CEO 77-62 -- April 21, 1977

VOTING CONFLICT OF INTEREST

VOTING ON MATTER AFFECTING VALUE OF PROPERTY OWNED BY PARENT

To: Bruce A. Smathers, Secretary of State, Tallahassee

Prepared by: Phil Claypool

SUMMARY:

Section 286.012, F. S. 1975, provides that a voting officer may not abstain from voting unless there is or appears to be a conflict of interest under the provisions of s. 112.311, s. 112.313, or s. 112.3143 of the Code of Ethics. Section 112.3143, F. S. 1975, the voting conflict of interest section of the Code of Ethics, provides that no officer shall be prohibited from voting in any matter. But, where he exercises his right to vote on a measure in which he has a personal, private, or professional interest which inures to his special gain or to the special gain of any principal by whom he is retained, he must disclose such conflict by the filing of a Memorandum of Voting Conflict. Where a member of the Land and Water Adjudicatory Commission is faced with a vote regarding the development of land located adjacent to land owned by his father, he may look to s. 112.311, which provides that "it is essential to the proper conduct and operation of government that public officials be independent and impartial . . . ." Should he feel that his impartiality is threatened by virtue of his father's property interest, he may abstain from voting on the matter; or he may elect to vote, whereupon he is required to file a Memorandum of Voting Conflict, CE Form 4.

QUESTION:

Am I, a member of the Land and Water Adjudicatory Commission, required to vote on a matter before that commission regarding the development of land which is located adjacent to land owned by my father?

Your question is answered in the negative.

In your letter of inquiry you have stated that as Secretary of State for the State of Florida you are a member of the Land and Water Adjudicatory Commission. The commission will consider the question of whether to allow a particular planned unit development to proceed. However, adjacent to the tract upon which the project is located is a parcel of land owned by your father. You also have stated that the possibility exists that you may acquire this parcel upon your father's death by will or by intestate succession and that the value of the parcel would probably appreciate should the adjacent development proceed.

Section 286.012, F. S. 1975, 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.

In addition, s. 112.3143, F. S. 1975, states:

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.

In a previous opinion, CEO 76-23 (question 3), we have read these statutes 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. Where the public officer perceives a 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), or he may abstain from voting on the matter.

Therefore, your question becomes a matter of determining whether you have or appear to have a conflict of interest pursuant to s. 112.311, s. 112.313 or s. 112.3143 of the Code of Ethics for Public Officers and Employees. Section 112.311(1), F. S. 1975, 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.

As we perceive that the situation you have described may not be one in which a public officer could remain independent and impartial and may result in private gain other than the remuneration provided by law, we feel that a conflict is presented. Accordingly, when the matter you have described is heard by the Land and Water Adjudicatory Commission, you will have the choice of two alternatives: You may exercise your right to vote in spite of the conflict and therefore be required to file a Memorandum of Voting Conflict (CE Form 4), or you may abstain from voting on the matter.