CEO 82-64 -- July 29, 1982

CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST

CITY PARKS AND RECREATION COMMISSION MEMBERS SERVING ON BOARD OF DIRECTORS OF LITTLE LEAGUE ORGANIZATION AND HOMEOWNERS ASSOCIATION

To: Ms. Jennifer Hurst, City Attorney, City of North Miami

SUMMARY:

No prohibited conflict of interest exists where a member of a city parks and recreation commission is a member of the board of directors of a little league organization which receives funds from the city council. CEO 82-22 is referenced. However, a voting conflict of interest would be created under Section 112.3143, Florida Statutes, where a parks and recreation commission member votes on a recommendation to continue city funding to a little league organization of which she is a member of the board of directors. In such a situation, a Memorandum of Voting Conflict, CE Form 4, should be filed with the person responsible for keeping the minutes of the meeting in accordance with Section 112.3143, Florida Statutes.

No prohibited conflict of interest exists where a member of a city parks and recreation commission serves on the board of directors of a homeowners association for an area of the city which would benefit from the expenditure of city funds. It does not appear that the homeowners association is subject to the regulation of, or is doing business with, the city. A voting conflict of interest under Section 112.3143, Florida Statutes, would be created were a member of a parks and recreation commission to vote on a recommendation for the expenditure of funds in the geographic area served by the homeowners association of which he is a member of the board of directors. Here, it appears that such an expenditure would inure to the special private gain of a commission member residing in the area which primarily would be benefited. Therefore, if the member votes, he should file a Memorandum of Voting Conflict, CE Form 4, in accordance with Section 112.3143, Florida Statutes.

QUESTION 1:

Does a prohibited conflict of interest exist where a member of a city parks and recreation commission is a member of the board of directors of a little league organization which receives funds from the city council?

This question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff you advise that Mrs. Terry Allison, a member of the City of North Miami Parks and Recreation Commission, is on the board of directors of a little league organization which requests funds from the City Council. She receives no compensation from serving on the board of directors of that organization. As a member of the Parks and Recreation Commission, she is in a position to vote on a recommendation that the City Council continue to fund the little league organization. The City is under no obligation to provide any funding to the organization or to others like it; the City's contribution is purely discretionary.

In our view, the issues raised in this question are substantially the same as those treated in a previous opinion, CEO 82-22. Accordingly, under the rationale of that opinion, we find that no prohibited conflict of interest is created where a member of the Parks and Recreation Commission also serves on the board of directors of a little league organization which is funded by the City Council.

QUESTION 2:

Is a voting conflict of interest created under Section 112.3143, Florida Statutes, where a parks and recreation commission member votes on a recommendation to continue city funding to a little league organization of which she is a member of the board of directors?

This question is answered in the affirmative.

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, with 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 (1981).]

Under this provision, no public officer can be prohibited from voting upon any measure; however, if the official votes on a measure which involves a conflict of interest as described by the statute, the official must file a memorandum of voting conflict.

Generally, the directors of a corporation are agents of the corporation and occupy a quasi-fiduciary relationship with the corporation. 8 Fla. Jur. 2d Business Relationships, Sections 295 and 302. We are of the opinion that as a director of the little league organization, the subject Commission member would have a personal or private interest in the recommendation that the City Council continue to fund the little league. In addition, it appears that such a measure would inure to the special gain of a principal by whom she is retained -- the little league organization.

Accordingly, we find that if the subject Commission member votes on a recommendation regarding funding of the little league organization, she should file a Memorandum of Voting Conflict (CE Form 4) with the person responsible for keeping the minutes of the meeting, in accordance with Section 112.3143, Florida Statutes. As an alternative, the subject Commission member may abstain from voting under the authority of Section 286.012, Florida Statutes. Please be advised that we have no authority to interpret a City Code provision regarding voting conflicts. In this respect we would direct your attention to CEO 75-20 and CEO 77-56.

QUESTION 3:

Does a prohibited conflict of interest exist where a member of a city parks and recreation commission serves on the board of directors of a homeowners association for an area of the city which would benefit from the expenditure of city funds?

This question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advise that Dr. Macy Sezzin, a member of the City Parks and Recreation Commission, also serves on the board of directors of a local homeowners association. You further advise that the Commission is considering recommending the expenditure of funds in the geographic area served by the association, primarily benefiting the homes located within the area served by the homeowners association. Service on the board of directors of the association is uncompensated, you advise.

Under these circumstances, we find that no provision of the Code of Ethics would be violated, as the homeowners association is not receiving any funds from the City. Accordingly, we find that no prohibited conflict of interest would be created were the subject Commission member to serve on the board of directors of the homeowners association.

QUESTION 4:

Would a voting conflict of interest be created under Section 112.3143, Florida Statutes, were a member of a parks and recreation commission to vote on a recommendation for the expenditure of funds in the geographic area served by a homeowners association of which he is a member of the board of directors?

This question is answered in the affirmative.

Under Section 112.3143, we believe that a Parks and Recreation Commission member would have a personal or private interest in the expenditure of City funds in the geographical area which includes his home, where that expenditure would benefit primarily the homes located within the area served by the homeowners association of which he is a director. While it does not appear that the decision to expend funds in this manner would inure to the special gain of the homeowners association, which apparently will not directly benefit from the expenditure, it appears that such an expenditure would inure to the special private gain of a Commission member residing in the area which primarily would be benefited.

Accordingly, we find that should the subject Parks and Recreation Commission member vote on a recommendation concerning an expenditure of funds which would primarily benefit the homes located within the area of his residence, he should file a Memorandum of Voting Conflict (CE Form 4) in accordance with Section 112.3143, Florida Statutes. As an alternative, he may abstain from voting as provided in Section 286.012, Florida Statutes.