VOTING CONFLICT
CITY COMMISSIONER VOTING ON MEASURES
AFFECTING FORMER EMPLOYER
To: Mark Herron, Attorney for City Commissioner (Delray Beach)
SUMMARY:
A city commissioner is not presented with a voting conflict under Section 112.3143(3)(a), Florida Statutes, regarding measures affecting his former employer because the statute is phrased in the present tense. However, the commissioner may choose to abstain from voting under Section 286.012, Florida Statutes. CEO 77-183, CEO 78-96, CEO 79-31, CEO 80-75, CEO 84-1, CEO 85-14, CEO 87-14, CEO 06-5, CEO 08-11, and CEO 08-14 are referenced.
QUESTION:
Would a city commissioner be presented with a voting conflict regarding measures affecting a company which formerly employed him?
Under the circumstances presented, your question is answered in the negative.
By your letter of inquiry and telephone conversations between you and our staff, we are advised that Mack Bernard (Commissioner) serves as a member of the City Commission of the City of Delray Beach, having been appointed approximately six months ago. In addition, we are advised that prior to appointment, the Commissioner was employed by a development company (company);1 that upon appointment, he immediately resigned from the company; and that measures are expected to come before the City Commission that will affect the company or various affiliate entities of the company.2 Further, we are advised that the Commissioner holds no interest in the company; that neither he nor any member of his family will benefit in any way from the measures; and that he is not a "business associate," within the meaning of Section 112.312(4), Florida Statutes, of any principal of the company. Also, by telephone, you advised our staff that the company and its various affiliate entities have no current economic relationship (including, but not limited to, receipt of legal services or receipt of title insurance services) with the Commissioner or his business.
Thus, in behalf of the Commissioner, you inquire as to whether he can vote on the measures, and, if not, whether he can participate (other than voting) regarding the measures.
Section 112.3143(3)(a), Florida Statutes, the portion of the voting conflicts law, of the Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes), which is applicable to local, elected, public officers such as city commissioners, provides, with emphasis supplied:
VOTING CONFLICTS.--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.
Under the circumstances presented, we find that the Commissioner would not be presented with a voting conflict. The situation presented does not indicate that the Commissioner personally, his relatives,3 or his business associates would be affected by the measures. In addition, while the situation indicates that the company, with which the Commissioner previously was (but currently is not) connected, will be affected, we find, as we have before, that the law is "phrased in the present tense," requiring a current (an at-the-time-of-the-vote) relationship between the officer and the affected persons or entities. See, among others, CEO 77-183 (water management district board member voting on surface water permit for entity formerly retaining his engineering services), CEO 78-96 (city councilman voting on matters affecting potential clients of his real estate firm), CEO 79-31 (city planning commission member voting on matter affecting person with whom he has occasionally subcontracted), CEO 80-75 (municipal board of adjustment member voting on variance request for project he was involved in as an architect), CEO 84-1 (applicant not a client of county commissioner's engineering/surveying firm at time of vote on rezoning or platting), CEO 85-14 (county commissioner accountant who prepared income tax return for person who may or may not ask him to prepare return the following year), and CEO 06-5 (city commissioner voting on measures affecting horsetrack which seasonally employs him). Also, see CEO 08-14.
Accordingly, under the facts presented, we find that the Commissioner is not presented with a voting conflict under Section 112.3143(3)(a), Florida Statutes,4 regarding measures of the City Commission which would affect a company formerly employing him.5
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 24, 2009 and RENDERED this 27th day of April, 2009.
____________________________________
Cheryl Forchilli, Chair
[1] Via telephone conversation with our staff, you elaborated that the Commissioner was not an officer, director, or shareholder of the company. Rather, you advise, he was employed for one month as corporate counsel for the company, and that before his employment, he provided legal services ("closings attorney") for the company, for approximately one year, as an independent contractor.
[2]By telephone, you detailed that the measures likely to be voted on involve site plan approvals, development orders, and similar items for a City CRA project known as the Villages at Delray. Further, unrelated to the project, you advise that the company has several private properties regarding which it likely will be seeking approvals, orders, and similar items from the City Commission.
[3]Your inquiry states that neither the Commissioner nor any member of his family ["relative" as defined in Section 112.3143(1)(b), Florida Statutes] will "benefit" from the measures. For purposes of this opinion, we understand you to mean that the measures will not inure to the special private gain or loss of either the Commissioner or any relative of his.
[4]Section 112.3143, Florida Statutes, does not address, restrict, or guide "participation" by elected officers; rather, Section 112.3143(4), Florida Statutes, applies additional requirements to appointed officers. See CE Form 8B. Further, notwithstanding his "appointment" to office, the Commissioner holds an "elective" office not subject to Section 112.3143(4). CEO 87-14. Section 112.3143(4) provides, with emphasis supplied:
(4) No appointed public officer shall participate in any matter which would inure to the officerĘs special private gain or loss; which the officer 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; 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, without first disclosing the nature of his or her interest in the matter.
a) Such disclosure, indicating the nature of the conflict, shall be made in a written memorandum filed with the person responsible for recording the minutes of the meeting, prior to the meeting in which consideration of the matter will take place, and shall be incorporated into the minutes. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.
(b) In the event that disclosure has not been made prior to the meeting or that any conflict is unknown prior to the meeting, the disclosure shall be made orally at the meeting when it becomes known that a conflict exists. A written memorandum disclosing the nature of the conflict shall then be filed within 15 days after the oral disclosure with the person responsible for recording the minutes of the meeting and shall be incorporated into the minutes of the meeting at which the oral disclosure was made. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.
(c) For purposes of this subsection, the term 'participate' means any attempt to influence the decision by oral or written communication, whether made by the officer or at the officer's direction. [5]While not required under Section 112.3143(3)(a), under the situation presented, the member may wish to abstain under Section 286.012, Florida Statutes. CEO 08-11.