CEO 74-77 -- November 25, 1974
MUNICIPAL BOARDS
APPLICABILITY OF PART III, CH. 112, F. S., AS AMENDED BY CH. 74-177, LAWS OF FLORIDA, TO MEMBERS OF MUNICIPAL BOARDS
To: Jerry Pollock, City Attorney, Miramar
Prepared by: Gene L. "Hal" Johnson
SUMMARY:
The broad language of s. 112.312(7)(b), F. S., as amended by Ch. 74-177, Laws of Florida, brings within its purview governmental bodies at all levels of government, excluding only solely advisory boards. See CEO 74-5. Because of express mention of planning and zoning boards within s. 112.312(7)(i), F. S., members of the City of Miramar Advisory Planning, Zoning, and Variance Board are public officers within the meaning of part III, Ch. 112, F. S. See CEO 74-18. Similarly, the regulatory powers of the City Civil Service Board and Electrical Board bring members of those boards within the definition of "public officer" as used in part III, Ch. 112, supra. See CEO 74-31 and CEO 74-76. An officer cannot prevent the disclosure of a conflict of interest merely by absenting himself from a vote concerning the subject matter out of which the conflict arises. In order to follow the spirit and purpose of the law, a public officer must file with appropriate officials a statement explaining the voting conflict which exists, even when he is absent from the meeting in which the conflicting matter is voted upon by his fellow officers.
QUESTIONS:
1. Does s. 112.312(7)(b), F. S., as amended by Ch. 74-177, Laws of Florida, apply to municipal agencies and boards?
2. Are members of the City of Miramar Advisory Zoning, Planning, and Variance Board within the meaning of the term "public officer" as used in part III, Ch. 112, as amended by Ch. 74-177, Laws of Florida?
3. Are members of the city civil service board and the city contractors qualifying board, both of which make final decisions in their areas of jurisdiction, within the meaning of the term "public officer" as used in part III, Ch. 112, as amended by Ch. 74-177, Laws of Florida?
4. Does s. 112.314(2), F. S., regarding disclosure of voting conflicts of interest require an officer to file a statement of conflict even though he is absent from the meeting and therefore neither votes nor declines to vote?
5. Must CE Form 2, Quarterly Disclosure of Representations Before Agencies, be filed when no representations have been made during that quarter?
6. Do you publish your opinions in the same manner that the Attorney General publishes opinions?
Question 1 is answered in the affirmative.
Section 112.312(7)(b), supra, defines the term "public officer" to include:
Members of boards, commissions, authorities, special taxing districts, and the head of each state agency, however selected but excluding advisory board members.
We have consistently held that the terminology of s. 112.312(7)(b), supra, brings within its purview governmental bodies at all levels of government. See CEO 74-5. Only advisory boards are expressly excluded.
We therefore conclude that s. 112.312(7)(b), supra, reaches all municipal boards, commissions, and authorities except where they are solely advisory.
Your second question is answered in the affirmative.
Please find enclosed a copy of CEO 74-18 which states our position in regard to planning and zoning boards which are advisory in nature. Section 112.312(7)(i), supra. Your question is answered accordingly.
Question 3 is answered affirmatively.
Please find enclosed copies of CEO 74-31 and CEO 74-76 which state our position in regard to a Civil Service Board and an Electrical Board. Your question is answered accordingly.
Question 4 is answered in the affirmative.
The statutory provision at issue 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.]
While there is no explicit direction as to how matters of absence are to be handled in the situation contemplated by this provision, such guidance is not necessary. There is an accepted maxim of law which states that one cannot do indirectly that which he could not do directly. It is our view that this maxim is applicable to this situation.
An officer cannot prevent the disclosure of a conflict of interest merely by absenting himself from a vote concerning the subject matter out of which the conflict arises. If that were possible, the obvious purpose of this provision could be totally circumvented. An officer could influence his fellow members of the governmental body in regard to the matter and then, by absenting himself from the meeting, avoid disclosing the conflict. Neither the public nor his fellow officers would be informed of the conflicting interest of said officer; the provision, thus, could become ineffectual.
It is for this reason that we conclude that an officer must file with the appropriate officials a statement explaining the voting conflict which exists, even where he is absent from the meeting in which the conflicting matter is voted upon by his fellow officers.
Question 5 is answered in the negative.
Please find enclosed a copy of CEO 74-2 wherein we explained when CE Form 2 must be filed. Your question is answered accordingly.
At the present time we are providing copies of Ethics Commission opinions upon request. In the near future, however, we expect to follow a procedure similar to that of the Attorney General.