UPDATE: Town attorney addresses O'Connor

Commissioner Peter O’Connor questioned Monday whether groups such as The Longboat Key Club and Resort and The Islandside Property Owners Coalition can support a commission candidate financially.

Town Attorney David Persson said candidates who accept donations of more than $100 within two years prior to any vote on the Islandside project must be disclosed prior to a vote being taken.

Although Persson said he could not force candidates or commissioners from accepting contributions, he recommends they do not accept contributions from anyone that currently has a quasi-judicial application pending before the town, from any entity that is currently actively opposing a quasi-judicial application pending before the town, or from any member of the governing body (in whatever form) or officer of any entity that currently has a quasi-judicial application pending before the town or that actively opposes a quasi-judicial application pending before the town.

Certain transactions, Persson said, may raise concerns about the individuals ability to participate in any quasi-judicial proceeding.

In an e-mail he sent to Town Attorney David Persson Dec. 21, O’Connor requested a legal opinion.

Wrote O’Connor: “Specifically, how free are incumbent members of the Town Commission to contact or dialog with individual citizens or groups when these citizens or groups may have taken public positions on applications which may or will come before the Town Commission? How free are citizens or groups to contact, dialog with, or support members of the Town Commission who may be facing a re-election challenge during or after the hearing of any case which might or will come before the Town Commission?”

Persson responded Tuesday by explaining that all candidates, whether currently serving or not, may discuss with citizen groups and individuals about the policies, administration and direction of the town.

“The problem comes when discussing the specifics of a pending quasi judicial application (like the Islandside application),” Persson wrote in his e-mail.

Persson points to a town resolution that reads: “"While it is the intent of the town to discourage ex-parte communications between individuals and members of any board or commission sitting in a quasi-judicial capacity, the town recognizes that the public should be able to voice its opinion with local officials.

"Therefore the town deems it appropriate to regulate ex-parte communicates as provided herein ... The substance of any ex-parte communication with a local public official which relates to quasi-judicial action pending before the official is not presumed prejudicial to the action if the subject of the communication with the identify of the person, group or entity with whom the communication took place is disclosed and made part of the record before final action on the matter."

Persson said because there is a significant possibility that consideration of the pending Key Club Islandside application may continue after the election, he recommends all candidates adhere to this requirement in order to reduce the likelihood of a successful challenge to their participation.

Persson also continues to recommend to commissioners and candidates to keep the discussions on the topic to a minimum because the more ex-parte communications that occur, the more prejudicial the conversations will appear and the more difficult it is to argue the town is providing a fair forum.

Wrote Persson: “Certain rules should be observed to avoid potential disqualification should this matter come not only before the sitting commission, but also a future commission as well.”

Contact Kurt Schultheis at [email protected].