Title: Opinion File 77-100 thru 77-106
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Permanent Link: http://ufdc.ufl.edu/WL00003500/00001
 Material Information
Title: Opinion File 77-100 thru 77-106
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blains Collections - Opinion File 77-100 thru 77-106
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 53
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003500
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text
C-


S GIBBONS, UCKER, MCEWEN, SMITH, COFER & TAUB
ATTORNEYS AND COUNSELLORS AT LAW
600 MADISON STREET. P.O. BOX 1363
P TAMPA. FLORIDA 33601
(813) 228-7841


une 23, 1977 KEY WORDS:







The Honorable Larry Gonzalez
Executive Director
Commission on Ethics
P. 0. Box 6
allahassee, Florida 32302

RE: S. C. Bexley, Jr.


77-100
M. o. nOInONS, IR02.103n
OUNUT OIBBONS, 1806.1070
JAMES M. MCIWBN, 100U-.170
L. M. IILAIN DAVID H. MoK VEN
JOSEP'I 1. COFER MAI.COLM P. MICKLT. I in
THOMAS B. CONE. JR. GREGORY R. MIERZWINSKI
A. FLBTCHER IYOTTIS B. BRADKORD MILLBR
AHTHUIH 8. OGIBONS WILLIAM R. PLATT
KIRK M.. GIBBONS MARRBA 0. RYDInT iR
MYRON 0. GIBBONS ARMIN H. SMITH. JR.
4AM M. OIBRONS RIrHARD N. ST'IN
RUCH S. GOLT)RTrIT THIOnOR OC. TAUB
SA. GUYTON, JR. WM. RARHI, TUCKBR
VICTORIA L. niUNT JACQUELINE R. WHATLEY
P LAZZARA ROBERT V. WILLIA3M


IIN RZPMTT RRB, TO*


Member of Governing Board
Southwest Florida Water Management District


Dear Sir:

Mr. Bexley has asked me, as attorney for Southwest Florida
Water Management District and for members of the governing
board, to request an advisory opinion to establish the
standard of duty of Mr. Bexley under the following
circumstances:

1. Mr. Bexley is a member of the governing board
of Southwest Florida Water Management District, a public
corporation created pursuant to Chapter 61-691, Laws of
Florida, and continued by Chapter 373, Florida Statutes.

2. Mr. Bexley and members of his immediate family
own property upon which Mr. Bexley engages in raising
cattle and other farming operations, as his primary source
of income.

3. A well field of a public water supply system is
located near Mr. Bexley's property and pursuant to 373.116,
F.S., and rule nos. 16J-2.07 and 16J-2.08, F.A.C., Mr. Bexley
has received notice (copy attached) that an application has
been made with Southwest Florida Water Management District
by the public water supply system for a consumptive use permit
in accordance with the provisions of Part II of Chapter 373,
F.S. (S373.203-373.249) and Chapter 16J-2, F.A.C. (Rules
of Southwest Florida Water Management District).

4. Mr. Bexley believes that the withdrawal from this well field
has an effect upon surrounding property including his own


/-y^^ sq





G- BIWONS. TU KER. McEWEN. SMITH. COFER & TAUB CONTINUING OUR
\ 6-24-77 7 0 1
SHEET NO.
2



property and believes that this permit.should not be granted
without a public hearing as allowed by law.

Please advise Mr. Bexley of any particular standards of
public duty he has as it relates to his continued service
on the district governing board in connection with an'
application for a consumptive use permit for withdrawal
ov water from lands adjacent to or nearby Mr. Bexley's
property, especially insofar as it relates to:

1. His filing written objections as contemplated
in 373.229(2), F.S.

2. His participation during any hearing before the
board on such application.

3. His voting on any matters relating to this permit
application.

Mr. Bexley has no objection to the use of his name in
connection with publication of your advisory opinion pursuant
o this matter. If you desire additional details, please
contact me.

SSincerely,



L. M. Blain

LMB/gw


cc: SWFWMD Governing Board Members





4 .
Sctuthwest Florida Water Management Distrr
5066 U. S. HIGHWAY 41 SOUTH
BROOKSVILLE, FLORIDA 33512


S77-102

,,' 'P PM **- .

!V R B tA3i 19 1.7
) ( 1 77


Ilr. S. C. Bexley, Jr.
Route 1, Box 2629
Land O'Lakes, FL 33539


CERTIFIED r'AIL NO. 2829


Tli!.F

S'I
u :


NOTICE OF AN APPLICATION
FOR A CONSUIPTIVE USE PERMIT
IN HILLSBOROUGH & PASCO COUNTIES



As an adjacent property owner you are hereby notified that the Southwest
Florida waterr MFanagement District has received an application for a Consu:mptive.
Use Pernit to withdraw water from wells for public supply from:

27703547 City of St. Petersburg
P.O. Box 2842
"n- 4... ~.- 1C1 '717


I _


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* .- .d ..4r / '/ .





SRoom 338, Holland Building (904) 4887864
DONALD H. REED, JR. P.O. Box 6 LAWRENCE A. GONZALEZ
Chairman Tallahassee, Florida 32302 Executive Director

July 21, 1977 CEO 77-119

Mr. L. M. Blain
Attorney for Southwest Florida
Water Management District
Post Office Box 1363
Tampa, Florida 33601

RE: CONFLICT OF INTEREST-Member of governing board
of water management district objecting to or
participating in consideration of consumptive
use permit application which would adversely
affect water level on his personal property

Dear Mr. Blain:

This is in response to your request for an advisory opinion from the Commission
on Ethics in behalf of Mr. S. C. Bexley, Jr., member of the governing board
of the Southwest Florida Water Management District (SWFWMD). Your inquiry
has been consolidated into two questions which are answered separately below,
the first being substantially as follows:

I. WOULD A CONFLICT OF INTEREST BE CREATED WERE A
MEMBER OF THE GOVERNING BOARD OF A WATER
MANAGEMENT DISTRICT TO FILE WRITTEN OBJECTIONS
TO A PROPOSED CONSUMPTIVE USE PERMIT FOR THE
WITHDRAWAL OF WATER FROM A WELL FIELD LOCATED
NEAR PROPERTY OWNED BY THE BOARD MEMBER, WHERE
SUCH WITHDRAWAL WOULD, IN THE BOARD MEMBER'S
OPINION, ADVERSELY AFFECT SURROUNDING PROPERTY
INCLUDING HIS OWN?

This question is answered in the negative.

You advise in your letter of inquiry that Mr. Bexley and members of his
immediate family own property upon which he engages in farming and cattle
raising as his primary source of income. A well field of a public water
supply system is located near the Bexley property and, pursuant to Section
373.116, Florida Statutes and rules numbered 16J-2.07 and 16J-2.08, F.A.C.,
Mr. Bexley has received notice that an application has been made with
SWFWMD by the public water supply system for a consumptive use permit in
accordance with the provisions of Part II, Chapter 373, Florida Statutes,
and Chapter 16J-2, F.A.C.






Don L. Asher DuBose Ausley Paul R. Brown, M.D. John A. Grant, Jr.
Don L. Asher DuBose Ausley Paul R. Brown, M.D. John A. Grant, Jr.


Charlotte F. Hubbard Ed H. Price, Jr.


Lois Harrison


James A. Sebesta






Mr. ,M. Blain
Page Two CEO 77-119
July 21, 1977

r-

Mr. Bexley is of the opinion that the withdrawal of water from this well
field will adversely affect the water level on surrounding property, in-
cluding his own, and believes that such permit should not be granted by
SWFWMD without a public hearing as provided for in Section 373.229, Florida
Statutes. As a member of the governing board of SWFWMD, which board
regulates the issuance of consumptive use permits, Mr. Bexley questions
whether a prohibited conflict of interest would be created were he to file
such objections while remaining on the SWFWMD board.

No provision of the Code of Ethics for Public Officers and Employees addresses
a public officer's appearing, in his own behalf, before any agency of govern-
ment, including his own agency. Although Section 112.3145(4) requires
quarterly disclosure of a public officer's clients represented for compensa-
tion before agencies at his level of government, pro bono representations
and representations in one's own behalf are not even required to be disclosed.
Accordingly, we find no conflict of interest to be created were the subject
SWFIMD board member to file with that board written objections to the granting
of a consumptive use permit, the issuance of which would adversely affect
his personal interests.

Once the SWFWMD governing board begins consideration of the application,
however, certain standards of duty attach to Mr. Bexley as a member of the
board. This leads directly into your second question, which is substan-
/^ tially as follows:

II. WHAT IS THE STANDARD OF DUTY FOR A MEMBER OF THE
GOVERNING BOARD OF A WATER MANAGEMENT DISTRICT
RELATIVE TO PARTICIPATION IN AND VOTING UPON THE
ISSUANCE OF A CONSUMPTIVE USE PERMIT, WHERE SAID
BOARD MEMBER'S PERSONAL PROPERTY STANDS TO BE
ADVERSELY AFFECTED WERE SUCH PERMIT TO BE
GRANTED?

Relative to voting conflicts of interest, the Code of Ethics provides as
follows:

No public officer shall be prohibited from
voting in his official capacity on any matter.
However, any public officer voting in his
official capacity upon any measure in which
he has a personal, private, or professional
interest and which inures to his special pri-
vate gain or the special gain of any principal
by whom he is retained shall, within 15 days
after the vote occurs, disclose the nature of
his interest as a public record in a memo-
randum filed with the person responsible for
recording the minutes of the meeting, who


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Mr. L. M. Blain
Page Three CEO 77-119
- July 21, 1977

shall incorporate the memorandum in the
minutes. Section 112.3143, Florida Statutes
(1975).

Accordingly, no public officer is denied the right to vote on any matter.
In Our opinion, this provision contemplates that, even where an official
may have a private interest in the issue, he may, in his own discretion,
be able to maintain impartiality and cast his vote in the public interest.
See CEO 76-62. Therefore, we find that the subject SWFWMD board member may
participate in discussion of the proposed permit and may exercise his right
to vote on such permit, in his own discretion.

However, inasmuch as the matter being considered potentially will inure to Mr.
Bexley's private gain, i.e., if the permit is denied, a voting conflict
would be created under the above-quoted Section 112.3143. Should he choose
to participate in discussion and/or vote on the matter, he therefore would
be required to disclose such conflict via the filing of a Memorandum of
Voting Conflict, CE Form 4, with the person recording the minutes of the
meeting at which the vote occurred. Alternatively, he may recuse himself
from participation and voting pursuant to Section 286.012, Florida Statutes
(Supp. 1976), which provides as follows:

VOTING REQUIREMENT AT MEETINGS OF GOVERNMENTAL
SBODIES.--No member of any state, county or muni-
cipal governmental board, commission, or agency
who is present at any meeting of any such body
at which an official decision, ruling, or other
official act is to be taken or adopted may
abstain from voting in regard to any such
decision, ruling, or act, and a vote shall be
recorded or counted for each such member present,
except when, with respect to any such member,
there is or appears to be a possible conflict
of interest under the provisions of Section
112.311, 112.313, or 112.3143. In such cases
said member shall comply with the disclosure
requirements of Section 112.3143.

Reading this statute in conjunction with Section 112.3143, quoted above,
no public officer may abstain from voting unless he has or appears to have a
conflict of interest pursuant to the enumerated provisions of the Code of
Ethics. Where the public officer perceives a conflict, he looks to Section
112.3143, which offers two alternatives: (1) he may exercise his right to
vote in spite of the conflict, whereupon he is required to file a Memorandum







.* :-. Mr. M. Blain
Page Four CEO 77-119
July 21, 1977


of Voting Conflict (CE Form 4), or (2) he may abstain from voting on the
matter.

Respectfully submitted,

THE COMMISSION ON ETHICS





Chaiv n




awrlnce A. Gonzalez v w
Executive Director


BJ/LAG/jj


I




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