VOTING CONFLICT OF INTEREST
CITY COMMISSIONERS VOTING ON CONTRACT WHERE BIDDERS
EMPLOY THEIR SONS
To: Name withheld at person's request (City Attorney, City of North Lauderdale)
Under the circumstances presented, no voting conflict of interest would be created under Section 112.3143, Florida Statutes, were members of the City Commission to vote on a waste hauling contract, where their sons are employed by the bidders.
Would a voting conflict of interest exist were members of the North Lauderdale City Commission to vote on a waste hauling contract when each has a son who is employed by one of the bidders?
Your question is answered in the negative, under the circumstances presented.
You write on behalf of . . . (Mayor) and . . . (member), each of whom serves on the North Lauderdale City Commission.
You write that the City recently issued a request for proposals soliciting bids to provide municipal solid waste hauling services, and has received responses from three qualified bidders. One of the bidders is a national company based in Longwood, Florida that serves locations in Alabama, Florida, Georgia, and South Carolina; you believe their employees number in the thousands. The Commissioner's son, you advise, is employed as a garbage collector for this company out of its Pembroke Pines (Broward) office, and works specifically in the City of Hollywood.
A second bidder is a subsidiary of a company that, according to its website, is based in Phoenix, Arizona, and is the nation's second largest non-hazardous solid waste services company, with 31,000 employees and 348 hauling companies. You state that the Mayor's son is employed as a garbage collector in North Carolina for a company which you believe also falls under the corporate "umbrella" of this company. Both the Mayor's son and the Commissioner's son are hourly wage employees, you write, and hold no office or other interest in their respective companies..
Section 112.3143(3)(a), Florida Statutes, states:
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 the officer 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) prohibits the Mayor and the Commissioner from voting when the matter under consideration would inure to their own special gain or loss or that of a relative. We observed in CEO 11-41 that
because the statute does not speak directly in terms of gain or loss to a client or employer of the official's relative, in order to determine whether it applies to a situation where the measure would impact a relative's client or employer, we are required to evaluate - not whether the measure impacts the relative's client or employer - but whether the measure would inure to the special private gain or loss of the relative.
In that opinion, a county commissioner's son-in-law was poised to become a non-equity shareholder in a firm representing clients in land use matters before the county commission. He would have no ownership interest in the firm, would not be an officer or director of the firm, would receive no direct bonus, compensation, or origination fee related to the firm's work before the county commission, and would receive no direct compensation for fees received from the firm's work before the county commission. Under those circumstances, we said, it could not be concluded that the Commissioner's son-in-law would derive "special private gain" from a land use measure in which the firm was representing the property owner before the county commission. Similarly, in CEO 07-5 we found that a county commissioner was not prohibited by Section 112.3143 from voting on measures affecting clients of a lobbying firm employing her husband, where the husband received no compensation from any firm fee derived from the firm's work in behalf of a client on a matter involving the county.
Nothing in the information you have provided suggests that the either the Mayor's son or the Commissioner's son would be impacted in any way by the City's awarding—or failing to award—a contract to his employer or to a company affiliated with his employer. As there is no indication that the any special private gain or loss will inure to either the Mayor's or the Commissioner's sons as a result of the vote, we find that the Mayor and Commissioner would not be presented with a voting conflict regarding the vote to award the contract.
Is the Mayor or the Commissioner permitted to abstain from voting under Section 286.012, Florida Statutes, on measures affecting the two bidders?
Your question is answered in the negative.
As you recognize in your inquiry, this question 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 under Section 112.311, Section 112.313, or Section 112.3143, Florida Statutes.
Both this Commission and the Attorney General's Office have rendered opinions interpreting this provision. As you also recognize in your inquiry, we have no direct jurisdiction over this statute, which is not a part of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. Therefore, our opinion is not authoritative. However, as the statute specifically references provisions that are within our substantive jurisdiction, we have in the past attempted to respond to questions concerning what would constitute an appearance of a conflict under Section 112.3143. In doing so, we have agreed with the Attorney General's construction that some financial or economic interest must be at issue in a measure in order to abstain from voting. For example, in CEO 08-11, we found that a voting conflict did not exist under Section 112.3143, regarding city council measures affecting clients of an attorney against whom a city councilmember had made a criminal complaint and that under the facts presented, the member would not be permitted to abstain from voting under Section 286.012.
We recognize that it may be argued that there is a nominal financial or economic nexus here, in that the Mayor's and Commissioner's son are employed and receive financial remuneration from their respective companies. But Section 286.012 states a requirement to vote except in certain circumstances, and exceptions are to be interpreted narrowly. To allow abstention in cases where there is neither an actual voting conflict nor any rational basis for a suspicion of a voting conflict, would permit the exception to swallow the rule in a large number of cases. The public purpose of allowing abstention when it is not mandated by Section 112.3143 is to promote public confidence in the outcome of the vote when, although it would not violate the law for the official to vote, circumstances are such that the public may have a legitimate doubt, caused by some financial or economic factor, as to the official's impartiality. Nothing you have presented suggests that any reasonable person would have cause to question the impartiality of the vote in this case.
Accordingly, it appears that Section 286.012, Florida Statutes, would not permit abstention from voting by the Mayor or Commissioner under the circumstances presented here.
ORDERED by the State of Florida Commission on Ethics meeting in public session on July 29, 2011 and RENDERED this 3rd day of August, 2011.
Robert J. Sniffen, Chairman
[Copies of Commission on Ethics opinions referenced in this opinion may be obtained through the Commission's Internet web site: www.ethics.state.fl.us/ or by contacting the Commission on Ethics directly.]