CEO 86-68 -- September 17, 1986

VOTING CONFLICT OF INTEREST

CITY PLANNING BOARD MEMBER EMPLOYED BY LOCAL CHAMBER OF COMMERCE

To: Ms. Marie Hartman, Assistant City Attorney, City of Daytona Beach

SUMMARY:

A city planning board member who is employed by a local chamber of commerce is not prohibited by Section 112.3143, Florida Statutes, from voting on an application where a member of the chamber's board of governors or executive committee is the applicant, is employed by the applicant, is an attorney representing the applicant, or is an attorney whose law firm is representing the applicant. Under these circumstances, the measure under consideration would not inure to the special private gain of the planning board member, or to the special gain of the principal by whom the board member is retained, the chamber of commerce. However, the board member would be permitted to abstain from voting on these matters by Section 286.012, Florida Statutes.

QUESTION:

Is a city planning board member who is employed by a local chamber of commerce prohibited by Section 112.3143, Florida Statutes, from voting on an application where a member of the chamber's board of governors or executive committee is the applicant, is employed by the applicant, is an attorney representing the applicant, or is an attorney whose law firm is representing the applicant?

Your question is answered in the negative.

In your letter of inquiry you advise that Mr. Hulsey A. Bray, Jr., serves as a member of the Daytona Beach Planning Board, which reviews all land development regulations and zoning matters for the City. You also advise that he is employed as the Executive Vice President/Executive Director of the local Chamber of Commerce, a nonprofit corporation seeking to preserve the competitive enterprise spirit and to promote business and community growth and development. In that position he acts as the chief executive and administrative officer in charge of operations and is directly responsible to the Board of Governors of the Chamber. His employment is based on an annual contract which is terminable by either party on six months notice without cause.

The governing and policy making responsibilities of the Chamber are vested in a Board of Governors consisting of persons elected or appointed from the general membership of the Chamber, as well as certain past and present officers of the Chamber and representatives of various other business organizations operating in the area. There is an executive committee which acts on behalf of the Board of Governors when the Board is not in session and which is accountable to the Board for its actions. The executive committee consists of select past and present officers, all of whom sit on the Board of Governors. The Executive Vice President is an ex officio nonvoting member of the executive committee and Board of Governors.

You question whether the Planning Board member must declare a voting conflict and abstain from voting pursuant to Section 112.3143, Florida Statutes, where: the applicant is an individual who is a member of the Board of Governors or executive committee of the Chamber; the applicant is a business entity in which a member of the Board of Governors or executive committee either holds an ownership interest or serves as an officer; the applicant is represented by an attorney who is a member of the Board of Governors or executive committee; or the applicant is represented by an attorney of the firm of a member of the Board of Governors or executive committee.

The Code of Ethics for Public Officers and Employees provides in relevant part:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, 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. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one- acre, one-vote basis is not prohibited from voting. [Section 112.3143(3), Florida Statutes (1985).]

Under the situations you have presented, the measures coming before the Planning Board would not inure to the special private gain of the subject Planning Board member unless, of course, the measure were to involve property in which the Board member had an interest.

Nor do we find that these situations would inure to the special gain of a principal by whom the Board member is retained. A measure which inures to the special gain of one's employer inures to the special gain of a principal by whom he is retained. CEO 78-27. Further, where an individual was employed by a nonprofit organization we found his "principal" to be that nonprofit organization. CEO 78-92. Here, the Planning Board member's employer through a written employment agreement is the Chamber of Commerce. Therefore, unless the measure affects the interests of the Chamber, for example, a planning or zoning measure impacting property owned by the Chamber, the subject Board member would not be required to abstain.

As we noted in CEO 78-92, Section 286.012, Florida Statutes, authorizes a public officer to abstain in situations in which he has, or appears to have, a conflict of interest. Under the circumstances presented, we are of the opinion that the Board member would be permitted to abstain from voting by Section 286.012, Florida Statutes.

Accordingly, we find that the subject Planning Board member is not prohibited by Section 112.3143(3), Florida Statutes, from voting on matters involving members of the Chamber's Board of Governors or executive committee.