CEO 08-11 -- June 11, 2008

VOTING CONFLICT

CITY COUNCILMEMBER VOTING ON MEASURES
AFFECTING CLIENTS OF ATTORNEY AGAINST WHOM
COUNCILMEMBER MADE CRIMINAL COMPLAINT

To: Grant W. Alley, City Attorney (Fort Myers)

SUMMARY:

A voting conflict does not exist under Section 112.3143(3)(a), Florida Statutes, regarding city council measures affecting clients of an attorney against whom a city councilmember has made a criminal complaint and, under the facts presented, it appears that the member would not be permitted to abstain from voting under Section 286.012, Florida Statutes. Neither the attorney nor her clients (the persons or entities affected by the measures) would stand in a relationship to the councilmember enumerated under Section 112.3143(3)(a), or in a similar relationship to the councilmember, and the councilmember's economic, financial, or similar interests would not be affected. CEO 79-14, CEO 83-42, CEO 86-57, CEO 88-18, CEO 90-77, and CEO 98-17 are referenced.


QUESTION 1:

Does a voting conflict exist under Section 112.3143(3)(a), Florida Statutes, regarding city council measures affecting clients of an attorney against whom a city councilmember has made a criminal complaint?


Your question is answered in the negative.


By your letter of inquiry, we are advised that Thomas Leonardo (member) serves as a member of the City Council of the City of Fort Myers. In addition, we are advised that last year an attorney representing a developer seeking approval of an ordinance to modify a development order came before the Council and introduced documents into the record that included confidential, personal information pertaining to the member and the member's wife, resulting in the member's recently making a complaint to the Sheriff's Office along with a request that the Office conduct an investigation to determine if there is probable cause to criminally charge the attorney for her actions regarding introduction of the documents. Further, you advise that the attorney frequently appears before the Council in behalf of various clients, resulting in the member's belief that it is possible that the attorney could allege that the member has a personal bias against her and, by implication, her clients' interests before the Council, due to the Sheriff's Office complaint.


Section 112.3143(3)(a), Florida Statutes, the portion of the voting conflicts law applicable to local, elected public officers such as city council members, provides:


VOTING CONFLICTS.—No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer’s interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.


In addition to the statute's requirements of declaration of interests, abstention from voting, and timely filing of a memorandum of voting conflict (CE Form 8B) regarding measures of an officer's public body which would inure to the special private gain or loss of the officer, the statute also requires the same conduct regarding measures which would inure to the special private gain or loss of the officer's principal (e.g., client, employer), relative, business associate, or other enumerated persons or entities.

Inasmuch as the facts of your inquiry do not indicate that the attorney or any of her clients (persons apparently affected by Council measures) stand in a statutorily-enumerated relationship to the member,1 we find that the member is not required to take the actions specified in Section 112.3143(3)(a) regarding measures of the Council which would inure to the special private gain or loss of the attorney2 or the attorney's clients.


This question is answered accordingly.


QUESTION 2:

Is the member permitted to abstain from voting under Section 286.012, Florida Statutes, on measures affecting the attorney or clients of the attorney?


Under the circumstances presented, this question is answered in the negative.


In addition to the information set forth above regarding Question 1, you advise that as a result of the situation between the attorney and the member, the member believes it is possible that regarding any item upon which he may vote in the future involving clients represented by the attorney, the attorney could allege that the member has a personal bias against her and, by implication, her clients before the Council. Further, you advise that the member is certain that he will be able to act impartially as a Council member regarding the attorney and her clients but that the potential for allegations of bias against the member has motivated him to seek our opinion as to whether he should disqualify himself from any future votes in which the attorney appears before the Council. Also, you advise that your review of the City Charter discloses no provision relating to disqualification or abstention from voting based on bias.


As you recognize in your inquiry, this question necessarily implicates Section 286.012, Florida Statutes (the voting requirement law), which provides:


No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act; and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is, or appears to be, a possible conflict of interest under the provisions of s. 112.311, s. 112.313, or s. 112.3143. In such cases, said member shall comply with the disclosure requirements of s. 112.3143.


The statute requires voting, and does not permit abstention, by an officer of a collegial body of certain governmental entities regarding measures before the body, except when there is, or appears to be, a conflict of interest, or a possible conflict of interest, regarding the officer, under either Section 112.311, Section 112.313, or Section 112.3143, Florida Statutes.


Codification of the statute outside the Code of Ethics for Public Officers and Employees (outside Part III, Chapter 112, Florida Statutes), coupled with the statute's express references to provisions of the Code of Ethics, has resulted in both the Attorney General's and our issuance of a number of opinions concerning it. It appears that the Attorney General's interpretation of the statute requires a public officer to have a personal financial or economic interest in a measure in order to abstain from voting (e.g., AGO 87-17), and we have issued decisions agreeing with this interpretation,3 but we have also read the statute's "appears to be a possible conflict" language as permitting abstention under a broader variety of circumstances.4 See Gonzalez and Claypool, Voting Conflicts of Interest under Florida's Code of Ethics for Public Officers and Employees, XV Stetson Law Review 675 (1986). Further, whether a measure presents a possible conflict under the provisions of the Code of Ethics enumerated in Section 286.012 has been recognized by the Attorney General as being a determination for the Commission on Ethics (AGO 77-138, AGO 87-17).


We view the member's situation as analogous to several of our opinions finding that abstention would not be permitted under Section 286.012. See, for example, CEO 79-14 (vote on bank application where city council member previously had physical altercation with officer of the bank), CEO 86-57 (county commissioner faced with vote on concealed weapons license where license applicant had previously sued commissioner), and CEO 88-18 (hospital board member voting on staff membership and lawsuit of physician suing board). Further, the vast majority of our decisions finding a permitted abstention under the statute have involved situations similar to required voting abstentions under Section 112.3143, Florida Statutes, situations in which the gain or loss inuring directly from the vote/measure went to the voting official himself or to persons or entities who held a statutorily enumerated relationship (or similar relationship) to the official. For example, in CEO 83-42 we found that a city mayor could validly abstain under Section 286.012 from voting on settlement of a lawsuit between the city and his landlord, the landlord-tenant relationship, although not enumerated within Section 112.3143, being like the economic/financial principal-agent relationship enumerated in Section 112.3143. Also, see CEO 98-17 in which we countenanced abstention under Section 286.012 where a city council member was faced with voting on approvals for developers, including annexations, where the council member had done business with the developers in the past and might do business with them in the future, but where they were not principals by whom he was retained at the time of the votes. Like the situations present in our prior decisions, your inquiry does not indicate that any economic or financial interest of the member is connected to the attorney or her clients; rather, the inquiry indicates the revelation of personal, confidential information regarding the member and the member's complaining to criminal authorities about the revelation, a situation more akin to the lawsuit, physical confrontation, and similar matters where we have not endorsed abstention under Section 286.012.


Therefore, we find that the situation presented does not indicate an abstention permitted under Section 286.012, inasmuch as the situation does not indicate that the member would be personally affected by votes/measures affecting the attorney or her clients, does not indicate that any person or entity standing in a relationship to the member enumerated in Section 112.3143 would be affected by votes/measures, and does not indicate that any person or entity standing in a relationship similar to the relationships enumerated in Section 112.3143 would be affected by votes/measures.5


Our determination herein involves recognition that an intent of the Code of Ethics is to address economic, business, financial, and similar relationships of public officers, recognition that all profound and important relationships are not addressed by the Code, and recognition that the primary purpose of Section 286.012 is to require public officers to vote and take a position on the issues before their public bodies and thus that its exception to the voting requirement should be strictly construed, lest officials and their boards be paralyzed due to excessive voting abstentions based in relationships not akin to those specified in the Code.6


Accordingly, it appears that Section 286.012, Florida Statutes, would not permit abstention from voting by the member regarding the attorney or her clients under the circumstances presented in this inquiry.7


ORDERED by the State of Florida Commission on Ethics meeting in public session on June 6, 2008 and RENDERED this 11th day of June, 2008.

____________________________________

Albert P. Massey, III, Chairman

[1] The facts of your inquiry also do not indicate any special private gain or loss to the member from the measures affecting the attorney's various clients.
[2] We note that all votes/measures which would inure to the special private gain or loss of an attorney's clients also do not necessarily inure to the special private gain or loss of the attorney.
[3] For example, as your inquiry notes, in CEO 79-14 we found that non-economic bias or prejudice on the part of a public officer toward someone affected by a measure (there, a person who had had a words-to-blows altercation with the officer) would not be the basis for a valid abstention under Section 286.012.
[4] For example, in CEO 90-77 we found that a city planning board member could validly abstain under Section 286.012 regarding measures which would inure to the special private gain or loss of a person whom she merely was dating (with no marriage engagement or obligation of economic support).
[5] We recognize that "relative," a relationship specified in Section 112.3143, is not necessarily an economic, financial, or similar relationship, and we recognize that our decision in CEO 90-77 found that a city planning board member was permitted to abstain under Section 286.012 where the vote/measure would affect a person whom she was dating, with no engagement or obligation for financial support. However, inasmuch as "relative" is now included within Section 112.3143 and inasmuch as a significant other (not enumerated in Section 112.3143) is similar to a relative, as a landlord (not enumerated in Section 112.3143) is similar to a principal/client or a business associate, we believe that the "economic/financial interest" reasoning of many of our prior opinions and this instant opinion is not contradicted by CEO 90-77.
[6] We have not overlooked that Section 286.012 recognizes that a permitted abstention can be based in a conflict or possible conflict grounded in Section 112.311, Florida Statutes, a portion of the Code which, unlike Sections 112.313 and 112.3143, itself does not contain standards of conduct primarily grounded in economic, financial, or similar interests of a public officer. However, we do not read Section 112.311 as broadening the types of relationships encompassed within Sections 112.313 and 112.3143, for purposes of Section 286.012, because Section 112.311 itself is focused on economic, financial, and similar concerns due to express language contained within it, and because Section 112.311 standing alone (without implementation of standards of conduct via Sections 112.313 and 112.3143 and other provisions of the Code) itself does not contain any voting conflict provision or other substantive standard of conduct for public officers.
[7] It is not within our jurisdiction to determine whether bias or prejudice exists on the part of the member toward the attorney or her clients for purposes of disqualification ("recusal") of the member from consideration of Council matters involving the attorney or her clients, based on due process/quasi-judicial grounds. In this regard, the member may wish to review caselaw or consult the Attorney General.