CAO 01-02 Conflict of Interest
.1
CITY OF MIAMI BEACH
Office of the City Attorney
Memorandum
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To: Mrs. Joy Malakoff, Chairperson Date: March 7, 2001
Board of Adjustment
From: ~urraYH.DubbA\\' ~1~1~ C.A.O.#OI-02
CIty Attorney I \,lJ\ ~ \lJ'^I
Gary M. Held C2 _ .,~
First Assistant City Attorney 6 ~
Subject: Opinion on Alleged Conflict of Interest
QUESTION:
Whether a conflict of interest requiring abstention from voting under
Section 112.3143, Florida Statutes, existed when (a) the applicant
seeking variances from the Board of Adjustment involved as a principal
Craig Robins, who is also on the local advisory board of the bank
which employs you, and (b) the bank had issued a land loan for the
purchase of the property six months prior to the hearing on the
application, but you were unaware of such loan?
ANSWER:
(a) Section 112.3143, Florida Statutes, did not require you to abstain
from voting as Mr. Robins' position on the bank's local advisory board
did not create a conflict of interest.
(b) Section 112.3143, Florida Statutes, did not require you to abstain
from voting as a conflict of interest did not exist where you were
unaware of the issuance of a loan for the purchase of the property,
which was the subject property at the variance hearing. As a separate
element, we have seen no evidence that the variances effected a special
private gain or loss by the bank.
FACTUAL BACKGROUND:
By letter dated February 22, 2001 you requested an opinion from this office
confirming an earlier verbal opinion that Gary Held had given you concerning a matter
before the Board of Adjustment, and clarification of that opinion in light of additional
information you had discovered. This opinion is based upon the facts as provided to us,
which are set forth hereafter. .
~
City Attorney Opinion #01-02
March 7, 2001
Page 2
Prior to the December 1,2000 meeting of the Board of Adjustment you inquired
of Gary Held as to whether you had a conflict of interest on the item scheduled before the
Board that date called Aqua, involving two variances (three additional variances were later
added, totaling the five enumerated in detail below): one to allow certain apartments below
the minimum square footage allowed in the code, and a second to allow parking spaces, in
a right-of-way, smaller than allowed by code. Your inquiry involved the principal of Aqua,
Craig Robins, who also happened to be a member of the local Board of Directors of Colonial
Bank, which you serve as a Senior Vice President, Private Banking, and Marketing Director
of the South Florida Region. At the time you were unaware of any borrower/lender
relationship between the project and Colonial Bank. You have informed us that the local
board is an advisory board, and the official Board of Directors of Colonial Bank is located
at the Bank's headquarters in Alabama.
In January, 2000, by Ordinance 2000-3230A, the City Commission adopted a new
set of development regulations for the old St. Francis Hospital site on which the Aqua project
is proposed. Approval of these regulations essentially authorized the property owner to
design and seek approvals and permits for a project such as Aqua. In recognition of these
new regulations, the principals of Aqua completed their purchase of the property in July,
2000, at which time the bank issued its land loan. The variances for the project considered
at the December 1, 2000 and February 2, 2001 hearings involved (1) a reduction in the
minimum required apartment unit size, to permit 12 guest or maids quarters, (2) a reduction
in the allowed width of parking within a right~of-way, to permit smaller parking spaces
within the right-of-way, (3) a variance to permit "standing seam metal roofs" for 18 of 46
townhouse units, (4) a variance to exceed by 500 sq. ft. the habitable space on the roofof9
of 46 townhouses, in order to construct 900 sq. ft. of habitable space on such roofs, and (5)
a variance to waive three feet of the minimum six feet front setback to allow second story
bay windows in 9 of 46 townhouse units to project into the required setback. There will be
180 residential dwelling units in the Aqua project.
Variance no. (2) was approved at the December, 2000 Board of Adjustment
meeting, but variance no. (1) was continued to the January, 2001 meeting. The additional
variance requests were also scheduled for hearing at the January Board of Adjustment
meeting, but all were continued and decided at the February Board of Adjustment meeting.
Following that meeting you learned that Colonial Bank had issued a loan for the purchase
of the Aqua property "in July, 2000.
...
City Attorney Opinion #01-02
March 7, 2001
Page 3
DISCUSSION:
Section 112.3143, Florida Statutes provides that no municipal officer shall vote
on a matter "which would inure to his or her special private gain or loss" or "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 the parent organization or subsidiary of a corporate principal by which he or she
is retained, . . ."
In accordance with section 112.3143, this shall confirm to you that merely because
Mr. Robins was also associated with the Bank, but was not your employer, nor a principal
or corporate principal by which you were retained, these facts involving an independent
project of Mr. Robins did not require you to abstain from voting on the variances, under
Section 112.3143, Florida Statutes. See Florida Commission on Ethics ("COE") opinion 86-
68, where a planning board member was not required to abstain from voting on an
application involving a member of the Chamber's board of governors, where no special
private gain or loss resulted to the planning board member or to the Chamber; the fact that
the applicant served on the board of the organization that employed the planning board
member did not preclude the planning board member from voting on the application.
With respect to the loan that Colonial Bank had issued in July, 2000 to Mr. Robins
for the purchase of the property involved in the Aqua project, Section 112.3143, Florida
Statutes, quoted above, provides that no municipal officer shall vote on a matter "which he
or she knows would inure to the special private gain or loss of any principal." (emphasis
added). Thus, it is not just knowledge of a loan, but whether a vote on the project would
result in a special private gain or loss to your employer, the bank. As stated by the
Commission on Ethics:
By prohibiting an official from 'knowingly' voting on matters which inure to
the special private gain of his employer, the law recognizes that a public
official, like any other employee, may not be aware of all of his employer's
interests and should not be held accountable for matters he is not in a position
to know.
COE 85-46.
Since you were not aware of the loan, you could not have had any knowledge of
the need to evaluate whether a vote on the variances would inure to the special private gain
. .
City Attorney Opinion #01-02
March 7, 200 I
Page 4
or loss ofthe bank. In the absence of knowledge ofthe loan, you could not have knowledge
of any possible private gain or loss to the Bank, and in the absence of such knowledge, the
statute would not prohibit you from voting.
Moreover, it is questionable whether approval of the variances would constitute
a special private gain or loss to the bank such that even if you had knowledge of the loan you
would not have been prevented from voting on the matter. In COE 91-48, the Commission
examined the relationship between a town council member and an applicant for certain
development approvals, including variances. The council member had a mortgage
relationship with the applicant, though on another property. The question that the
Commission examined was whether the council member, or his principal, would stand to
gain or lose as a direct result of the outcome of the decisions the council was making. The
Commission concluded in that matter that there was no voting conflict.
In COE 85-46, the Commission on Ethics considered whether a city commissioner,
who was employed by a developer, which held a mortgage on property included in an
annexation petition presented to the Commission, was precluded from voting on the
annexation petition. The Commission, after noting that the developer had not petitioned for
annexation, nor owned the property being annexed, concluded:
In our view, the developer does not stand to gain or lose as a direct
result of the annexation, either in terms of the value of its adjacent
property or in terms of its security interest in the subject property.
Under the circumstances presented, whether the developer stands to
gain or lose . . . from its mortgage interest ultimately will be the result
of many factors, with annexation of the property not even being the
predominant factor. In essence, we conclude that any gain or loss
derived by the developer from the annexation would be too remote and
speculative for us to conclude that annexation 'inures to the special
gain' of the Commissioner's employer.
COE 85-46.
In this matter involving Aqua, the variances that Mr. Robins sought were, in the
view ofthe Planning staff, minor design issues whose impact on the project was limited. As
to the mortgage interest held by the bank, there is no evidence before us indicating that the
City Attorney Opinion #01-02
March 7, 2001
Page 5
grant or denial of any of the requests would result in a special private gain or loss by the
bank.
This opinion is limited to the above description of facts.
Please note that, in the future, if you wish to abstain from voting because of any
appearance of a conflict, even though a legal conflict may not actually exist, you may abstain
from voting under Section 286.0 12, Florida Statutes. In such cases, that section requires you
to comply with the disclosure requirements of section 112.3143, Florida Statutes.
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