CITY COUNCIL MEMBER APPLICANT FOR MAYORAL
APPOINTMENT VOTING ON APPOINTMENT
To: Marilyn W. Miller, Assistant City Attorney (Cape Coral)
No voting conflict would be created under Section 112.3143(3)(a), Florida Statutes, were a member of a city council to vote on a measure to appoint a person as mayor, where the member is an applicant for the appointment. The vote would affect the public interest of the city (a public entity) and any gain or loss to the member would not be prohibited because of Section 112.313(5), Florida Statutes. CEO 82-91 and Commission on Ethics Complaint Nos. 05-067 and 05-068 are referenced.
Would a voting conflict of interest be created were a member of a city council to vote to appoint a person as the city's mayor where the member is an applicant for the appointment?
Under the situation presented, your question is answered in the negative.
By your letter of inquiry and a follow-up letter, we are advised that Jim Burch (member) serves as a member of the City Council of the City of Cape Coral, an eight-member governing body consisting of seven Council members and a Mayor, all elected at large.1 In addition, we are advised that the Mayor's position will become vacant on November 17, the effective date of the current Mayor's irrevocable, written resignation from office previously submitted in furtherance of his candidacy for the Lee County Commission, and that regarding the vacancy the City Charter provides:
A vacancy in the Council shall be filled for the remainder of the unexpired term, if any, at the next City general election following not less than sixty (60) days upon the occurrence of the vacancy, but the Council by a majority vote of all its remaining members shall appoint a qualified person to fill the vacancy until the person elected to serve the remainder of the unexpired term takes office. If the Council fails to do so within thirty (30) days following the occurrence of the vacancy, the Council shall call a special election to fill the vacancy, to be held not sooner than ninety (90) days and not later than one hundred twenty (120) days following the occurrence of the vacancy and to be otherwise governed by the provisions of Article VIII . . . .
Further, you advise that pursuant to the above Charter provision the Council must appoint a person to fill the vacancy in order to avoid the need for a special election.
In addition, you advise that at a recent Council meeting the Council voted to begin accepting applications for the vacancy, which must be submitted between September 23 and October 14, decided to interview applicants, and decided to make the appointment on November 3. Also, you advise that the member has indicated that he may decide to apply for the appointment.
Thus, in view of the situation, you advise, the member seeks our opinion as to whether the Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes) would be violated were he to vote to appoint a person to the Mayor position, where he is one of the applicants.
Within the Code and relevant to the member's inquiry is Section 112.3143(3)(a), Florida Statutes, the portion of the voting conflicts law applicable to local, elected, public officers, and Section 112.313(5), Florida Statutes, which affects the application of Section 112.3143(3)(a). These statutes provide:
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. [Section 112.3143(3)(a), Florida Statutes.]
SALARY AND EXPENSES.—No public officer shall be prohibited from voting on a matter affecting his or her salary, expenses, or other compensation as a public officer, as provided by law. No local government attorney shall be prevented from considering any matter affecting his or her salary, expenses, or other compensation as the local government attorney, as provided by law. [Section 112.313(5), Florida Statutes.]
Under the situation presented, we find that a voting conflict would not be created for the member regarding a measure to appoint a person as Mayor, where he is one of the applicants, whether he or another receives the appointment. While we have not had occasion to construe these statutes in a situation identical to the member's, we have found no voting conflict in analogous situations. In CEO 82-91, we opined that no voting conflict of interest was created where a city mayor/council member voted to excuse his absences from city council meetings where a city charter provision provided for forfeiture of office for three consecutive unexcused absences, reasoning that the vote pertained to the member's public position and affected him in his capacity as a public official, rather than in his capacity as a private citizen.
Thereafter, in reliance on CEO 82-91 and Section 112.313(5), we dismissed as legally insufficient ethics complaints against a member of the City Council of the City of Temple Terrace which alleged that she voted on a measure to change/interpret/eliminate a City Charter provision, with the effect that she would not have to stand for election at an upcoming election, thereby ensuring her receipt of Council salary or ensuring that "she [did] not have to go through the expense of running again." See In re GLENDA VENABLE, Complaint Nos. 05-067 and 05-068 (dismissed via Commission on Ethics orders rendered June 7, 2005). In dismissing the Complaints, we analogized the Council member's situation to that of the Mayor in CEO 82-91 and further reasoned that any distinction between her situation and that of the Mayor in CEO 82-91 occasioned by her receipt of salary and the Mayor's lack of compensation was covered by Section 112.313(5).
Here, as in CEO 82-91 and Complaint Nos. 05-067 and 05-068, we believe that the essence of the voting conflicts law addresses gain or loss directly flowing from a vote (measure) as it affects one's purely private interests and does not address situations where effects of a vote/measure directly impact the institutional structure of government, such as timely and efficiently filling the offices of government.2 Also, we note that in the instant situation the Mayoral post is, in the main, one of eight positions on a governing body, seven of which pay almost as much as that of Mayor and one of which already is held by the member, and which contrasts significantly with, for example, a position such as that of a full-time, highly-paid chief executive officer of a city.
Accordingly, we find that the Council member is not presented with a voting conflict of interest regarding votes/measures to appoint a person as Mayor, where he is an applicant.
ORDERED by the State of Florida Commission on Ethics meeting in public session on October 17, 2008 and RENDERED this 22nd day of October, 2008.
Cheryl Forchilli, Chair