Commissioners talk of benefits of that extra oversight
The Florida Statutes prohibit a Sarasota County commissioner from serving as a voting member of any nonprofit board that essentially “sells” services to the county, including those that provide health and human services programs, the Office of the County Attorney has determined.
That opinion came in response to a suggestion that Commissioner Michael Moran brought up during the Oct. 12 County Commission meeting, County attorney Frederick J. “Rick” Elbrecht noted in an Oct. 19 memo.
Section 112.313(3) of the Florida Statutes “prohibits a public officer from acting in an official capacity to purchase services for his or her agency from a business entity of which he or she is a director and conversely prohibits a public officer from acting in a private capacity to sell any services to the County,” the memo explained. “The Florida Commission on Ethics has previously advised that one is ‘acting in a private capacity’ to sell services when a business entity of which he is an officer or director sells its services, and that one is ‘acting in an official capacity’ when the [commission] acts collegially to purchase services, regardless of whether the public officer abstains from voting on the matter,” the memo pointed out.
That applies even when the public officer is not compensated for service on a board, the memo indicated.
Nonetheless, as Moran explained the situation to his colleagues during their regular meeting on Oct. 26, a commissioner could serve as a non-voting liaison to a board of a health and human services provider.
As a result, Moran that day won the unanimous support of the other commissioners to allow the naming of a commissioner to the board of directors of any provider of health and human services that receives more than $500,000 per year from the county.
The motion, a copy of which he provided to each of his colleagues, said, “Provider agrees to add a Sarasota County liaison member to the Board of Directors of Provider within 90 days of contract execution. Any such liaison member shall serve ex -officio as a non-voting member of the Board of Directors without additional compensation and shall not be deemed in any respect to act on behalf of Provider but shall be provided notice and right to participate in any Board of Directors meetings. Such liaison shall be appointed and removed by a majority vote of the Sarasota County Commission. No communication, fact or other matter shared with or made available to the liaison member shall be deemed a substitute for otherwise communicating with the Sarasota County Commission pursuant to ‘Sarasota County Government Human Service Contract’ in any respect.”
The commissioners will decide during their December retreat whether they wish to make such appointments, they agreed. The retreat includes a period when they go through the list of boards on which commissioners traditionally serve; they seek to find volunteers among themselves for the positions.
During the Oct. 12 discussion, Moran suggested the additional oversight because of the high amounts of money the county turns over to nonprofit organizations each year for specific programs.
At that time, County Attorney Elbrecht cautioned that he was not certain state law would allow a commissioner to be a formal member of boards of those organizations. As a result, Elbrecht had requested more time to research the issue.
“It’s completely optional,” Moran stressed on Oct. 26, referring to the naming of commissioners to the boards that would be affected. And even though a commissioner would be a non-voting member of those boards, he pointed out, the commissioner “would have all the other rights and privileges” of the board members of those nonprofits, including access to documents.
When Commission Chair Alan Maio suggested that County Commission consensus on the point would be sufficient, Elbrecht asked for a formal motion.
“Aren’t these meetings open to the general public anyway?” Commissioner Nancy Detert asked.
“I don’t know that,” Moran replied.
Even if they are, Elbrecht explained, he is uncertain whether any public notice is provided for those meetings. In other words, he said, having a commissioner serving in a non-voting role would ensure that the County Commission received information about the scheduling of those nonprofit board sessions.
If the meetings are open to the public, Detert replied, “This is redundant.” Any commissioner who desired to do so could attend the sessions, she added.
Then Elbrecht pointed out that, even as a non-voting member of such a board, a county commissioner could participate in the nonprofit board’s discussion.
At that point, Detert reprised a comment she made on Oct. 12: “Each of us serve on about eight to 10 committees on top of our board duties.” If her colleagues were to add more such positions, she said, “Then we’d be spending more time serving on boards than we are serving as county commissioners. … That’s my only concern.”
“I just think that sitting in the meeting as a board member, non-voting or not, gives you a much deeper, clearer, comprehensive view of what’s happening,” Maio added during the Oct. 26 discussion.
Commissioner Ron Cutsinger, who seconded Moran’s motion, noted that in just his first year on the commission, he had “witnessed … how helpful and positive it is to be on these boards and be aware of the work [the organizations are] doing …”
“This is a good thing,” he added of Moran’s motion, given the amount of taxpayer money involved.
When Maio called for the vote, Detert did not say, “No.”
The audit provision
On Oct. 12, Moran also talked about making it clear to the organizations receiving more than $500,000 a year that the County Commission is able to request an audit of their finances. Maio brought that up again on Oct. 26.
“That’s always in our contracts,” he said, along with “the ability to stop funding [of programs, if problems turn up].”
Elbrecht’s Oct. 19 memo also referred to that Oct. 12 discussion, noting that the commissioners had asked that the Office of the County Attorney “provide clarification and information relating to termination and auditing provisions of the County’s Department of Health and Human Services’ Human Services Contracts … The Board wanted to ensure that there is a termination for convenience clause that does not exceed 30 days in the agreement …”
The memo noted that the language in such contracts already allows the county to terminate the agreements “for any reason with a 30-calendar day’s written notice.”
Further, the memo continued, “[T]he current agreement template” says all not-for profit organizations that receive more than $50,000 in county funds must, within 150 days after the end of their fiscal years, “provide the County with a copy of an audit (versus a compilation or review) performed under the direction of an independent Certified Public Accountant. That audit must meet County standards and is subject to County approval; as such, the County may request additional financial information or even order (another) audit at the [nonprofit organization’s] expense,” the memo pointed out.