CEO 79-14 -- March 22, 1979

VOTING CONFLICT OF INTEREST

ABSTENTION FROM VOTING BY CITY COUNCIL MEMBER

To: Michael E. Watkins, City Attorney, Homestead

Prepared by: Phil Claypool

SUMMARY:

A city council member may not abstain from voting on grounds of bias or prejudice against an individual when matters concerning that individual or the business he represents come before the council. It is present policy of this state that a public officer may vote upon any matter, so long as he files a memorandum of voting conflict. See s. 112.3143, F. S. 1977. He also may abstain as provided by s. 286.012, which has been interpreted by the Attorney General to require that a voting officer have a personal financial interest in a matter in order to abstain. Therefore, in the absence of any applicable provision of law which would override policy established by s. 112.3143, a public officer may abstain from voting only if there is or appears to be a conflict of interest under s. 112.311, s. 112.313, or s. 112.3143, none of which relate to bias or prejudice on the part of a public officer based on other than private economic interests or relationships.

QUESTION:

May a city council member abstain from voting on grounds of bias or prejudice against an individual when matters concerning that individual, or the business he represents, come before the council?

Your question is answered in the negative.

In your letter of inquiry you advise that the subject city council member in the past was involved in an altercation with another person which began with words and ended with blows. You also advise that this other person is the president and majority stockholder of a national bank located within the city and that, from time to time, matters come before the city council concerning this bank. In addition, you advise that the subject city council member believes that any items upon which he might vote involving this individual or his bank, depending on his vote, would present the appearance of impropriety on his part, based upon personal bias or dislike for the individual. Finally, you write that it is entirely possible for some bias or prejudice to exist, either conscious or unconscious, in the mind of the city council member, who wishes to avoid any impropriety and any appearance of impropriety.

Historically, in the absence of a statutory provision regarding conflicts of interest, abstention from voting, or disqualification of public officials, the Florida courts have adhered to the following rule:

The motives of a governing body of a municipality in adopting an ordinance of legislative character are not usually subject to judicial inquiry, while actions of judicial tribunals or bodies acting quasi-judicially can be reviewed. [City of Opa Locka v. State ex rel. Tepper, 257 So.2d 100, 104 (3 D.C.A. Fla., 1972).]

See also Schauer v. City of Miami Beach, So.2d 838 (Fla. 1959). However, even when a public body exercised a legislative function, the courts could determine whether that body's action involved fraud or overreaching. City of Coral Gables v. Coral Gables, Inc., 160 So. 476 (Fla. 1935).

When a board acts in a quasi-judicial capacity, a member of the board might be disqualified to act in a particular case by reason of personal interest or prejudice. State Board of Funeral Directors and Embalmers v. Cooksey, 4 So.2d 258 (Fla. 1941), and Board of Public Instruction of Broward County v. State ex rel. Allen, 219 So.2d 430 (Fla. 1969).

However, when a statute or charter provision is applicable, it will control over the above rules. Fossey v. Dade County, 123 So.2d 755 (3 D.C.A. Fla., 1960), holding that under a county charter provision, a county commissioner was required to abstain from voting on a matter in which he had a special financial interest. Under s. 475.44, F. S., a member of the Florida Real Estate Commission may be disqualified in a particular matter on the same grounds as circuit judges, which include bias, prejudice, or interest. State ex rel. Cannon v. Churchwell, 195 So.2d 599 (4 D.C.A. Fla., 1967).

Similarly, a longstanding provision of the Administrative Procedure Act, s. 120.09, F. S., allowed the disqualification of a member of an administrative body for bias, prejudice, interest, or other causes. However, this provision was held not to apply to city commissions in City of Opa Locka v. State ex rel. Tepper, supra. Section 120.09 has been amended and presently exists as s. 120.71, F. S. It appears that the present section also would have no application to a city councilman, as Ch. 120 does not apply to municipal agencies. Section 120.52(1)(c), F. S.

In 1972, s. 286.012, F. S., was enacted. This statute, with only minor amendments, presently 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. [Section 286.012, F. S. 1977.]

The Attorney General has rendered numerous opinions interpreting this provision. Those most relevant to the question presented in this opinion include AGO 072-229 (a public official must cast his vote unless he has a personal interest in the matter); AGO 073-236 (a city councilman is not required to abstain on a request for zoning change made by a regular business customer unless such vote results in substantial benefit to the councilman's business); and AGO 074-31 (a county commissioner may not abstain on matters relating to a mental health board of which he is a director as he would not profit personally). Thus, it appears that under the Attorney General's interpretation of s. 286.012 and the provisions of the Code of Ethics referenced in that section, a public official was required to have a personal financial interest in a matter in order to abstain from voting on that matter.

The Attorney General has advised also that s. 286.012 should be regarded as mandating abstention in cases when it applies. See AGO's 073-121 and 073-215. However, in 1974 the Legislature enacted s. 112.3141, F. S., which appears now as s. 112.3143, F. S. 1977:

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 his 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. (Emphasis supplied.)

Thus, it is the present policy of this state that a public officer may vote upon any matter, so long as he files a memorandum of voting conflict when required by the above-quoted section. He also may abstain as provided by s. 286.012, F. S.

Therefore, in the absence of any applicable provision of law which would override policy established by s. 112.3143 (for example, see s. 120.71, F. S. [1978 Supp.]), it appears that a public officer may abstain only if there is, or appears to be, a possible conflict of interest under s. 112.311, s. 112.313, or s. 112.3143, F. S. However, in our view, none of these three sections applies to the circumstances you have outlined.

Section 112.3143, quoted above, requires the filing of a memorandum of voting conflict when a public officer votes upon a 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 . . . ." Here, there is no principal relationship between the parties involved, nor does it appear that matters coming before the city council regarding the bank or its president would inure to the gain of the subject councilman. Therefore, s. 112.3143 does not apply.

Section 112.313 contains numerous standards of conduct for public officers, none of which, however, would apply or even appear to apply here, as they relate primarily to conflicts of interest based upon the private economic interests of a public official.

Section 112.311 expresses the legislative intent behind the substantive provisions of the Code of Ethics. As a general statement of intent, this section provides broader grounds for one's abstention from voting than does s. 112.3143 or s. 112.313. See s. 112.311(1), regarding the independence and impartiality of public officials. Nevertheless, it is clear that, when adopting the Code of Ethics, the Legislature was concerned primarily with the effect of a public official's economic interests and relationships upon the performance of his public duties, rather than the effect of his personal preferences or animosities. See s. 112.311(5), F. S.

In short, the sections of the Code of Ethics referenced in s. 286.012 simply do not relate to bias or prejudice on the part of a public officer under the circumstances presented here. Moreover, it appears that, had the Legislature intended to allow abstention by, or disqualification of, a municipal official on grounds of bias or prejudice, it would have done so explicitly, as it has done in ss. 120.71 and 475.44, F. S., for other classes of public officers.

Accordingly, it is our opinion that a city council member may not abstain from voting on grounds of bias or prejudice against an individual when matters concerning that individual, or the business he represents, come before the council.