John Rehill•Saturday, Apr 01, 2017
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 There are also elements of the submitted premises that might be considered incomplete or outdated, and Mantanes hopes that the Commission on Ethics will see things her way in this instance.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, TBT has 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.