CEO 81-79 -- December 18, 1981

VOTING CONFLICT OF INTEREST

CITY COMMISSIONER VOTING ON MATTER AFFECTING COMPANY WHICH EMPLOYS HER

To: Mr. John T. Brennan, City Attorney, City of Fort Pierce

SUMMARY:

A voting conflict of interest would be created under Section 112.3143, F. S., were a city commissioner to vote on matters affecting a development company which employs her. Under that statutory provision, the council member would be required to file a Memorandum of Voting Conflict (CE Form 4) if she votes on a measure inuring to the special gain of her employer. As an alternative in such situations, Section 286.012, F. S., would permit her to abstain from voting.

QUESTION:

Would a voting conflict of interest be created were a city commissioner to vote on matters affecting a development company which employs her?

This question is answered in the affirmative.

In your letter of inquiry you advised that the subject City Commissioner is employed as a bookkeeper with a restaurant owned by a development company within the City. You question whether a voting conflict of interest would be created under Section 112.3143, F. S., were she to vote on matters relating to her employer, and whether she could abstain from voting pursuant to Section 286.012, F. S.

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. (1979).]

We previously have advised that this provision requires a public officer who votes on a measure inuring to the special gain of the officer's employer to file a Memorandum of Voting Conflict, CEO Form 4, within 15 days after the vote occurs. See CEO 78-27, Question 2.

Alternatively, Section 286.012, F. S., permits a public officer to abstain from voting in such situation, 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.

Under this provision, we have advised that a city council member may abstain from voting on the rezoning of a parcel of land which was in the process of being sold by his real estate firm. See CEO 78-96.

Accordingly, when a measure before the City Commission, such as site plan approval, would benefit the development company which employs the subject commissioner, she may choose to abstain from voting or she may choose to vote on the matter, in which case she would be required to file a Memorandum of Voting Conflict.