Item P06
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: March 18 . 2009 (Mar)
Division: County Attorney's Office
Bulk Item: Yes
No~
Staff Contact Person/Phone #: Cynthia Hall/3174
AGENDA ITEM '\lORDING: Discussion and direction regarding Section 112.313(3) and (7), F.S.,
waiver requests for members of advisOlY boards.
ITEM BACKGROUND: Sections 112.313 and 112.3143, F.S., m.e both part of the Florida Code of
Ethics. Section 112.3143, F.S" prohibits members of advisory boards who are also employees of
outside organizations ii-om voting 011 items to award contracts or grants to the third patty organizations,
but does not prevent advisory board members who are unpaid members of the outside organizations
voting on those contracts or grants. Many of the contracts and grants involve substantia] sums of
money (> $700K per year), and some are awarded on a "sole source" basis. Section 112.313(3), on the
other hand, prohibits any involvement in the procurement process by the advisOlY board members,
direct or indirect, whether he or she is a paid or unpaid member of the outside orgmlization. Section
112.313(7) also prohibits advisory board members from holding any employment or contractual
relationship with the outside orgmlization. In the past, from time to time (but not in all instances) the
BOCC has waived this provision in order to allow individuals to sit on the advisory board. The BOCC
could continue to grant such waivers. Absent a waiver, the individual could not sit on the advisory
board. In addition, the BOCC could enact an ordinance more stringent than Section 112.3143,
prohibiting advisory board members from voting on contracts and grants to outside organizations with
which the advisory bom-d member is affiliated, whether the advisory board member was an employee
or an unpaid volunteer of the outside organization.
PREVIOUS RELEVANT BOCC ACTION: MCC Section 2-149 prohibits lobbying by fanner
county officers and employees, but there are no MCC provisions addressing CUlTent advisory board
members.
CONTRACT/AGREEMENT CHANGES: None
STAFF RECOMMENDATIONS: None.
TOT AL COST:
$0 INDIRECT COST:
$0
BUDGETED: Yes N/A No
COST TO COUNTY: N/A
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes_.JNo~ AMOUNTPERMONTH_ Year
W/'
APPROVED BY: County Atty TI- OMB/Purchasing _ Risk Management_
DOCUMENTATION:
Included
Not Required_
DISPOSITION:
Revised 1/09
AGENDA ITEM #
MEMORANDUM
Office of the Monroe County Attorney
TO:
Mayor Neugent, Mayor Pro Tem Murphy, County Commissioners
FROM:
Cynthia L Hall, Assistant County Attorney
THROUGH: Suzanne A. Hutton, County Attorney
DATE: March 2, 2009
SUBJECT: Advisory Board Members: Voting Conflict of Interest and Standard of Conduct
Issues
Recently, four members of two advisory boards requested that the BOCC waive any
potential liability under Section 112.313, F.S. All four members of the advisory boards are also
unpaid members of two outside orgmlizations that regularly receive contracts and grant funds
from the BOCC. In fact, in this particular case, the two outside organizations and three related
organizations of which the individuals are also members have received over $2.0 million in
contracts and other grants over the past three years.
Section 112.3143, F.S., is located within the Florida Code of Ethics. This section
prohibits employees of an outside organization from voting on contracts being awarded to the
organization. However, the term "employee" has been interpreted to mean someone receiving
remuneration. As such, the Florida Commission on Ethics has opined that Section 112.3143
does not prevent non-employees from voting on the contracts being awarded to the outside
organization.
However, Section 112.313(3), F.S., also within the Code of Ethics, prohibits any member
of an advisory board from directly or indirectly influencing a decision to purchase goods or
services from an outside entity of which he or she is an officer, partner, director, or employee.
This provision would prevent an advisory board member from voting on a proposed contract to
purchase goods or services from the outside organization of which the member (or his spouse or
child) would violate Section 112.313 (3). The member of the advisory board could not continue
to serve without a waiver.
Certain types of purchases are exempted, including: (a) Contracts awarded after
competitive bidding, provided the advisory board member does not vote on the item; (b) contract
than $500; and (c) "sole source" contracts. Some of the contracts under consideration by our
advisory boards are sole source, but many are not.
Section 112.313(12) allows the governing body to waive the conflict. It is my
understanding that the BOCC has granted waivers in the past, although this seems not to have
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been donc in every instance. Any waiver can only be granted after a full disclosure of the
transaction prior to the waiver and an affirmative vote of two-thirds of the governing body.
There are reasons both in favor of granting and in favor of not granting a waiver,
Reasons in favor of granting the waiver include the following:
(a) The BOCC is a "check and balance" that can control any impropriety that
might exist; because it can refuse to approve proposed contracts sent forward
by the advisory board. (On the other hand, the BOCC may not have any
reason to be aware ofthe conflict.)
(b) It is difficult to find people to sit on advisory boards, and people who are
interested and willing to serve will often have conflicts of interest.
Reasons not to grant the waiver:
(a) Not granting the waiver is the most effective way to avoid the possibility that
BOCC is paying an inflated price for goods and/or services and the most effective
way to make sure that available funds are being spread to a wide number of
potential recipients, thus fostering additional sources for goods and services in the
future.
(b) Not granting the waiver avoids the appearance of impropriety as well as the
possibility of actual impropriety. If the BOCC chooses not to waive the conflict,
the member sitting on the advisory board simply does not participate either in
votes or in discussions on the agenda items involving p,?ssible conflicts or grants
to the member's third party organization.
Section 112.326, F.S., allows local governments to enact ordinances more stringent than
the state statute. Thus; for exmnple, the BOCC could consider enacting an ordinance that would
prohibit all advisory board members voting on contracts or grants to the third party organizations
of which they are members, even if the advisory board members receive Section 112.313(12)
waivers. Advisory board members who are paid employees of third party organizations under
contract with the County are already prohibited from voting under Section 112.3143.
*****
Sample Ordinance Language:
Voting Conflicts: Members of Advisory and Quasi-Judicial Boards. No members of any board
perfonning quasi-judicial functions and or members of an advisory board shall vote on any
matter presented to an advisory board or quasi-judicial board on which the person sits ifthe
board member will be directly or indirectly affected by the action of the board on which the
member serves, and the board member has any of the following relationships with any of the
persons or entities appearing before the board: (i) officer, director, partner, of counsel,
consultant, employee, fiduciary or beneficiary; or (ii) stockholder, bondholder, debtor or
creditor.
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