Clann PanrnvcToN Hanr Lannv BoNn & SracKHousn

ATTOSNEYS AT LAW

P6nsacola
Bruce D. Porlington Boord Certified Conslruction Lowyer Direcl (850) 432-1399

Destin r Tallahassee

bporlington@cphlow.com

September 26,2012

Via Hand Delivery The Honoroble Ashton Hoyword City of Pensocolq 7th Floor, City Htlll 222W. Mqin St. Pensocolo, FL 325Q2
Re:

Opinion Regcrding Suggested Conflict of Inlerest

Deor Moyor Hoyword:

You hove osked me to review the suggestion by members of the City Council thot leiting conlrocts to two firms creste o prohibited conflict of interest for you, specificolly Roods, lnc. of NWF, ond Hewes ond Compony, LLC under $ I 12.3'13(Z}{o), Flo. Stot. For the reosons set forth herein, I conclude thot there is no prohibited conflict of interest. As we understond
t.

il, the operaiive focts are ss follows:

In November

of 2OO4, you were an initisl member of o Florido Limited Liobility

Compony, Redfish Horbor, LLC. This compsny wqs sdministrotively dissolved on September 24,2Q10, for foiling to file on onnuol report. However, o technicolly dissolved Limited Liobility Compony "ccniinues its existence bul moy not cqrry on ony business except thot oppropriote to wind up ond liquidate its business ond offoirs," $ 608.4431, Flo. Stot, (2012).
2.

Among the other members of Redfish Hqrbor LLC listed on the Floridq Secreiory of Siate's corporoie informolion website, ore Mqtlhew Poir, W. Allon Bell, ond Cody Rqwson. You hove indicoted thot since the l<rst onnuol report, ond lost updote of the informqtion on the Secretory of Stote's website in 2009, Mr. Bell is no longer o member of Redfish Horbor. According to the Escombio County Clerk of Court's website, on Februcry 15, 2005, Redfish Harbor, LLC, acquired certoin property on Innerority Road in Escombio County which is still iitled in the nome of thot entity. There is q mortgoge lien on lhol properfy currently held by Americon Fidelity Life Insuronce Compony, You
125 West Romono Slreet

J,

. Suite 800 o Pensccolcr. Florido 32502 P.O. Box 13010. Pensocolcr. Florido 32591-3010 Phone (850) 434-?200.. Fox [850] 432-7340
www.cpntow.com

The Honor:oble Ashton Hoywcrd Seplember 26,2012 Poge 2

hove verified to me thot this informotion is occurcte, qnd thot tlre poyment obligations reloting to the mortgoge ore currenl.
4.

Mr. Rowson is olso the principol of the controcting firm "Roods, lnc. of NWF" ("Roods, Inc.") which, omong other things, controcts with various public entities for rood ond underground utility conslruction from time to time. You do not own, ond never hove owned, ony interest in this eniity directly or indirectly. You hove never been employed by Rocds, Inc. Roods, Inc., hos been in existence since I999, ond wss not formed for the purpose of bidding on the proiect qt issue. Mr. Bell is o member, olong wilh olhers, in on entity, "Hewes ond Compony, LLC" ("Hewes"). Hewes is q construction firm which, omong other lhings, controcts wiih public entities from time lo time. You do nol own, ond never hove owned, ony interest in this entity directly or indirecfly. You hove never been employed by Hewes. Hewes has been in existence since 2008, qnd wqs not formed for the purpose of bidding on the proiecl qf issue.
Roods, Inc. ond Hewes eoch submitted the "lowest ond best responsible bid" for two seporcie competitively bid proiecfs. No issue hos been rcrised regording the responsiveness of either bid, or the responsibility of either bidder. There were other bidders for eoch proiecl. The proiects on which eoch entity bid were solicited for bids or requests for proposols pursuont to $ 3-3-2 of the City's Code of Ordinsnces ("Ciiy Code"). Redfish Horbor, LLC, is not involved in either of the proiecis ot issue, snd hos never directly or indirectly sought to contrqct or submitted ony bid for ony contrqct with the City of Pensocolo. Redfish Horbor, LLC, does not now own, nor l'ios it ever owned, ony interesl in Roods, lnc., or Hewes.

6.

7,

B.

9.

Neilher Roads, Inc., nor Hewes hcve ever owned or now own sny inlerest in Redfish Horbor, LLC. Neither Roods, lnc., nor Hewes is o moker, obligor or guorontor of the debt secured by the mortgcge on the property owned by Redfish Horbcr, LLC.
You hod no communicolion with Rowson or Roods, Inc., regording the proiect ot issue, nor did onyone communicote with Rcwson or Roods, lnc., on your beholf regording the proiect. You were unowore thct Rocds, Inc., wos even bidding on the proiect for which it wos the successful bidder. You hqd no communicotion with Bell or Hewes., regording ihe proiect ot issue, nor did onyone communicote with Bell or Hewes, on your beholf regording the proiecf. You were uncrwore lhot Hewes wqs even bidding on the proiect for which if wos

10.

I t.

the successful bidder.

12.

Eoch of the proiects ot issue exceed the thresholds where owcrrding the controcts ore within your discrelion qs provided in the City's Code of Ordinonces g 3-3-2

Cum PanrnlcroN HaRrLARny Boxu & $'racnHousE

The Honoroble Ashton Hoywcrrd September 26,2012 Poge 3

{"City Code"). In other words, eoch proiecf wos required to be solicited for bids or requests for proposal.
Members of the City Council have roised concerns obout whether or not your historicol business relotionship wifh Rqwson qnd Bell in on entity unreloted to Roods, lnc., ond Hewes violqte 0 I i 2.3 1 3{7)(o), Flo. Stot. For purposes of clority ond cnolysis, while the quototion below is <: full quototion of the pertinent sub-pcrogroph of the stotute, I hcrve divided it into two sub-parts:

No public officer or employee of on ogency shall hove or hold ony employmenl or controcluql relotionship with ony business entity or sny ogency which is subiect fo the regulotion of, or is doing business with, on ogency of which he or she is an officer or employee, excluding those orgonizations qnd their officers who, when octing in lheir officiol copocity, enter into or negotiote o colleclive borgcining contrqct wifh the stote or ony municipolity, county, or other political subdivision of the stote;

tl.]

l2.l nor sholl qn officer or employee of on ogency hove or hold ony employment or controctucrl relotionship thol will creqte o continuing or frequently recurring conflict between his or her privote interests qnd the performonce of his or her public duties or thot would impede the full ond foiihful dischcrge of his or her public duties.
With respect to the first port, only the initiol porlion of the clouse (before the words "excluding those orgonizotions") is pertinent. Bosed upon the fscts outlined above, you ore nol employed by, nor do you hove ony controclusl relotionship with either Roods, lnc., or Hewes. Therefore, by fhe ploin longucae of the stolute, there is no reqsonoble contention thot this clsuse
is

opplicoble to this situolion.

The second

port of the slsiute does nol drcrw definitive "lines" like ihe first port, but there ovsiloble from lhe opinions issued by the Florido Commission on Ethics on its mecning ond proper interpretotion. First, the Commission's odvisory opinions generally recognize thot the intervention of corporote entities (ond Limited Liobility Componies would not be treoted differently for this purpose) between the public body ond the individr.rol member is sufficient to ensure the lock of o conflict of interest. For exomple, in CEO 0B-23, the Commission soid thqt o corporotion owned by o member of the ntv Trons on Commission, cou
is sufficient guidonce

ssibly rent limousine service involved in the conlrsctuo[?E member himself, but his corporotion,

compcrnres

the commi becouse lhe ips wii fhe reguloted componies wos not the

Likewise, in CEO 82-54, the Commission odvised ihot it wos nof o prohibilelllanflict of interestforocons|ructioncomponyownedbyocoury1y-gq00 or
sSron 5 qnct

y Commissioner's corporotion, not the commissioner himself, who wos crs controcting wilh lhe rood pcving controcfor, there wos no "employmeni or controctuql relotionship" between the counly commissioner ond the rood poving conlroctor which wos doing business with the county, qnd so no prohibited conflict of interest.

Clam Pa.ntnqcroN Hanr Lanny Boxo & Sr;l,crnousp

The Honoroble Ashton Hoywerd September 26,2012 Poge 4 As in CEO 82-54 but more recently, in CEO I l-'12, the Commission odvised thcrt there wcrs no prohjbilei confllcl o,f intgrest whe{e g,coyntv commissioner hod occepted emplovmenTTirTF cornpony thot ptayilled underground utilitrlocotion compony thol provided underqround utilitrlocqtion services, ond which slso conlrocted-wTih-otFer olso controctedTiihTTh-er eniities which controcied with ihe County. In esch of fhese opinions, the Commission gave the opinion thot lhere wos no prohibited conflict of interesi despite a direci "chsin" of relstionships from the public officiol to one entity which contrcded with onother entity which in turn controcted with the body of which the officiol wos o member. The underl for lhe Commission's reosoning is that bSgg$elbere wos "coniroclusl or employment relotionship" between the public officiql or lrerself cnd the entity the public body, there wos no prohibited conflict of interest.

6iffiE

ln lhe situstion ol issue, though, ony relotionships ore substcrntiolly more tenuous cnd even more remole thon those in lhe referenced Advisory Opinions. Here, ihere is no coniroctuol or employment relotionship wholsoever beiween Roods, Inc. or Hewes, ond Redfish Hqrbor. There is no contrsctuol or employmenf relotionship whotsoever belween yourself ond ony privote enfity thql is controciing with Hewes or Roads, Inc. Moreoverf you ore nof now ond hove never been employed by Hewes or Roods, Inc. lf the Commission concluded thor there wos no prohibited conflict of interesi when there is cr direci "chqin" of relotionships, it is my opinion thot they would not find o prohibited conflict of interest when lhe conneclions crre os remofe ond tenuous qs ore presenl here.

My opinion is further strengthened by the fqci thot the iwo controcts ot issue were competitively bid proiects with multiple bidders. As o result, this is not q situqfion where you would exercise discretion on whether the controcts ore owsrded or nol. The only discretion you would hove os Moyor would be to reiecf crll bids snd re-qdvertise the proiect. See $ 3-3-2(c), City Code.

lf oll bids ore not reiected, the City Code requires thot fhe "lowest ond best responsible bid" be presented fo City Council for opprovol. $ 3-3-2(c), City Code. The execution of the controct by you ofter such opprovol is ministeriol only. ld. Further, you do nol vote on the sward of the controcf.
In sum, bosed upon my review of the opplicqble stotute ond the opinions of the Floridq Commission on ethics interpreting the stolute, it is my opinion thst the facfs here present no

prohibited conflict of interest which would violote 0 1.|2.3'13(7)(o), Flq. Stot.

Very truly

Curm Panrruc'roN HARTLARRy Boxn & S'racrcrousE

Citv of

Pensacola

Section 11 Pqel

SECTION 11 - FORMAL BID PROCEDURES

11.01

GENERALINFORMATION

All contracts for the purchase of equipment, materials, supplies, facilities, etc., in excess of twenty-five thousand dollars ($25,000), shall be awarded only after public advertisement and competition as may be prescribed by ordinance. Though some exceptions may apply, the
preferred method of procurement shall be competitive sealed bidding.

The requesting department initiates a bid request by compiling the specifications and submitting them for review by using the Preliminary Document Review Form. Bid documents may include advertisement, general conditions, insurance, bond requirements, specifications, plans, specialconditions, suggested vendors, and proposal page.
Prior to initiating a bid request, the requesting department shall contact the Purchasing Activity for assignment of a Invitation to Bid or Request for Proposals number which shall be reflected on all subsequent correspondence. Requesting Department shall coordinate Bid Opening date and time with the Purchasing Activity. Upon receipt of the Preliminary Document Review Form, the Purchasing Activity will compile the bid documents for advertising and distribution. This section documents the complete formal bid process.

11.02

VENDOR SELECTION

A vendor list sufficient to generate at least three responses is required for all purchases over twenty-five thousand dollars ($25,000)
Potential suppliers may be located by contacting Purchasing and using the following resources: State Purchasing Contracts Vendor List (See Section 12) Telephone Directories Product Catalogs Thomas Register Purchasing Records BIDNET McRaes Blue Book Trade Journals Department Recommendation Salespersons

11.03

ACQUISITIONMETHOD Formal bid procedures are utilized for purchases over $25,000. Specific types of written bids
are defined below. The type used is determined for each requisition.

A.

INVITATION TO BID

This is generally done via the sealed bid, and ls the standard method used. The Invitation to Bid is accompanied by detailed specifications, bid forms, and all contractual
terms and conditions applicable to procurement. Once bid, no changes in scope or price are allowed. cc'{^r

&aA,- c-*J .\-?,-

; t'\b

REOUEST FOR PROPOSAL

This is similar to Invitation to Bid, but is more complex and is generally used for services. This method requires the vendor to provide a detailed proposal in response to the

Request for Proposal, which

contractual agreement.

is more general in nature, and usually results in

Purchasing Policy and Procedures Manual

October 2011