CEO 98-15 -- October 22, 1998
VOTING CONFLICT OF INTEREST
COUNTY PUBLIC TRANSPORTATION COMMISSIONER VOTING ON MATTER
INVOLVING AMBULANCE COMPANY WHERE HALF-OWNER OF COMPANY
IS CLIENT OF COMMISSIONER'S BROKERAGE FIRM
To: Mr. James D. Palermo, City Attorney (Tampa)
SUMMARY:
The voting conflict law (Section 112.3143(3), Florida Statutes) would require a county public transportation commissioner to abstain from
voting and file the appropriate memorandum of voting conflict when issuing permits to an ambulance company which was half-owned by the
commissioner's client. The client would be considered a principal retaining the commissioner/investment broker and, because of the client's
sizable interest in the ambulance company, a vote that inured to the benefit of the ambulance company also benefited its two owners.
QUESTION:
Does a member of a county public transportation commission have a voting conflict under Section 112.3143(3), Florida Statutes, when, as an investment broker, the commissioner held a brokerage account for an individual who owns 50 percent of the stock in a company seeking ambulance permits from the commission?
Under the circumstances presented, your question is answered in the affirmative.
In your letter of inquiry and through supplemental information provided to our staff, we are advised that you seek this opinion on behalf of Mr. Rudolph Fernandez, who is an elected member of the Tampa City Council and who also sits on the Hillsborough County Public Transportation Commission. The Commission was created by special act of the Legislature for the purpose of regulating and permitting taxis, wreckers, and ambulance service in Hillsborough County. You relate that the Commissioner in his private capacity is a self-employed investment broker and that one of his clients is an individual who also serves as the Tampa City Council Attorney. We note that the City Council Attorney is an independent position created by City Charter to advise the City Council and is separate from the City Attorney position held by you. You further advise that the City Council Attorney is one of two stockholders in a corporation that submitted an application to the County Public Transportation Commission for basic life support ambulance permits. You question whether the County Public Transportation Commissioner was faced with a voting conflict of interest when voting on matters involving the corporation's permit applications, where the Commissioner's client owns 50 percent of the company seeking the permits.
Section 112.3143(3), Florida Statutes, the Avoting conflicts law, provides:
No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(3); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her 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(3)(a), Florida Statutes (1997).]
Section 112.3143(3) prohibits local public officers from voting in certain situations, including when the matter before them inures to either their special private gain or loss or to the special private gain or loss of a principal by whom they are retained.
There is no indication that voting on the corporation's permit application inured to the Commissioner's special private gain or loss. The question, then, is whether it inured to the special private gain or loss of a principal by whom the Commissioner was retained. In our view, a stock broker's client is his principal. Thus, the City Council Attorney/client of the Commissioner was his principal for purposes of Section 112.3143(3), Florida Statutes. The next question, then, is whether the Commissioner's vote to issue a permit to the ambulance company owned in part by the City Council Attorney inured to his principal's special private gain or loss. We are advised that the ambulance company that applied for the permits is a closely held corporation with two stockholders and that each stockholder owns 50 percent of the company's stock. In our view, issuing ambulance permits to the company inured to its special private gain. In several opinions, we have suggested that a voting conflict could be created where the interests of individual clients are so intertwined with those of a corporation--such as where the individual is the sole owner of a corporation--that a measure which inured to the gain of the corporation would also inure to the gain of the individual. See CEO 97-4 and CEO 91-20, Question 3. Here, two individuals own all of the company's stock. Thus, based upon the rationale stated in these two opinions and upon the circumstances presented, we are of the view that the Commissioner should have abstained from voting and filed a memorandum of voting conflict (CE Form 8B) when the County Public Transportation Commission issued permits to an ambulance company where half of the company was owned by his client.
ORDERED by the State of Florida Commission on Ethics meeting in public session on October 22, 1998 and RENDERED this 27th day of
October, 1998.
__________________________
Charles A. Stampelos
Chairman