Ethics commission responds to Ralph Thomas about alleged conflict
Editor, The Sun:
As we discussed, attached you will find a letter from the Florida Commission on Ethics. I hope you will print the letter in its entirety. Hopefully this will resolve the untrue complaints that have been alleged against me and we can put this issue to rest once and for all. If you need any additional information, just let me know. I hope you have a great day!
Ralph Thomas
Wakulla County Commissioner
Dear Mr. Thomas:
This is in response to your above referenced inquiry in which you, an elected County Commissioner for Wakulla County, Florida, ask about potential voting conflicts you may have based on your work as a mortgage loan officer. You state that in your work as a mortgage loan officer, you provide residential home mortgages to individuals and families. You indicate that allegations have been raised that when you vote on individual applications to change zoning in your official capacity as a County Commissioner, there is a conflict of interest because your votes to approve such individual applications will increase the number of residential properties available, thereby increasing the number of potential mortgage loan customers.
The statute applicable to your inquiry is Section 112.3143(3), Florida Statutes.1 Section 112.3143(3), which is part of the voting conflict statute, states:
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.
The statute defines “special private gain or loss” as an “economic benefit or harm that would inure to the officer, his or her relative, business associate or principal[.]” See Section 112.3143(1)(d), Florida Statutes. Therefore, a voting conflict would be created if a county commissioner were to vote on any measure that would financially affect himself or herself, or that he or she knows will financially affect a principal by whom he or she is retained, a relative, a business associate, or another person or entity listed in the statute.
When determining whether “special private gain or loss” will occur, Section 112.3143(1)(d) specifies several factors must be considered, including the “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, his or her relative, business associate, or principal and, if so, the nature or degree of the economic benefit or harm . . .” In a number of opinions, the Commission on Ethics has found that the potential effects of a vote to be too “remote and speculative” to constitute the “special private gain or loss” required to violate the statute, when the potential financial effect of the vote on an individual enumerated in the statute is too attenuated.
For example, in CEO 06-8, the Commission considered a situation in which a city councilmember was faced with a vote to redevelop city-owned land located near properties owned by himself or his father. The Commission found the possible financial effect from the votes to be “remote or speculative” and concluded that Section 112.3143(3) would not apply, noting the nature and degree of effect on the properties in question was too uncertain.
Additionally, CEO 89-45 concerned a situation where a city commissioner owned and operated a steel company that designed and bid steel packages to general contractors and developers. These general contractors and developers often appeared before the city commission to obtain approvals for projects located within the city. The Commission on Ethics found the city commissioner would not be in violation of Section 112.3143(3) if he were to vote on projects when, at the time of the vote, he and his company had not entered into any contact with the general contractor or developer concerning the project. In such cases—where he and his company had made no proposals to the general contractor or developer—the Commission found any perceived gain to him was too speculative to find a conflict.
Turning to your inquiry, you indicate your question concerns from individuals who are not your current customers, and that you are not inquiring about county-wide zoning changes. Under these parameters, it appears any special private gain or loss these votes could have on you is too “remote or speculative” to constitute the type of “special gain” that would implicate the voting conflict statute. Accordingly, it appears Section 112.3143(3) will not prohibit you from voting on these measures. The only exception would be if—at the time of the vote— you know or have reason to believe that the individual seeking approval of his or her application for change of zoning is or will be a client of yours in your capacity as a mortgage loan officer. In that case, you should treat the vote as a conflict and respond in accordance with the requirements set forth in Section 112.3143(3) (i.e., declare the conflict prior to the vote, abstain from the vote, and file the voting conflict memorandum (CE Form 8B) within 15 days of the vote).
Should you have further questions, or if this letter misinterprets the facts of your inquiry, please let me know.
Sincerely,
Gray Schafer
Assistant General Counsel
Florida Commission on Ethics
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Editor, The Sun:
I’d like to thank The Wakulla Sun for its careful and conscientious handling of our coming election and the candidates involved.
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Sincerely,
Marj Law
