Ethics Commission opinion sought before Sarasota County Commission formally appoints member to SANCA board

In meantime, Commissioner Maio to attend SANCA board meetings and report back to his colleagues

Rowing teams compete in a 2014 event at Nathan Benderson Park. File photo

An attorney with the Florida Commission on Ethics has indicated the potential for conflict-of-interest situations regarding the appointment of a Sarasota County commissioner to the Board of Directors of the Suncoast Aquatic Nature Center Associates (SANCA).

Therefore, the commission has asked the Office of the County Attorney to seek a formal opinion from the Ethics Commission, with hope — members indicated — that a commissioner will be able to serve as a voting member of the SANCA board

In the meantime, as directed in a Sept. 10 motion made by Commissioner Nancy Detert, Commissioner Alan Maio will attend the SANCA board meetings as an observer and then report on SANCA action to the County Commission.

In July, Maio proposed the idea of having a commissioner formally added to the SANCA board, likening such service to the representation of the commission on other boards, such as those of the Economic Development Corp. of Sarasota County (EDC) and Visit Sarasota County (VSC).

More research needed to be undertaken by the Office of the County Attorney, Maio said then, before the formal appointment could take place.

A 501(c)(3) nonprofit, SANCA manages events at Nathan Benderson Park on behalf of the county, which owns the park.

When Maio brought up the issue again last week, he pointed out that the most recent agreement between the commission and SANCA calls for a county commissioner to be a SANCA board member. (County Attorney Frederick “Rick” Elbrecht told the commissioners that the SANCA board has yet to execute that agreement.)

These are the members of the SANCA board. Image courtesy Sarasota County

Assistant County Administrator Brad Johnson and Nicole Rissler, director of the county’s Parks, Recreation and Natural Resources Department, both attend the SANCA board meetings, Maio continued. However, he added, he feels it is important for the public “to see a commissioner sitting there.”

“I’m all for it, too,” Detert responded. “When I first got elected two years ago,” she continued, “I was really shocked that we didn’t have a board member on that [SANCA] board.”

At that time, she added, she was told that such representation was not possible because of the funding the county provides SANCA.

Yet, Detert said, “I think we’ve had kind of a bumpy road there with Benderson Park.”

Members of the public long have criticized the County Commission for its continued funding of SANCA. A nonprofit foundation established years ago to raise money for Benderson Park amenities has not been as successful as initially hoped, SANCA representatives have acknowledged to the commissioners.

Having a commissioner on the SANCA board, Detert pointed out on Sept. 10, would allow all the commissioners to “get as much information as we can” about the actions of the SANCA board. The two boards, she said, need “to be able to work together in a smoother way.”

“I am so in support of that, I can’t begin to tell you,” Commissioner Michael Moran responded. “I’ve railed on this in the past on other issues.”

Moran stressed the need of an “elected official representing the taxpayer” on boards.

Rissler and Johnson do “a fantastic job” of providing the commissioners information about the SANCA board’s decisions, he continued. Still, they are not elected officials, he emphasized.

“I agree,” Commissioner Christian Ziegler said. “If we’re giving dollars, we need to have a voice.”

A report on audits of SANCA’s finances for the 2017 and 2018 fiscal years — completed early this year by the St. Petersburg firm Gregory, Sharer & Stuart — said the nonprofit “receives a substantial portion of its support directly from local government agencies. Continuation of [its] program services is dependent upon the continued support of these agencies.”

The county’s 2020 fiscal year budget includes $1,189,000 for SANCA, Rissler told the commissioners in May. For the current year, the commission gave SANCA an extra $858,353, on top of $254,000 for maintenance expenses at Benderson Park and $50,000 for administrative costs.

This financial detail is included in the audit report for SANCA for the 2017 and 2018 fiscal years. Image courtesy Sarasota County

The ethics concerns

After commissioners responded to Maio during his Sept. 10 board report, County Attorney Elbrecht brought up the Ethics Commission issue. He explained that it arises out of the language in Florida Statute 112.313(3), “which is a prohibition against doing business with your own agency.”

In a Sept. 9 memo to the board, Elbrecht wrote, “Unlike the provisions relating to conflicting employment and contractual relationships, Section 112.313(3) [of the Florida Statutes] does not depend on compensation or consideration and is applicable to unpaid directors. If a [commissioner] is appointed to serve on the SANCA Board of Directors, the [commissioner] may be considered ‘doing business with one’s agency’ because Sarasota County has a license and operating agreement with SANCA for real property owned by the County …”

The Ethics Commission, Elbrecht continued, sees a commissioner serving on the SANCA board in a different light than it sees a commissioner’s service on other boards, such as those Maio had mentioned.

For example, Elbrecht said, the SANCA contract with the county has a dispute resolution [clause].” That was one concern of the attorney at the Ethics Commission with whom he spoke, Elbrecht added.

“We think there is a strong argument that there is a unity of purpose between the County Commission and SANCA,” Elbrecht said, and, therefore, that the county’s situation meets the state’s test for representation on boards. The Ethics Commission attorney disagreed, Elbrecht added.

(In his Sept. 9 memo, Elbrecht explained that the Ethics Commission attorney with whom he spoke is “assigned to assist with these types of matters.”)

This is a section of the Florida Statutes to which the Office of the County Attorney memo referred. Image courtesy Sarasota County

Regarding the “unity of purpose” argument, the Sept. 9 memo pointed out that the county’s formal agreements with SANCA and SANCA’s Articles of Incorporation “refer to an exclusive purpose of SANCA being to provide funding and managerial support for the County’s park.”

A county commissioner would be appointed to the SANCA board solely because of the individual’s position as a commissioner, the memo added.

“We do have the option of seeking a formal opinion … which would take several months,” Elbrecht pointed out on Sept. 10.

Responding to Chair Charles Hines’ question about the expense of requesting that opinion, Elbrecht replied that he was unaware of any.

A chart provides details about the SANCA budget request made to the County Commission on June 20, 2018. The commission declined to make the additional three-year commitment to SANCA. ‘TDT’ refers to the county Tourist Development Tax revenue. Image courtesy Sarasota County

When legislators write state ethics law, Detert said, “Not everybody has a Benderson Park. … I can see you don’t want to be in bed with one of your vendors or one of your providers. … If we were asking to be on [Benderson Development Co.’s] board, that’s a different ethics thing to me than being on the SANCA board. (Benderson Park is named for the founder of Benderson Development Co.) “I just think that we have a rarity in our community … that isn’t addressed statewide.”

She added that she believes the Ethics Commission will agree that the SANCA situation meets the necessary Statute test.

Hines suggested designating Maio an attendee at the SANCA board meetings until such time as the Ethics Commission provides its opinion. “Then we’d have direct taxpayer representation there [to tell us if we have] a problem or an issue.”

“I’d be happy to do that if it’s the pleasure of the board, since I’m the one that instigated this whole discussion,” Maio said.

“We probably give [the EDC and VSC] much … more access to taxpayer money than what we give every year to SANCA,” Maio added. That was why the Ethics Commission concern was confusing to him, he said.

“We need this cleared up,” Hines responded.

After Detert made her motion, Moran seconded it, and it passed unanimously.

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