Citizen Asks Ethics Commission to Revisit Potential Conflict of Interest Between Commissioner and Son-in-Law
Posted
John Rehill
BRADENTON – Manatee County resident Agatha Mantanes recently filed a complaint
with the Florida Commission on Ethics alleging that Manatee County
Commissioner Carol Whitmore was in conflict when she voted to approve a
720-unit apartment complex in north Manatee County in early March.
Whitmore’s son-in-law, Scott Rudacille, was an attorney representing the
applicant.
More than a dozen times, Whitmore has voted on land use issues for which Rudacille represented the
applicant on a request presented to the Manatee County Commission for
approval. Mantanes cited an October 1, 2015, 6-1 decision by the County
Commission to approve a rezoning request from developer Carlos Beruff
for a General Development Plan (GDP) for 55.19 acres on the northeast
corner of Mulholland Road and Fort Hamer Road.
Rudacille is a member of the law firm Blalock Walters P.A. Both he
and the firm say that he does not have profit-sharing privileges.
Rudacille says he has been a principal attorney with Blalock Walters
since he joined the firm, and that his position is rewarded by salary.
Mantanes
claims Rudacille used to be an associate attorney but, having been
promoted from associate to principal, would have to disclose to the
commission the conflict of interest he and Whitmore have, therefore
compelling Commissioner Whitmore to recuse herself from voting on the
Beruff application.
In this case, as well as several others, any criticism directed to
the conflict Whitmore and Rudacille potentially share is countered by
Manatee County Attorney Sarah Schenk siding with Whitmore. In each case,
Schenk says, "She (Whitmore) would not be allowed to sustain from
voting," citing a May 2011 opinion from the Commission on Ethics: the
state department Mantanes filed her complaint with. That opinion can be
found here.
Though it is not uncommon for public officials to
recuse themselves "in an abundance of caution" even when there is a
vague potential conflict of interest, state law actually requires them
to cast a vote unless a conflict specified by statute exists. The 2011
opinion cited was just that, however, an opinion, not case law.
As such, it does not set a precedent for any other case or instance.
There are also elements of the submitted premises that might be
considered incomplete or outdated, and Mantanes hopes that the
Commission on Ethics will see things her way in this instance.
On three occasions, TBThas cited this jeremiad, and each
time Whitmore has said she is not required to recuse herself from
voting; seeking and getting confirmation from both Schenk and County
Attorney Mickey Palmer. At question, is whether Rudacille, being
employed by a firm that has been retained by an applicant going before
the BOCC, creates a conflict for his mother-in-law voting on it.
Florida Statute 112.312 in paragraph (8) states: "Conflict" or "conflict of interest" means a situation in which regard
for a private interest tends to lead to disregard of a public duty or
interest.
The next section, 112.313, deals
with specifics: doing business with one's agency, unauthorized
compensation and nepotism. The 2011 opinion stated that because the law
firm was not being retained by the BOCC but rather a private company
coming before it, the first portion was moot. It then said that because the
unauthorized compensation paragraph specified only spouses or minor
children, it too was moot.
Finally, the opinion concedes that a son-in-law would come
under the umbrella of the nepotism clause, however, because it only
specifies family members who are being considered for appointment,
promotion or advancement in or to a position in the agency in which that
official server exercises jurisdiction or control over, his position in
a private law firm and not a governmental agency would not be
applicable.
The opinion also tackled the question
as to whether or not a conflict of interest would exist if Rudacille
were a shareholder partner in the firm. This would expand the original
question to include whether any of Whitmore's decisions "inured the
special gain or loss" of herself or a family member. The opinion found
that because the entity hiring the firm was billed at an hourly or flat
rate for the work prepared and not directly compensated in any way based
on the outcome of the government agency's decision, this element also
would fail to present a conflict.
The obvious
counterargument to nearly all of these questions is that if Rudacille,
being the son-in-law of a commissioner, is seen as having more favorable
chances in going before that board, he could be more likely to be hired
by any firm that would see themselves as more likely to then be
retained by enterprises who regularly go before that government agency.
Because
land use decisions can have profound financial implications for the
land owner/developer, there is considerable value to be attached to such
decisions. Clearly, a commissioner might have a conflict if their
vote(s) could potentially impact things like a family member's
employability, chances for promotion, etc.–all of which could be considered a form of inuring special gain, which takes us back to
Florida Statute 112.312 (8): "Conflict" or "conflict of
interest" means a situation in which regard for a private interest tends
to lead to disregard of a public duty or interest.
Mantanes
says the Ethics Commission should rule that there is an obvious
conflict and that Whitmore should be required to recuse herself from
such votes. Whitmore did not return requests for comment.
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