CEO 79-31 -- May 17, 1979

VOTING CONFLICT OF INTEREST

PLANNING COMMISSION MEMBER VOTING ON MATTER AFFECTING PERSON WITH WHOM HE HAS OCCASIONALLY SUBCONTRACTED

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.3143, F. S. 1977, requires a public officer to file a memorandum of voting conflict when he has voted 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. When a planning commission member votes on a rezoning measure requested by a person with whom he occasionally subcontracts, such disclosure is not required because the zoning change would not have inured to the commissioner's special private gain or that of a principal by whom he was retained, as there was no contract between the commissioner and the subcontractor at the time of the vote. Even if there had been such a contract at the time of the vote, the commission member, as a general contractor, would not have been retained as an agent by the subcontractor. However, the planning commission member was justified in abstaining from voting on the request for consideration, in light of his anticipation of using the subcontractor's services in the future. See CEO 78-96 in this regard.

QUESTION:

Does a voting conflict of interest exist when a planning commission member votes on a rezoning measure requested by a person with whom he occasionally subcontracts?

Your question is answered in the negative.

Through your letter of inquiry and a telephone conversation with our staff, we are advised that ____, a general contractor in the construction business, is a member of the City of St. Petersburg Planning Commission. We are further advised that a person who occasionally subcontracts with him to provide grading, landscaping, and lot-clearing services requested a change in zoning regarding a parcel of property owned by him. This application was denied by the planning commission with ____ voting in favor of the zoning change. Subsequently, reconsideration of that decision was requested by the applicant and was denied by the commission with ____ abstaining. At the time the matter was pending before the commission, there was no contract between ____ and the subcontractor, although ____ advised that he has hired this person in the past and anticipates using his services again in the future.

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.]

This provision requires a public officer to file a "memorandum of voting conflict" when he has voted 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 by any principal by whom he is retained. Under the facts you have described, it is clear that the planning commission's decision whether to grant the requested zoning change would not have inured to the subject commission member's special private gain, as it appears he stood to gain nothing in the event the request was granted. Nor would the commission's decision have inured to the special gain of any principal by whom the subject commission member was retained, since at the time of his vote there was no contract between him and the subcontractor. In passing, we note that even if there had been such a contract at the time of the vote, the subject commission member as a general contractor would not have been retained as an agent by the subcontractor. See CEO 78-67.

Accordingly, we find that the subject planning commission member was not required to file a memorandum of voting conflict after his vote on a measure affecting a person with whom he had subcontracted occasionally. In our view, the subject planning commission member was justified in abstaining from voting on the request for consideration, in light of his anticipation of using the subcontractor's services in the future. See CEO 78-96.

We have no jurisdiction to answer your second question regarding the possibility of an alternate member of the planning commission voting in place of a commission member who abstains, as no provision of the Code of Ethics addresses such a situation. You may wish to seek the opinion of the Attorney General on this issue; he has opined on similar situations in the past, such as in AGO's 075-244, 074-289, 074-160, and 073-141.