BUSINESS THAT LEASES A SLIP AT THE BIGHT

To: Name Withheld (Monroe County)

SUMMARY:

A prohibited conflict of interest would not be created under Section 112.313(7)(a), Florida Statutes, were a member of a municipal bight management district board to own a business leasing a slip at the bight. The lease agreement for the slip is not with the board, but with a separate agency, and Section 112.313(7)(b), Florida Statutes, "waives" any further conflict under Section 112.313(7)(a), given that the member is serving in a position designated for one in his professional discipline. Nor does Section 112.3143, Florida Statutes, prohibit the board member from participating in, or voting on, matters affecting a discount on land at the marina that is leased from the State, as any gain or loss to the board member or his business would be remote and speculative. Referenced are CEO 25-7, CEO 25-6, CEO 23-4, CEO 23-2, CEO 22-5, CEO 21-4, CEO 20-8, CEO 20-7, CEO 19-22, CEO 18-14, CEO 18-4, CEO 17-1, CEO 16-9, CEO 16-2, CEO 14-3, CEO 12-9, CEO 11-6, CEO 10-24, CEO 09-1, CEO 04-1, CEO 01-16, CEO 97-15, and CEO 96-19.

QUESTION 1:

Would a prohibited conflict of interest exist under Section 112.313(7)(a), Florida Statutes, when an appointed member of a municipal bight management district board owns a business leasing a slip at the bight marina?

Under the circumstances presented, Question 1 is answered in the negative.

In your letter of inquiry and additional information provided to our staff, you state you currently serve as a member of the Bight Management District Board for the City of Key West (the Board),¹ a position to which a City Commissioner appointed you in October 2024. You ask whether any prohibited conflicts of interest are presented by your company leasing a slip at a marina that the Board manages. To better understand the context of your inquiry, the following discussion is provided about the Board's role and responsibilities.

You indicate the Board assists in managing the two distinct properties within the Key West Bight: (1) approximately 8.8 acres of City-owned commercial property, which houses shops, restaurants, bars, and museums; and (2) adjacent submerged bay bottom land that the City leases from the State and operates as a marina. You state there are approximately 188 slips at the marina, with 60 of those slips designated for commercial use and the remaining set aside for rental on a more temporary basis. Your company currently leases one of the 60 commercial slips. You relate that most of the Board's decisions concern the 8.8 acres of commercial property—also known as the "upland" property—and that the commercial property brings in the majority of the Bight's revenue.

Despite the Board's duties largely focusing on the "upland" property, the City's Code of Ordinances does set aside several responsibilities for the Board regarding the marina. For instance, the City Code authorizes the Board to:

• Approve lease terms negotiated between marina tenants and the Bight Manager (Sections 2-546—Definitions and 2-554(a)(6)—Powers and duties; responsibility of city);
• Approve rental amounts for marina leases as recommended by the Bight Manager (Section 2-546—Definitions and Section 2-554(a)(6)—Powers and duties; responsibility of city);
• Facilitate and approve all permit applications needed to redevelop and expand the marina (Section 2-554(a)(2)—Powers and duties; responsibility of city);
• Apply to the State to renew bay bottom lease rights for the land underneath the marina (Section 2-554(a)(3)—Powers and duties; responsibility of city); and
• Review and make final determinations of all conflicts between marina tenants and the Bight Manager (Section 2-554(a)(7)—Powers and duties; responsibility of city).

While these ordinances appear to grant the Board a certain degree of autonomy in managing the marina and its tenants, you indicate that, in practice, the Board largely functions in an advisory capacity, even on matters over which it has been given authority. For instance, you relate it is actually the City Manager who oversees the day-to-day operations of the Bight properties, and that the City Manager alone hires the Bight Manager, who directly interfaces with marina tenants.² You also state that while the ordinances allow the Board to set lease terms and rental amounts for marina tenants, the Board, in practice, simply makes recommendations on such matters to the City's Community Redevelopment Agency (CRA),³ which has final approval.

The lease agreements themselves, from what you indicate, are on a standard template approved by the CRA, and are between the marina tenants and the CRA, not the Board. You emphasize the Board is not involved in approving individual leases and has no authority on its own to change the CRA-approved template. On those rare occasions when changes need to be made to the standard lease agreement, such as a rate adjustment, the Board makes recommendations subject to the CRA's final approval.⁴ In short, while the Board technically has authority on certain matters related to the marina, as indicated in the City ordinances, many of its decisions require the involvement and approval of other City officers and boards.

This background provides a useful framework to understand your personal involvement with the marina. You indicate you are the sole owner and a paid employee of Key West Marine Assistance LLC, which began leasing one of the marina's commercial slips in 2014. You relate the lease was the standard dockage agreement approved by the CRA—there were no special or unique terms—and the only parties to the agreement were the CRA and your business, which remain the only parties to this day.⁵ Annual rental increases are built into the language of the lease, which automatically renews on a month-to-month basis. You indicate the Board was not involved in initially approving the agreement or in approving any of your business's subsequent renewals, as the Bight Manager has handled such renewals. Yet you indicate the Board is aware of your business's lease at the marina, as you disclosed it in your application prior to being appointed to the Board.

You relate that having the lease at the marina is critical to the success of your business, which is an offshore emergency marine salvage service. You state the marina is "uniquely positioned" as it provides immediate access to deep water with no speed restrictions, which is essential for the business's fast-response salvage boat when offshore vessels are in distress. You also indicate the marina is singular in another respect as the other nearby marinas, all of which are privately operated, do not offer any commercial slips.

The fact that you operate a marine salvage business is also relevant to your service on the Board. Section 2-549 of the Code of Ordinances states the Board shall consist of seven members, each appointed by a different City Commissioner, and that:

[t]he City Commission shall attempt to ensure that at least one person with a demonstrated interest in community service from each of the following disciplines shall be represented on the board: legal, banking, historic preservation, maritime, real estate, Chamber of Commerce.

(emphasis added).⁶ You indicate you currently serve as the Board's designated member from the "maritime" discipline.

Considering these facts, we now address whether your business's lease at the marina creates a prohibited conflict of interest with your continued service on the Board. The statute relevant to your inquiry is Section 112.313(7)(a), Florida Statutes, which provides:

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 or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties.

There are two prohibitions in Section 112.313(7)(a). The first prohibits a public officer,⁷ such as a Board member, from being employed by or having a contractual relationship with a business entity that either is being regulated by his or her agency or is doing business with his or her agency. Here, you clearly have employment or a contractual relationship with your marine salvage business. However, there is no indication that the Board (i.e., your "agency") regulates your business. See CEO 18-4 (finding a public agency must control a business's operations or modes of doing business for "regulation" to exist). Nor does it appear the Board is doing business with it. While a lease can constitute "doing business" for purposes of the statute, your business's marina lease is not with the Board, but with the CRA, which is an entirely separate agency. See § 112.312(2), Fla. Stat. (finding the term "agency" can mean individual units of government within a political subdivision); see also CEO 23-4 (finding "agency" to be the lowest unit of government to which one's influence extends); CEO 11-6 and CEO 01-16 (both opinions finding a municipal officer's "agency" to be his or her specific municipal board). Because your company is not being regulated by or doing business with the Board, the first part of the statute does not apply.

The second part of Section 112.313(7)(a) prohibits a public officer from having an employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or would create an impediment to the full and faithful discharge of his or her public duties. This portion of the statute is entirely preventative in nature and is concerned with what might happen. See CEO 21-4. It requires examining the public officer's duties and his or private employment or contractual relationships "to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which tempts dishonor." Zerweck v. State Commission on Ethics, 409 So. 2d 57, 61 (Fla. 4th DCA 1982) (internal quotations omitted). If there is even the potential that a private employment or contractual relationship could compromise one's public duties, that is all that is needed to create a conflict under the second part of the statute. See CEO 20-8, Question 4. We have repeatedly opined that even a single potential conflict may give rise to a violation, as the statutory language concerns not just continuing or frequently recurring conflicts, but any instance that could impede the full and faithful performance of a public officer's duties. See CEO 25-6, Question 1, and CEO 20-8, Question 1.

Here, the municipal ordinances that you provide indicate the Board is authorized to approve lease terms and rental rates for marina tenants, issue various permits to redevelop and expand the marina, and make final determinations on disagreements between the Bight Manager and marina tenants. In other words, it appears the Board has the authority to become involved in—and make decisions concerning—issues affecting marina tenants, such as your marine salvage business. For this reason, at first blush, it seems that you have an employment or contractual relationship that could, at the very least, create a temptation to dishonor your public position on the Board. Therefore, absent the applicability of an exemption, there would be a prohibited conflict of interest here under the second part of Section 112.313(7)(a).⁸

In your inquiry, you identify several different exemptions and ask whether any might negate this conflict. For instance, you emphasize the Board, in practice, functions almost entirely in an advisory capacity, passing along its recommendations to the CRA. Section 112.313(12), Florida Statutes,⁹ does provide for a waiver of conflicts under both parts of Section 112.313(7)(a) when the public officer in question is serving on an advisory board. See CEO 16-9, Question 1, and CEO 16-2, Question 2. However, for the advisory board exemption to apply, the board's attributes and operations must be wholly advisory. See CEO 10-24, Question 2 and CEO 96-19. Here, the municipal ordinances quoted above clearly give the Board authority to make final determinations in matters such as approving lease terms and rental rates. Even if the Board, in practice, has been relegated to making recommendations on these matters to the CRA, we cannot overlook that the Board has that authority and may, at some point, fully exercise its decision-making in those regards. Moreover, the ordinances also give the Board authority to perform certain tasks, such as applying to the State to renew lease rights on the marina's bay bottom land, and provide it with final authority to settle disputes between the Bight Manager and tenants. While disputes may rarely arise, you acknowledge there have been at least two matters within the past year where such disagreements came before the Board. For these reasons, we do not find it appropriate here to apply the exemption in Section 112.313(12), which is reserved for wholly advisory bodies.

You also emphasize your company began leasing a slip at the marina nearly ten years before you were appointed to the Board, and claim that any conflicts under Section 112.313(7)(a) should be considered "grandfathered." In certain circumstances, the Commission has applied Section 112.316, Florida Statutes,¹⁰ to "grandfather" certain contracts from creating a prohibited conflict under the first part of Section 112.313(7)(a). See CEO 25-7, Question 1. However, we consistently have found this "grandfathering" exemption applies only to the first part of Section 112.313(7)(a), not the second part, which is the portion of the statute that presents a facial conflict for you. See CEO 22-5, CEO 09-1, and CEO 97-15. This is because Section 112.316, by its very language, applies only when there is no possibility that a private pursuit will interfere with the full and faithful discharge of a public officer's duties, but the second part of Section 112.313(7)(a) addresses situations where there is the possibility of such interference. Therefore, Section 112.316 may not be used to alleviate a conflict under that part of the statute.

You also assert any prohibited conflict under Section 112.313(7)(a) can be exempted under the "sole source of supply" consideration found in Section 112.313(12)(e), Florida Statutes. As support, you claim your business is the last marine salvor in Key West operating under a license from an admiralty court. While this may be true, the exemption in Section 112.313(12)(e) applies only when a public officer's agency needs a particular good, realty, or service, and his or her business is the "only source of supply within the political subdivision[.]" Because there is no indication here that your company is selling anything to the Board, this exemption is not applicable.

While the foregoing exemptions do not apply, your unique facts require the analysis of an additional exemption found in Section 112.313(7)(b), Florida Statutes. This exemption pertains to conflicts under Section 112.313(7)(a) and states:

This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by person holding such public office or employment is required or permitted by law or ordinance.

We have applied Section 112.313(7)(b) to waive conflicts under Section 112.313(7)(a) when a law or ordinance recognizes "that certain credentials are so vital to the expertise and operation of a public board that the otherwise conflicting business/client connections of certain members must yield to the public purpose of a portion of the board's membership possessing such professional training and practice." CEO 04-1, Question 1, and see CEO 20-7 and CEO 19-22. The exemption in Section 112.313(7)(b) is applicable when a conflict under Section 112.313(7)(a) stems from a board member practicing in a particular profession or possessing certain professional criteria, but a law or ordinance permits the board member to come from that particular profession (see CEO 20-7, Question 3) or makes that professional criteria a prerequisite for board service (See CEO 11-6, n.4). If an exemption is applicable under Section 112.313(7)(b), it applies to conflicts under both the first and second parts of Section 112.313(7)(a). See CEO 17-1 and CEO 04-1, n.5.

Here, as previously noted, City Ordinance Section 2-549 states the City Commission "shall attempt to ensure that at least one person" from certain professional disciplines is represented on the Board. The ordinance then lists various professional disciplines that should be represented, including "maritime," which is the position in which you serve. This Ordinance demonstrates an intent to have an individual involved in the maritime industry represented on the Board, despite the conflicts of interest that such service might present. Because you occupy that position, we find Section 112.313(7)(b) applies to negate any conflict presented under the second part of Section 112.313(7)(a). This is the exact scenario in which Section 112.313(7)(b) was intended to apply, as the conflict under Section 112.313(7)(a) is directly related to the criteria uniquely positioning you for Board service. Were this exemption not to apply, your service on the Board effectively would prohibit you from continuing in your business, at least in the way in which it currently operates. From what you indicate, your business responds to maritime emergencies, which makes its marina lease critical as the marina offers the most immediate access to deep water, has no speed restrictions, and no nearby marinas offer commercial slips. In situations such as this, Section 112.313(7)(b) was designed to negate exactly the kinds of conflicts presented under Section 112.313(7)(a).

In the past, we have applied Section 112.313(7)(b) in similar circumstances. For instance, in In re George Tapper, Complaint No. 79-008, the respondent was the chairman of a port authority while simultaneously owning and managing a company being regulated by the port authority. Despite the conflict presented under Section 112.313(7)(a), we applied Section 112.313(7)(b) and found no violation, noting that the special act creating the port authority allowed for two commissioners to be primarily engaged in the maritime business, and the commissioner in question was occupying one of those designated positions. See Taunton v. Tapper, 396 So. 2d 843, 844 (Fla. 1st DCA 1981) (explaining the background of Complaint No. 79-008 before analyzing an attorney's fees dispute related to the case). The facts in your inquiry are nearly identical, as you are serving in a position permitted by ordinance to be occupied by someone in the maritime industry.

Also pertinent is CEO 20-7, where members of a municipal task force were required to review a particular zoning ordinance. Two members of the task force were required by resolution to have "experience in the practice of land use law and/or real estate development law." Given this criteria, we found that attorneys practicing land use law or real estate development law could serve in those seats without violating Section 112.313(7)(a), as Section 112.313(7)(b) could be used to negate any conflict arising from their legal practice. Similarly, here, Section 112.313(7)(b) applies as you are serving on the Board due to an ordinance permitting someone with experience in the maritime industry, such as yourself, to occupy a position.

Drawing this analysis to a close, we find that the exemption in Section 112.313(7)(b) waives any conflict that you have under the second part of Section 112.313(7)(a), given that you are occupying a position on the Board specifically designated for someone coming from your professional discipline. That being said, if the maritime designation is ever assigned to another Board member, you will lose the exemption offered by Section 112.313(7)(b) and should contact the Commission for further guidance.¹¹

Question 1 is answered accordingly.

QUESTION 2:

Would a voting conflict occur were an appointed member of a municipal bight management district board, who owns a business leasing a slip at the bight marina, to discuss and vote on matters concerning whether the municipality should continue receiving a discount on marina land being leased from the State?

Question 2 is answered in the negative.

You also inquire whether you will have a conflict of interest were you to discuss and/or vote on matters concerning the bay bottom land being leased from the State. You relate that, currently, the City leases the bay bottom land comprising the marina from the Internal Improvement Trust Fund. The Florida Department of Environmental Protection (DEP) administers and enforces the terms of the lease. You relate the City has been receiving a 30% discount on its rental of the bay bottom land in exchange for meeting certain conditions regarding the use of slips at the marina. You inquire whether you will have a conflict if you, as a Board member, were to either discuss the City's eligibility for that discount or propose remedial action if it is determined that the City is not meeting the required conditions.¹² Your question stems from the possibility that losing the discount may affect the rates for marina leases, including the commercial lease held by your business.

Without commenting on whether the City is meeting its eligibility requirements for the discount—which would depend on facts not relevant to this analysis—we offer the following discussion concerning whether this scenario presents a conflict of interest for you. The statute relevant to your inquiry is Section 112.3143, Florida Statutes, the voting conflicts law, which has standards of conduct regarding when an appointed local officer, such as yourself, may participate in a discussion and/or vote on a particular measure. These provisions state:

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 as 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 office 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 he minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143(3)(a), Florida Statutes]

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 this or her interest in the matter. [Section 112.3143(4), Florida Statutes]

These statutory provisions indicate you will have a voting conflict—and, therefore, should not participate or vote—on any measure that will inure to "the special private gain or loss" of yourself or a principal by whom you are retained. Section 112.3143(1)(d), Florida Statutes, defines "special private gain or loss" as "an economic benefit or harm." But according to that statutory definition, one consideration when evaluating whether such a gain or loss exists is "[t]he degree to which there is uncertainty at the time of the vote as to whether there would be any economic benefit or harm to the public officer, [or his or her] principal." The Commission, therefore, has found that no special private gain or loss exists in situations where the financial gain or loss to the public officer, or another party enumerated in the statute, is remote and speculative. See CEO 18-14 and CEO 14-3.

Here, it is possible that if the City loses the discount on its lease with the State, it could raise the rates for marina tenants, such as your marine salvage service (i.e., your "principal"). However, this possibility is too uncertain to support a violation of Sections 112.3143(3) or 112.3143(4). At this point, it is impossible to predict what the State would determine—or what actions it might take—if concerns are expressed about the discount. And even if the State decides to remove the discount, it is equally unclear if that will affect the rates of the marina leases. From what you indicate, if the City no longer has to comply with the requirements needed to receive the discount, it will have the flexibility to bring in revenue sources for the marina previously unavailable under the terms of the discount. And you state the discount itself amounted to only $40,000 to $60,000 each year, which is a relatively small amount of the $6 million dollars that the Bight generates in annual profits. It is unclear whether the City would choose to absorb that loss, offset it through other avenues, or raise lease rates to adjust for that amount. In short, even acknowledging the possibility that losing the discount could financially affect you and/or your business, this possible effect is too remote and speculative to find it constitutes "special private gain or loss" under the voting conflict law.

For this reason, we find that Sections 112.3143(3) and 112.3143(4) would not be implicated were you to discuss and vote on matters related to the discount from the State on the bay bottom lease, as presented here.

Question 2 is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 5, 2026, and RENDERED this 10th day of June 2026.

____________________________________

Jon M. Philipson, Chair

^[1]Miriam-Webster's Dictionary defines "bight" as a "bend in a coast forming an open bay."