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HomeMy WebLinkAboutAttorney General Opinion on Sunshine Law 09-27-2010l3©ARD OF COUNTY COMMISSIONERS September 21, 2010 Honorable Bill McCollum Attorney General Department of Legal Affairs PL01 The Capitol Tallahassee, FL 32399-1050 RECEIVED 3EP 22 TOlO ~ ~vUNTY ATTORNEY Daniel S. McIntyre Heother Young Katherine Moclsenzie-Smith Heother Sperrozzo LuelSe ASSISTANT COUNTY ATTORNEY ASSISTANT COUNTY ATTORNEY ASSISTANT COUNTY ATTORNEY RE: Request for an Opinion -Whether meetings of a private Non-for-Profit Solar and Energy Loan Fund of St. Lucie County, Inc. are subject to Section 286.011 Florida Statutes, the Government in the Sunshine law Dear Attorney General McCollum: This request for an opinion is being made on behalf of a majority of the members of the Board of County Commissioners of St. Lucie County, Florida (the "County"). On July 22, 2010, Solar and Energy Loan Fund of St. Lucie County, Inc. (the "Fund")filed for incorporation as a Florida Non-Profit Corporation with Florida Department of State Division of Corporations. The Fund will be applying for recognition as an organization qualifying under I.R.C. Section 501(c)(3) to be exempt from federal income tax. The primary purpose of the Fund is to foster the development of a green economy. The Fund is intended to organize and qualify as a Community Development Financial Institution (CDFI) as authorized and contemplated bythe Reigle Community Development and Regulatory Act of 1994 as amended. Pursuant to federal regulations, to qualify as a CDFI the Fund will be required to demonstrate that it is not a governmental agency and is not owned or controlled by a governmental agency. The Board of Directors is composed of eight (8) members. One member is a member of the St. Lucie County Board of County Commissioners (the "Board") as appointed by the Board. The other seven (7) members are members of the business and educational communities. No public or governmental entity will have any ownership interest in or right to control the Fund or have any majority interest on its board. CHRIS DZADOVSKY, District No. 1 DOUG COWARD, District No. 2 PAUTA A. LEWIS, District No. ~ CHARLES GRANDE, District No. 4 CHRIS CRAFT, Disrcicr No. 5 County Adminisrroror - Foye W. Ourlow, MPA 2300 Virginia Avenue Ft. Pierce, FL 34982-5652 Phone (772) 462-1441 FAX (772) 462-1440 TDD (772) 462-1428 .The Fund is currently developing a new twenty (20) million dollar solar and energy loan fund. The twenty (20) million dollar solar and energy loan fund is being created from pledges from private lending institutions. Each of the private lenders submitted letters of interest, pledgingfive (5) million dollars. As indicated, St. Lucie County (the "County") also applied for and received a grant from the Department of Energy for two million nine hundred thousand ($2,900,000) dollars to provide administration and lending funds to foster a green economy in the County. The County intends to enter into a contract with the Fund for the Fund to administer and expend the grant monies. Memorandum of Law The Government in the Sunshine Law, Section 286.011, Florida Statutes, requires that meetings of a public board or commission at which official acts are to be taken are to be open to the public. The Florida Supreme Court in News and Sun-Sentinel Company v. Schwab Twitty and Hansen Architectural Group, Inc., 595 So.2d 1029, 1031, adopted a totality of factors test for determining whether a private entity is acting on behalf of any public agency. The factors to be considered include as follows: The level of public funding. The County will contract with the Fund to administer a grant of 2.9 million dollars. The Fund currently has pledges for another 20 million from non-public sources. The contract will be negotiated at arm's length and will provide for commercially reasonable consideration. 2. Commingle of Funds. There will be no commingling of funds. 3. Whether the activity was conducted on publicly owned property. The Fund is currently using the County's address for its address, and is using public meeting spaces for its meetings. Once the Fund becomes self sustaining, it is anticipated that the Fund will obtain its own facilities. 4. Whether services contracted for are an integral part of the public agency's chosen decision-making process. The services provided by the Fund are not an integral part of the County's chosen decision making process. Page 2 of 3 5. Whether the private entity is performing a governmental function or a function which the public agency's would otherwise perform. The functions proposed to be carried out by the Fund are not functions the County would otherwise perform. 6. The extent of the public agency's involvement with, regulation of, or control over the private entity. The County will only appoint one member of the Fund's Board of Directors, and will contractually require the Fund to comply with the federal regulations when administering the 2.5 million dollar grant. Otherwise, the County will not be involved in the Fund's activities. 7. Whether the private entity was created by the public agency. No. It is being established by members of the community and one commissioner. County staff is providing support while obtaining CDFI status. 8. Whether the public agency has a substantial financial interest in the private entity. There is no direct financial interest. 9. For whose benefit the private entity is functioning. The Fund is to foster the development of a green economy in the County and will likely benefit the residents of the County. Conclusion Analyzing all of the Schwab factors, the Solar and Energy Fund of St. Lucie County, Inc. is not subject to Section 286.011 Florida Statutes, the Government in the Sunshine law. Sincerely, ~~~~ KMS/cb Katherine Mackenzie-Smith H;\KMS's letters\AGO.wpd Assistant County Attorney Copy to: Board of County Commissioners Page 3 of 3