CEO 75-20 -- February 5, 1975

MUNICIPAL CODE PROVISIONS

CONFLICT WITH PART III, CH. 112, F. S., AS AMENDED BY CH. 74-177, LAWS OF FLORIDA

To: Walter C. Shepard, City Attorney, City of Rockledge

Prepared by: Patricia Butler

SUMMARY:

In Rinzler v. Carson, 262 So.2d 661, 668 (Fla. 1972), and City of Wilton Manors v. Starling, 121 So.2d 1972 (2 D.C.A. Fla., 1960), the courts ruled that state statutes control over municipal codes and that a municipality cannot authorize what the Legislature has forbidden. While the Rockledge City Code, s. 2-32 prohibits a public officer from participating in matters where there is conflict of interest, Florida law allows the public officer to vote but requires full written disclosure of the conflict of interest [s. 112.314(2), F. S., as amended by Ch. 74-177, Laws of Florida]. Accordingly, a Rockledge public officer faced with a voting conflict of interest may either vote or abstain from voting, but in either case he or she must file CE Form 4, Disclosure of Conflicts of Interest by a Public Officer in Voting Situations. A municipality may adopt a code of ethics more stringent than, or with provisions differing from, the state statutes so long as its provisions do not conflict with those of the Florida Statutes.

QUESTIONS:

1. Where there is a contradiction between a provision of the Rockledge City Code and part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida, as to voting on issues which create a conflict of interest, does the state law supersede the municipal ordinance?

2. May the City of Rockledge adopt its own code of ethics which would expressly prohibit a public officer from voting on issues which present a conflict of interest?

Question 1 is answered in the affirmative.

The Rockledge City Code, s. 2-32, prohibits public officers from participating in a matter in which they have a conflict of interest. The 1974 Legislature enacted a general law dealing with this subject which states:

No public officer shall be prohibited from voting on any matter in his official capacity. However, when the matter being considered directly or indirectly inures to the public officer's particular private gain, as opposed to his private gain as a member of a special class or creates a conflict between such officer's private interests and his public duties he may abstain from voting on the matter and shall file a statement explaining the conflict with the appropriate officials. [Section 112.314(2), supra.]

The apparent contradiction in these provisions is the requirement under the municipal code prohibiting public officers from voting in a conflict situation, while the applicable Florida Statute allows a public officer to vote in such a situation but requires a written disclosure of the conflict. In such instances, the state law is superior to the local law.

In Rinzler v. Carson, 262 So.2d 661, 668 (Fla. 1972), the court stated:

Municipal ordinances are inferior in stature and subordinate to the laws of the state. Accordingly, an ordinance must not conflict with any controlling provision of a state statute, and if any doubt exists as to the extent of a power attempted to be exercised which may affect the operation of a state statute, the doubt is to be resolved against the ordinance and in favor of the statute. A municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden. (Emphasis supplied.)

See also City of Wilton Manors v. Starling, 121 So.2d 172 (2 D.C.A. Fla., 1960).

It seems clear from the foregoing that the state statute, s. 112.312(2), supra, must control over the municipal code provision in this case. Accordingly, a public officer who serves on a body which takes official action by voting has two options under s. 112.314(2), supra, when faced with a conflict of interest: The officer may either vote on the issue or abstain from voting. This choice is left entirely in the discretion of the officer. Whether the officer decides to vote or not, however, he is required to file CE Form 4, Disclosure of Conflicts of Interest by Public Officers in Voting Situations, and must explain the nature of the conflict therein.

Question 2 is answered in the negative.

A municipal code of ethics which prohibits a public officer from voting in a conflict of interest situation is in conflict with the state Code of Ethics. Therefore, such a code would be invalid to the extent that it conflicts with part III, Ch. 112, F. S. See question 1, supra.

This is not meant to imply that a municipality may not adopt a more stringent code of ethics than that set forth in part III, Ch. 112, supra. See Anderson v. City of Tampa, 164 So. 546 (Fla. 1935), in which the municipal code was upheld which was stricter in its terms than a state statute dealing with the same subject. In addition, a municipality could adopt a code of ethics with different types of provisions than those set forth in part III, Ch. 112, supra, or with more relaxed requirements than those of the state law. It should be noted, however, that any municipal code of ethics enacted must not conflict with part III, Ch. 112, supra. Furthermore, the public officers, state and local, are subject to the requirements of state law regardless of any code of ethics enacted by a municipality.