CEO 77-183 -- December 14, 1977

VOTING CONFLICT OF INTEREST

MEMBER OF BOARD OF GOVERNORS OF WATER MANAGEMENT DISTRICT AND CHAIRMAN OF SUB-BASIN BOARD ALSO HEAD OF COMPANY PERFORMING WORK FOR TRUSTEES OF CORPORATION WHICH MAY SEEK A PERMIT FROM THE DISTRICT

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

Prepared by: Phil Claypool

SUMMARY:

A member of the governing board of a water management district who also serves as chairman of a sub-basin board would not have a voting conflict of interest under s. 112.3143, F. S., when called upon to vote on a permit sought by bankruptcy trustees of a corporation for which his private business had performed consulting work in the past. Under terms of s. 286.012, however, he is entitled to abstain from voting on the matter because of the appearance of a conflict of interest or because he feels that he cannot be independent and impartial in arriving at his vote. The Code of Ethics for Public Officers and Employees does not directly address the issue of his participation in discussions and formal deliberations. Therefore, no conflict is deemed to be created so long as such participation falls short of a corrupt misuse of public position as prohibited by s. 112.313(6), F. S.

QUESTION:

What would be my standard of duty if the bankruptcy trustees of a corporation for whom my company had performed consulting work were to seek a permit from a water management district on whose board of governors I sit, and where I also serve as chairman of the sub-basin board which would advise the district on the permit?

In your letter of inquiry and in a telephone conversation with our staff you advise that you are the head of a consulting engineering company which has performed work for the bankruptcy trustees of a large development corporation in regard to one of its developments. You also advise that your firm is not presently retained by the trustees but in the past has investigated flooding in the development, taken inventory of the development's roads and canals, and prepared applications to the county for acceptance of those roads and canals not previously accepted. You are of the opinion that, in order to improve drainage in the development, the trustees possibly will have the development's canals cleaned out, which probably will require a surface water permit from the water management district board on which you sit. In addition, you sit as the ex officio chairman of the board of the sub-basin in which the development lies. If the trustees apply for a permit from the water management district, the basin board will advise the district as to local sentiment concerning the permit.

In regard to your voting on any measure affecting the trustees and their application for a permit, the Code of Ethics for Public Officers and Employees provides:

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.]

Under the circumstances you have outlined, you would not have a voting conflict pursuant to the above provision when the district board or the basin board votes on the permit unless you were at the time of the vote retained by the trustees to perform work for them. The fact that you had been retained by the trustees in the past has no bearing on the application of this provision, which speaks in the present tense.

Also, in regard to your voting upon a measure affecting the trustees and their application for a permit, s. 286.012, F. S. 1975, provides that a public officer may abstain from voting when he has or appears to have a possible conflict of interest. Two previous advisory opinions relating to this section, CEO's 77-119 and 77-123, are enclosed for your further information. Thus, under the terms of s. 286.012, if the trustees apply for a permit from the district board, you are entitled to abstain from voting because of the appearance of a conflict of interest or because you feel that you cannot be independent and impartial.

In regard to your participation as a member of either board in discussions concerning an application for a permit from the trustees or in other, less formal deliberations about the drainage situation in the development, there is no provision of the Code of Ethics which provides specific guidelines for your conduct. The provisions regarding voting, ss. 112.3143 and 286.012, by their terms do not apply directly to situations where no vote is taken. Nor would s. 112.313(7)(a), F. S. 1975, apply. That section prohibits a public officer from having a contractual relationship with a business entity which is subject to the regulation of his agency but has no application where the officer's contractual relationship terminated prior to the time the entity was regulated by the agency. Thus, the only provision of the Code of Ethics that would bear on this aspect of your public duties is s. 112.313(6), F. S. 1975. That section provides a general, minimal standard to which all public officers must conform their conduct:

MISUSE OF PUBLIC POSITION. -- No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. . . .

Accordingly, we see no breach of the Code of Ethics were you to abstain from participating in these discussions because of the appearance of a conflict of interest or were you to participate in the discussions, so long as your participation falls short of corruptly misusing your public position.