CEO 00-8 -- April 20, 2000
VOTING CONFLICT OF INTEREST
AIRPORT AUTHORITY COMMISSIONER VOTING ON MATTER INVOLVING AIRPORT LESSEE WHOSE SPOUSE WAS FORMERLY EMPLOYED BY ATTORNEY ASSOCIATED WITH COMMISSIONER’S LAW FIRM
TO: Frank X. Kowalski, Esquire (Naples)
SUMMARY:
Section 112.3143(3), Florida Statutes, would not be violated where an airport authority commissioner votes on a matter involving a lessee of the airport authority and where the lessee’s wife was formerly employed as a legal secretary for an attorney who was associated with the commissioner’s law practice prior to his resignation from the Florida Bar for trust account violations. Voting on the lease would not inure to the special private gain or loss of the commissioner or any relative, principal, or business associate, and the suggestion that the commissioner’s vote could affect testimony the lessee’s wife might offer in some future, unanticipated legal proceeding is remote and speculative. Additionally, any bias or prejudice the commissioner may have stemming from the lessee’s wife’s employment with the former attorney would not constitute a voting conflict under Section 112.3143(3), Florida Statutes, which addresses personal, pecuniary benefits. The opinion also examines the applicability of Sections 112.313(6) and 286.012, Florida Statutes, which were suggested by the lessee as mandating the commissioner’s recusal.
QUESTION:
Does the Code of Ethics require an Airport Authority Commissioner to abstain from voting on a lease where the lessee’s wife was formerly employed as a legal secretary for an attorney who was associated with the Commissioner’s law firm before he resigned from the Florida Bar due to trust account improprieties?
Under the circumstances presented, your question is answered in the negative.
In your correspondence with our staff, we are advised that you seek this advisory opinion on behalf of Louis X. Amato, who serves as a member of the Naples Airport Authority’s Board of Commissioners. In your letter, you explain that the Commissioner is an attorney in a private law firm which, at the time in question, was actually a consortium of professional associations, not a true partnership. An attorney whose professional association was associated with this law practice was disciplined by the Florida Bar for misappropriating funds from his trust account. The impropriety was initially discovered and referred to the Bar by the Commissioner, and the attorney ultimately resigned from the Bar. The attorney’s secretary, who was never an employee of the Commissioner’s law firm, subsequently became unemployed when her employer resigned from the Bar. This same individual is married to the owner of a business leasing space from the Airport Authority.
The lessee is interested in entering into a new lease with the Airport Authority and has asked that the Commissioner recuse himself from voting on matters involving his lease. He has made various allegations concerning his wife’s employment with the law firm and the trust account matter, and speculates that the Commissioner’s law firm may face civil liability for losses sustained as a result of the attorney’s misconduct. He further suggests, through his attorney, that the Commissioner’s vote in favor of the lease could engender his wife’s favorable testimony in some future legal proceeding or be viewed as such, although you advise that no such proceeding exists or is anticipated. Thus, you question whether, under these circumstances, the Commissioner is required to abstain from voting when matters involving the lessee come before the Authority. The lessee has suggested that the Commissioner should recuse himself from voting on the basis of Sections 112.313(6) and 286.012, Florida Statutes.
The provision which governs voting conflicts of interest--Section 112.3143(3), Florida Statutes--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(2); 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) requires a local public officer to abstain from voting in certain situations, including when the matter he is voting on inures to his special private gain or loss or to the special private gain or loss of a principal by whom he is retained.
With regard to the suggestion that the Commissioner might, in the future, benefit from favorable testimony by the former secretary if he votes a certain way as a member of the Authority, the question that the voting conflicts law poses is whether the approval of the lease inures to the Commissioner’s special private gain or loss or to the special private gain or loss of his principals, relatives, or business associates. If not, then to speculate over whether the vote might engender goodwill or favorable testimony in the future, in another forum, would be well beyond the purview of Section 112.3143(3), Florida Statutes, and would be, at best, remote and speculative and not a voting conflict under our precedent. See CEO 94-16 and the opinions cited therein.
Moreover, we have opined that recusal/abstention is not required under Section 112.3143(3) where a public official votes on a matter that does not inure to his special private gain or loss but where the public official may have some personal bias or prejudice concerning a person or issue coming before his public body. See CEO 79-14, in which a city council member was faced with a vote on a bank application and where he had previously had a physical altercation with an officer of the bank. No voting conflict was found in that situation. Nor was a voting conflict found in CEO 86-57, in which a county commissioner was faced with a vote on a concealed weapons license, the applicant for which previously had sued the commissioner, who was obligated to spend personal funds in defense of the lawsuit. Those and other opinions recognize that bias and prejudice are not the standards for determining whether a public officer has a voting conflict of interest under Section 112.3143(3), Florida Statutes. See also CEO 95-17. Rather, the question is whether there is some personal, pecuniary benefit to the public officer or his principals, relatives, or business associates. Here, there is nothing to suggest that a vote concerning the lessee or his lease with the Authority would inure to the Commissioner’s special private gain or loss. Therefore, no voting conflict of interest under Section 112.3143(3), Florida Statutes, is created under the circumstances you describe.
With regard to whether his voting could violate Sections 112.313(6) or 286.012, Florida Statutes, Section 112.313(6) prohibits a public officer from using or attempting to use his office to obtain a special privilege or benefit for himself or others where his actions are undertaken with a “corrupt” or wrongful intent. This provision requires an examination of intent, which is not something that can be undertaken in the context of an advisory opinion. However, there is nothing in your inquiry that would suggest that the Commissioner’s vote on the lease would provide him with a special privilege or benefit, and there are no circumstances which suggest that voting as a member of the Authority would be “corrupt” or inconsistent with the proper performance of the Commissioner’s public duties.
Nor would Section 286.012, Florida Statutes, compel the Commissioner’s recusal from voting on the lease. That provision requires a public officer to vote except when “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.” As has already been concluded, the circumstances do not suggest a conflict under the Code of Ethics, and Section 286.012 does not mandate a public officer’s abstention in the absence of an actual conflict. Although some public officers do choose to abstain from voting when it is a “close question” but not an actual conflict, abstention is permissive, not mandatory, under Section 286.012, Florida Statutes. Therefore, whether the Commissioner chooses to abstain under the circumstances you have related is a personal decision for him to make but is not required by law.
Accordingly, we find under the circumstances presented that Section 112.3143(3), Florida Statutes, would not be violated were the Commissioner to vote on matters involving a lessee of the Airport Authority.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 18, 2000 and RENDERED this 20th day of April, 2000.
__________________________
Peter M. Dunbar
Chair