CEO 76-24 -- February 13, 1976

VOTING CONFLICT OF INTEREST

CITY COUNCILMAN VOTING TO LEASE PROPERTY TO CHAMBER OF COMMERCE OF WHICH HE IS A MEMBER

To: L. B. Vocelle, Attorney, City of Sebastian

Prepared by: Gene Rhodes

SUMMARY:

Florida Statute s. 112.3143 (1975) provides that no officer shall be prohibited from voting on any matter in his official capacity. Where a vote involves an issue in which he has a private interest which inures to his private gain, or to the gain of a client, he is required to disclose such conflict via the filing of CE Form 4, Memorandum of Voting Conflict, with the person responsible for recording the minutes of the meeting at which the vote took place. Where a city councilman who is a member of the area chamber of commerce is called upon to vote on whether the city should lease property to the chamber of commerce, no conflict requiring disclosure exists for such vote would not inure to the councilman's special private gain or to the gain of one who retains him. Where a councilman has privately offered the chamber of commerce a building site for a fee, no voting conflict requiring disclosure would exist, for the outcome of the council's vote in the matter would not necessarily benefit the subject councilman in his private capacity.

QUESTIONS:

1. Does the Code of Ethics for Public Officers and Employees prohibit a city councilman from voting on whether to lease property to the area chamber of commerce where that councilman is an active member of the chamber of commerce?

2. Would voting on the matter set forth in question 1 above require the subject city councilman to file a Memorandum of Voting Conflict, CE Form 4?

3. Would voting on the matter described in question 1 above require a city councilman to file a Memorandum of Voting Conflict, CE Form 4, where he has privately offered the chamber of commerce a building site for a fee?

4. Would voting on the matter set forth in question 1 above require either the mayor or the subject city councilman to file a Memorandum of Voting Conflict, CE Form 4, where one of these individuals votes on matters before the chamber of commerce on behalf of the city?

5. If the majority of the Sebastian City Council members are prohibited from voting on the proposed lease referred to in question 1 above, what procedure should be followed for a decision on the matter?

Question 1 is answered in the negative.

Your letter of inquiry advises us that the subject councilman is privately an active member of the area chamber of commerce but is not an officer of that organization. The Code of Ethics for Public Officers and Employees states 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 which inures to his special private gain, or the special gain of any principal by whom he is retained, shall 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. [Fla. Stat. s. 112.3143(1975).]

Thus, under no circumstances would the subject councilman be required to abstain from voting.

Question 2 is answered in the negative.

As stated in question 1 above, the subject councilman is privately an active member of the chamber of commerce. The provision quoted in question 1 above requires that one file a Memorandum of Voting Conflict, CE Form 4, when he votes on any measure in which he has a personal, private, or professional interest which inures to his special private gain, or the special gain of one by whom he is retained. In our view it would not inure to the councilman's special private gain if the city were to lease the property to the chamber of commerce, and therefore he is not required to file CE Form 4 after voting on the matter described above.

Question 3 is answered in the negative.

You have advised us that the subject councilman has offered the chamber of commerce a building site for a fee which offer would be preempted if approval is given to the lease arrangement with the city. A vote in favor of the proposed lease would be a vote against the subject councilman's interest and conversely a negative vote could ultimately result in approval of the alternative site in which the councilman has a financial interest at stake. It does not appear from the information given that a negative vote on the lease proposal would effectively give approval to the alternate site offered.

Florida Statute s. 112.3143 (see full text in question 1 above) requires the disclosure of a voting conflict where one casts a vote on a measure in which he has a "personal, private, or professional interest which inures to his special private gain or the special private gain of any principal by whom he is retained." The factor which creates a duty to file a memorandum of voting conflict is not the nature of the official's vote, i.e., "for" or "against" the measure, but is whether the interest which he holds is such that he (or his client) would stand to gain or lose as a direct result of the outcome of the board's decision.

In the situation before us, we must conclude that no disclosure is required since the council's decision on the lease proposal will not necessarily inure to the subject councilman's special private gain regardless of what that decision might be. Accordingly, it is our opinion that the subject councilman need not file Form 4, a Memorandum of Voting Conflict, when voting upon the lease proposal.

Question 4 is answered in the negative.

Your letter of inquiry advises us that the mayor or the subject councilman, neither of whom are members of the chamber of commerce, have been designated to vote for the city on matters before the chamber of commerce. This question is similar to question 2 above in that the lease proposal at issue would not inure to the special private gain of either the mayor or councilman as a result of their action in voting on the matter. Accordingly, the essential prerequisite to the filing of Form 4 does not exist.

Question 5 is moot since, as indicated in reply to question 2 above, "[n]o public officer shall be prohibited from voting in his official capacity on any matter." Fla. Stat. s. 112.3143(1975).