Legal Report, January 2014

General Counsel, Trela J. White

1. Palm Beach County Commission on Ethics:  Recent Advisory Opinions

RQO 13-023:  The Palm Beach County Commission on Ethics (the “COE”) reviewed whether a city employee could remain as an unpaid director and managing member of a non-profit corporation where the city wished to enter into a 30-year lease agreement with a wholly-owned subsidiary of that non-profit corporation.  The non-profit created the subsidiary in order to enter into the lease with the city.  The COE held that the Palm Beach County Code of Ethics prohibited the city employee from continuing to serve in her voluntary position as a director and managing member of the non-profit.  The COE stated that city employees and officials are prohibited from using their official position to give a not for profit organization (of which the employee or official is an officer or director) a special financial benefit not shared with similarly situated members of the general public.  Here, the city employee’s job duties enabled her to make recommendations about the lease agreement to city officials.  Therefore, the Executive Director of the COE has concluded that the city employee should resign her voluntary positions with the non-profit before the city entered into a lease agreement with the subsidiary.  No final action has been taken by the COE.

2. Town of Gulf Stream et al vs. Palm Beach County, and Sharon R. Bock, as Clerk and Comptroller of Palm Beach County, Intervenor
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 case has been tentatively set for trial.  There is a jury trial scheduled ahead of this trial.  However, if the jury trial settles, then the funding lawsuit will begin on January 27, 2014 and will last for three days.

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.