CEO 84-11 -- January 26, 1984

VOTING CONFLICT OF INTEREST

TOWN COUNCIL MEMBER VOTING ON MATTERS AFFECTING CLIENT AND OFFICE BUILDING IN WHICH HE IS PURCHASING OFFICE

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

SUMMARY:

A town council member, who is an attorney, appropriately filed a memorandum of voting conflict pursuant to Section 112.3143, Florida Statutes, after voting on a variance requested by a client and after voting on variance requests regarding a condominium office building in which a partnership of which he was a partner had agreed to purchase space for his law office. In the first instance, the matter inured to the special gain of his client, a principal by whom he was retained. In the second, the council member's interest in the construction of the office building was sufficient to trigger the filing requirement under the statute.

QUESTION 1:

Was a voting conflict of interest created where you, a town council member and attorney, voted on a variance requested by a client?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you are a member of the Palm Beach Town Council and that you are an attorney. You also advise that in the past a matter came before the Council in which a client of yours was applying for a variance. You did not represent the client in the variance request or consult with him concerning it, but you had represented the individual in other matters prior to the consideration of the application for a variance. On the advice of the Town Attorney, you voted and filed a memorandum of voting conflict with the Town Clerk. You question whether your action was in violation of the laws regarding voting conflicts.

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, Florida Statutes (1983).]

In addition, Section 286.012, Florida Statutes (1983), provides:

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.

We have interpreted these two provisions as granting a public official faced with a voting conflict of interest the discretion either to abstain from voting or to vote on the matter and file the required Memorandum of Voting Conflict (Commission on Ethics Form 4). See CEO 81-79 and CEO 77-57, for example. In our view, Section 112.3143 should be interpreted liberally, as it requires only public disclosure and does not constitute a prohibition.

We are of the opinion that your voting and filing a Memorandum of Voting Conflict on your client's request for a variance was appropriate under Section 112.3143. Clearly, the matter inured to the special gain of your client, a principal by whom you were retained. In addition, you may be said to have had a personal, private, or professional interest in the variance request as it concerned a client of your professional practice.

Accordingly, we find that it was appropriate for you to vote on the variance request of your client and to disclose the fact that the individual was a client pursuant to Section 112.3143, Florida Statutes.

QUESTION 2:

Was a voting conflict of interest created where you, a town council member and attorney, voted on variance requests regarding a condominium office building in which a partnership of which you were a partner had agreed to purchase space for your law office?

This question also is answered in the affirmative.

In your letter of inquiry you advise that in July of 1982 a request for variances regarding the construction of a condominium office building came before the Town Council. One request was for a waiver of a moratorium on construction, and the second request was to permit the building to be constructed with two fewer parking spaces than required by the Town building code. You also advise that a partnership consisting of you and your wife had agreed to purchase space for your law office in the building. On the advice of the Town Attorney, you voted on the request and filed a memorandum of voting conflict with the Town Clerk. You question whether your action was in violation of the laws regarding voting conflicts.

As noted in our response to your first question, we have advised that Sections 112.3143 and 286.012, Florida Statutes, give a public official faced with a voting conflict of interest the option of abstaining or of voting and disclosing the conflict. Therefore, we conclude that your action in voting and filing a disclosure memorandum was proper. As you had agreed to purchase space for your law office in the building, we believe that you had a personal interest in matters affecting the construction of the office building and we believe that the matter could be said to have inured to your special private gain.

Accordingly, we find that your actions in voting upon the request for variances concerning the office building and then filing a memorandum disclosing the conflict of interest were in accordance with Section 112.3143, Florida Statutes.