Legal Report, April 2014

General Counsel, Trela J. White

1. Palm Beach County Commission on Ethics:  Recent Advisory Opinions
RQO 14-006:  The Palm Beach County Commission on Ethics (the “COE”) reviewed whether a municipal elected official was prohibited from participating and voting on an ordinance which affected the development where the elected official lived.  The COE stated that elected officials are prohibited from using their official position to give themselves a special financial benefit not shared with similarly situated members of the general public.  In evaluating conflicts of interest under the local Palm Beach County Code of Ethics, the COE considers: (1) the number of persons who stand to gain or lose from a decision; and (2) whether the gain or loss is remote or speculative.  Where the class of persons who stand to gain from a decision is small, it is more likely that the official will have a conflict.  The general line drawn by the Florida Commission on Ethics is whether the official’s interest in the matter involves 1% or less of the class.  Here, the affected class contains approximately 265 home sites.  The official would be prohibited from voting on the ordinance if the facts and circumstances showed that the ordinance would provide a unique benefit to the official.  However, based upon the facts presented in this case, the economic benefit or loss caused by the ordinance affects a class large enough so as to remove any prohibited individual financial benefit to the official.  Therefore, the official was not prohibited from participating and voting on the ordinance even though he owned property in the affected area.

2. Town of Gulf Stream et al vs. Palm Beach County, and Sharon R. Bock, as Clerk and Comptroller of Palm Beach County, Interveno
Case No. 502011CA017953XXXXMB.  Inspector General Funding Lawsuit.
Fourteen municipalities sued Palm Beach County challenging the method of funding for the Inspector General Program (the “OIG Program”).  The current funding method authorizes the Board of County Commissioners to set an amount the municipalities must pay for the OIG Program, and to bill municipalities for that amount.  The municipalities contend that the current funding method is an unlawful tax and invades municipal home rule budgetary authority.  The trial in this case was set to begin on March 3, 2014.  The case did not go to trial due to an unexpected illness in the family of the Municipalities’ lead litigation attorney.  On March 19, 2014, the Trial Court issued an order resetting the case for trial during the trial docket commencing on August 4, 2014, and ending on August 29, 2014.  A specific trial date will be assigned on July 25, 2014.

3. City of Orlando and Lasercraft, Inc. vs. Michael Udowychenko, etc. 
Case Number SC12-1471.  Red Light Cameras.
This case was reported on at the July 2012 League meeting and the details are contained in the July Legal Update, which is located on the League’s website.  The Florida Supreme Court heard oral argument on November 7, 2013.  No further action has been taken by the Court at this time.

4. South Florida Water Management District v. RLI Live Oak LLC
Case Number SC12-2336.  New Heightened Evidentiary Burden To Enforce Regulatory Programs Through Monetary Penalties.
This case was reported on at the January 2013 League meeting and the details are contained in the January 2013 Legal Update, which is located on the League’s website.  On March 7, 2013, the Florida Supreme Court accepted jurisdiction of the case.  All briefs have been filed.  The Florida Department of Environmental Protection and Office of the Attorney General were permitted to file amicus curiae briefs in support of the South Florida Water Management District.  On October 24, 2013, the Court denied RLI Live Oak LLC’s motion to file responses to the amicus briefs.  The South Florida Water Management District’s request for oral argument has been denied.  No further action has been taken by the Court at this time.  This case is important to municipalities because it involves what standard must be used in imposing regulatory penalties on code violators.  The South Florida Water Management District argues they should only have to prove a regulatory violation by the traditional “preponderance of the evidence” standard.  The landowners involved in the case argue that a regulatory violation must be proven by the higher “clear and convincing evidence” standard before monetary penalties may be imposed.