CEO 79-33 -- June 6, 1979

VOTING CONFLICT OF INTEREST

SCHOOL BOARD MEMBER VOTING ON MATTER CONCERNING PARTNER IN REAL ESTATE DEVELOPMENT

To: Pete Holman, Superintendent of Schools, Panama City

Prepared by: Phil Claypool

QUESTION:

Would a voting conflict of interest be created were a school board member to vote on the hiring of an architect for the school board when that architect, independent of his practice, is a partner in a real estate development partnership with the school board member?

SUMMARY:

Pursuant to s. 112.3143, F. S. 1977, a public officer who 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, is required to file a memorandum of voting conflict. This provision is not deemed to be applicable to a school board member who votes on a matter affecting an architect wishing to contract with the school board, when said architect and the board member are limited partners in a land development company. The school board member personally would derive no benefit from the vote, and he is not retained by the architect. However, reference is made to s. 286.012, F. S., which permits, but does not require, a public officer to abstain from voting under certain circumstances. Reference further is made to CEO's 76-23 and 79-14 in this regard.

Your question is answered in the negative.

In your letter of inquiry you write that Dr. Young is a limited partner in a land development company, another partner of which is an architect who desires to enter into a contractual relationship with the Bay County School Board to furnish professional design services. You also advise that the partnership deals exclusively in real estate development and has no interest, financial or otherwise, in the architectural practice. The architect's practice is a separate entity from the development company and is solely owned and operated by Dr. Young's business associate. You further advise that, under the Consultants' Competitive Negotiation Act (s. 287.055, F. S.), the school board members vote on the ranking in order of preference of the architects desiring to enter into a contractual relationship with the school board prior to beginning negotiations on the fee which will be paid.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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 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. [Section 112.3143, F. S. 1977.]

Pursuant to this provision, a public officer who 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, is required to file a "Memorandum of Voting Conflict" (CE Form 4). Under the facts you have presented, the subject school board member is not retained by the architect who wishes to contract with the school board. Nor does it appear that the subject school board member would derive any private gain if the architect who is his business partner is retained by the school board, since their real estate development partnership is independent of the architect's practice.

Section 286.012, F. S., provides as follows:

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.

This provision permits, but does not require, a public officer to abstain from voting under certain circumstances. See CEO 76-23. Under the circumstances of this opinion, we believe that the subject school board member would be permitted to abstain from voting on matters concerning the architect because of the appearance of a conflict of interest arising out of his private economic interests. See CEO 79-14.

Accordingly, we find that the subject school board member may vote on matters concerning a proposed contract between the school board and the architect who is his business associate. Alternatively, he may abstain from voting on such matters; in neither case is he required to file a "memorandum of voting conflict."