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Agenda 09/15/2009 Item #16K15 Agenda Item No. 16K15 September 15, 2009 Page 1 of 4 EXECUTIVE SUMMARY Recommendation that the Board of County Commissioners reviews and approves the County Attorney's recommendation to waive any potential ethics conflict for a CRA Advisory Board member based on Ch. 112, Florida Statutes. OBJECTIVE: For the Board of County Commissioners to review and approve the County Attorney's recommendation to waive any potential ethics conflict for CRA Advisory Board (CRAAB) member Edward Olesky. CONSIDERATIONS: A question by staff relating to a potential ethics violation was presented to the County Attorney. The following is a summary of events with my recommendation. In summary, although there may be a technical ethics violation, based on the specific facts of this conflict, the conflict may be waived by two-thirds vote of the BCC. Factual Summary 1. At all relevant times, Mr. Olesky was and still is the Vice President and Treasurer of A.M.P. Electric of Collier County, Inc. 2. Mr. Olesky was appointed to the Immokalee CRAAB on February 10, 2009. 3. On April 21, 2009, B&B Cash Groceries (Handy Stores) applied for a fa9ade grant for six properties in Immokalee. The CRAAB, with Mr. Olesky in attendance, unanimously recommended approval at a regular meeting on May 20,2009, which grant was approved by the Community Redevelopment Agency Board on June 9,2009. 4. On July 29, 2009, Mr. Olesky spoke with CRA staff and advised them that Eddie Sanchez, President of A.M.P. Electric of Collier County, Inc., had bid on the work generated by the Handy Store grants and was awarded the contract. 5. Penny Phillippi, the Immokalee CRA Director met with me on August 4, 2009, presenting a packet of materials for my review. Following our discussions, I advised Ms. Phillippi not to release any grant funding for the Handy Store award to A.M.P. Electric of Collier County, Inc. I then met with Leo Ochs, the Deputy County Manager, along with Mike Sheffield. The three of us then met with Mr. Olesky on AU!:,.ust 11 th to discuss the matter. 6. During this meeting, which was held at the County Attorney Office, Mr. Olesky advised us that although he is an officer of A.M.P. Electric of Collier County, Inc., he is not actively engaged in the day-to-day operation of the business. He stated that when Mr. Sanchez advised him that he was awarded the contract for Handy Stores, he immediately spoke to Ms. Phillippi as he realized that this was a potential conflict. - Agenda Item No. 16K15 September 15, 2009 Page 2 of 4 7. As an advisory board member, Mr. Olesky is considered a public officer and subject to the restrictions found in Chapter 112, Fla. Stat., Code of Ethics for Public Officers and Employees. Florida Statutes Section 112.313(3), Fla. Stat., Doing business with one's agency, provides in relevant part: "Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she is serving as an officer or employee ofthat political subdivision." Section 112.313(7)( a), Fla. Stat., Conflicting employment or contractual relationship, provides in relevant part: "No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties." Discussion It appears that both of these statutory provisions would arguably be violated based on A.M.P. Electric of Collier County, Inc., bidding on work to be paid for by a CRA grant. A.M.P. Electric's contract with Collier County would create a status conflict which is different from a voting conflict. It is based strictly on Mr. Olesky's status as an advisory board member. As a status conflict, the BCC may waive this strict violation. At the time of the CRAAB vote, taken on May 20, 2009, no voting conflict existed for Mr. Olesky. The CRAAB voted unanimously to approve the grant award and put the work out for bid. It was not until Mr. Olesky's company was poised to win the award that a potential status conflict existed. Based on my review, I am of the belief that Mr. Olesky was not aware that his company was bidding on a contract to be funded with CRA grant funding; that when Mr. Olesky became aware of this, he immediately and voluntarily advised Ms. Phillippi of the situation; and that Mr. Olesky's prompt actions resulted in the grant moneys being withheld, resulting in no monetary benefit to A.M.P. Electric of Collier County, Inc. Although there may have been a technical violation of Florida Statute and the County's Ethics Ordinance, any such violation was unintentional. Accordingly, since it was Mr. Olesky himself who alerted us to this issue, it is my recommendation that the Board waive any ethics law violation that may have occurred. - Agenda Item No. 16K15 September 15, 2009 Page 3 of 4 I also recommend that A.M.P. Electric of ColliefCounty, Inc. not seek to do business with the CRAAB in Immokalee. Further, Mr. Olesky and his company should avoid entering into any contract with Collier County prior to reviewing any potential status conflict with the County Attorney Office. The County Attorney Office has reviewed other status conflicts in the past and recommended against seeking a waiver from the BCC. However in this case, a waiver may be appropriate as Mr. Olesky voluntarily self-reported the potential conflict, and the work was stopped prior to any grants funds being paid to A.M.P. Electric of Collier County, Inc. FISCAL IMPACT: None. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERATIONS: This is a non-quasi judicial matter and as such ex parte disclosure is not required. This item requires at least two-thirds majority support. - JAK RECOMMENDATION: That the Board of County Commissioners waives any potential ethics conflict for Immokalee CRA Advisory Board member Edward Olesky based on Ch. 112, Florida Statutes. Prepared by: Jeffrey A. Klatzkow, County Attorney and Colleen M. Greene, Assistant County Attorney L at;'" 1 VL 1 Agenda Item No. 16K15 September 15, 2009 Page 4 of 4 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 16K15 Meeting Date: Recommendation that the Board of County Commissioners reviews and approves the County Attorneys recommendation to waive any potential ethics conflict for a CRA Advisory Board member based on Ch. 112, Florida Statutes. 9/15/2009 9:00:00 AM Prepared By Jeff Klatzkow County Attorney Date County Attorney County Attorney Office 8/20/200910:11 :23 AM Approved By Colleen Greene Assistant County Attorner Date County Attorney County Attorney Office 8/21/20099:24 AM Approved By Jeff Klatzkow County Attorney Date County Attorney County Attorney Office 8/28/2009 1 :31 PM Approved By OMB Coordinator OMB Coordinator Date County Manager's Office Office of Management & Budget 9/2/20099:56 AM Approved By Laura Davisson Management & Budget Analyst Date County Manager's Office Office of Management & Budget 9/2/2009 11 :07 AM Approved By Leo E. Ochs, Jr. Deputy County Manager Date Board of County County Manager's Office Commissioners 9/2/20096:30 PM '-1 II~ \ ... ..... ~ -. ....... - ..... , - "" - .... ..... ..... \ - - ... ' - ~ - - - - - -- ---