CEO 78-34 -- May 18, 1978

VOTING CONFLICT OF INTEREST

MEMBER OF CABINET VOTING ON MATTERS IN WHICH A PARTY IS REPRESENTED BY MEMBER OF PARENT'S LAW FIRM

To: (Name withheld at the person's request.)

Prepared by: Phil Claypool

SUMMARY:

A member of the State Cabinet is not required to vote on a matter coming before the Cabinet in which one of the parties is represented by a member of a law firm of which the Cabinet member's father is a partner. Reading s. 112.3143, F. S. 1977 in conjunction with s. 286.012, F. S., state law provides that no public officer may abstain from voting unless he has or appears to have a conflict of interest pursuant to enumerated provisions of the Code of Ethics. One such provision, s. 112.311, F. S., declares that "[i]t is essential to the proper conduct and operation of government that public officials be independent and impartial." The Ethics Commission concurs with the petitioner's view that the appearance to the public in the situation described is that of a conflict of interest as the totality of the circumstances give the appearance that the Cabinet member may not be absolutely independent and impartial concerning matters in which his father's law firm is involved. Accordingly, said Cabinet member lawfully may abstain from voting when a matter comes before the Cabinet in which a party is represented by the law firm of which the Cabinet member's father is a partner.

QUESTION:

Am I, a member of the Cabinet, required to vote on a matter before the Cabinet in which a party is represented by a member of my father's law firm?

Your question is answered in the negative.

In your letter of inquiry you advise that from time to time matters have come before the Governor and Cabinet in which one party has retained counsel from the ____ law firm, a firm which was begun by your grandfather and in which your father is an active partner. You also advise that you have no pecuniary interest in that firm and that your only association with the firm occurred when you served as a law clerk there prior to your admission to The Florida Bar. In the past, when this situation has occurred, you advise you have felt that you have a legal requirement to vote because you have lacked an actual conflict of interest, although you have ascertained from extensive media coverage and comment on your votes that the appearance to the public is that of a conflict of interest.

The Code of Ethics for Public Officers and Employees provides:

Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, within 15 days after the vote occurs, disclose the nature of this 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, F. S. 1977.]

In addition, s. 286.012, F. S. 1977 states:

Voting requirement at meetings of governmental bodies. -- 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. (Emphasis supplied.)

In previous opinions, we have read these provisions in conjunction to provide that no public officer may abstain from voting unless he has or appears to have a conflict of interest pursuant to the enumerated provisions of the Code of Ethics. See, for example, CEO's 76-51, 77-57, and 77-62. Where the public officer perceives a potential conflict, he looks to s. 112.3143, which offers two alternatives: He may exercise his right to vote in spite of the conflict, whereupon he is required to file a Memorandum of Voting Conflict (CE Form 4) if the conflict falls within the terms of s. 112.3143; or he may abstain from voting on the matter, in which case no disclosure is required. Inasmuch as you have no pecuniary interest in your father's law firm and, presumably, have no personal interest in the matter pending before the Cabinet, you clearly would not have a conflict of interest which, if you vote, would necessitate the filing of a Memorandum of Voting Conflict under s. 112.3143, above, as the matter would not in any way inure to your gain. Therefore, your question becomes a matter of determining whether you have or appear to have a conflict of interest pursuant to s. 112.311 or s. 112.313 of the Code of Ethics. Section 112.311(1), F. S. 1977 provides:

It is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law. The public interest, therefore, requires that the law protect against any conflict of interest and establish standards for the conduct of elected officials and government employees in situations where conflicts may exist. (Emphasis supplied.)

We concur in your view that the appearance to the public in the situation you have described is that of a conflict of interest. Specifically, the circumstances give an appearance that one in your position may not be totally independent and impartial concerning matters in which the ____ law firm are involved. Accordingly, we are of the opinion that you lawfully may abstain from voting when a matter comes before the Cabinet in which a party is represented by a member of your father's firm.