CEO 79-61 -- October 17, 1979
VOTING CONFLICT OF INTEREST; CONFLICT OF INTEREST
SCHOOL BOARD MEMBER VOTING ON MATTER CONCERNING PRIVATE TENANT
To: (Name withheld at the person's request.)
Prepared by: Phil Claypool
Based on the rationale contained in CEO 76-195, no prohibited conflict of interest exists when a school board member leases property to an architect who is doing business with the school board. Under s. 112.3143, F. S. 1975, in order for a voting conflict to be created, the matter up for vote must relate to the personal, private, or professional interest of the voting official and must inure to the private gain of either the voting official or a principal who retains him or her. In CEO 77-34, it was advised that a landlord is not "retained" by a tenant. Further, when a school board votes to retain an architect who is a private tenant of a school board member, such vote would not inure to the benefit of the board member inasmuch as it would have no effect on the tenant's rent payments. Accordingly, no voting conflict of interest would be created, although the school board member would be entitled to abstain from voting based on the appearance of a conflict of interest. Commission on Ethics Opinion 79-14 is referenced in this regard.
1. Is a voting conflict of interest created when a school board member votes to retain an architect who leases property from the school board member?
2. Does a prohibited conflict of interest exist when a school board member leases property to an architect who is doing business with the school board?
Question 1 is answered in the negative.
In your letter of inquiry, you advise that ____ , a member of the Lake County School Board, recently voted on the appointment of an architect for a school board project. You further advise that the architect leases an area for his business in a building owned by ____ and her husband, whose business also is located in the building. ____ has had no contact with the architect regarding the rental, you advise, and had nothing to do with the leasing of the property to him, as all of those negotiations were handled by her husband.
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. 1975.]
In order for a voting conflict to be created, the matter up for vote must relate to the personal, private, or professional interests of the voting official and must inure to the private gain of either the official or a principal who retains him or her.
We previously have advised that a landlord is not "retained" by a tenant. See CEO 77-34. Nor does it appear that the school board's retention of the architect would inure to the private gain of the subject school board member, as landlord. Were the contractual relationship or agreement between the school board member and the architect contingent in some way upon action by the school board, the board's action clearly would inure to her benefit. See CEO 78-96, question 1. However, you have advised our staff in a telephone conversation, the terms of the lease specify a flat monthly payment for rent -- not one which would be based upon the income of the tenant. Therefore, we cannot say that the school board's retention of the architect would inure to the private gain of the subject school board member.
Accordingly, we find that a voting conflict of interest was not created when the subject school board member voted to retain an architect who leases property from her. As to your inquiry concerning the applicability of s. 286.012, F. S., it is our opinion that the school board member could have abstained from voting on the retention of the architect because of the appearance of a conflict of interest on economic grounds. See CEO 79-14.
Although your request for an advisory opinion inquired only whether a voting conflict of interest was created under the foregoing circumstances, those facts raise an additional issue under the Code of Ethics as stated in question 2, which is answered in the negative, based upon the rationale of CEO 76-195.