CEO 82-74 -- September 20, 1982

VOTING CONFLICT OF INTEREST

CITY COMMISSIONER PRESIDENT OF BROADCAST AND CABLE TELEVISION COMPANY DISCUSSING AND VOTING REGARDING CITY CABLE FRANCHISE

To: Mr. Mark Kane Goldstein, City Commissioner, City of Gainesville

SUMMARY:

No voting conflict of interest would be created were a city commissioner who also is president of a broadcast and cable television company to participate in discussion and voting regarding the city's cable television franchise. Here, the commissioner's company has no interest in the city's cable television franchise, but may have a future interest in other areas of the county and presently has a broadcast pay television station in the vicinity. Previous opinion 80-3 is referenced, holding that the fact that a commissioner might gain by a competitor's loss is too speculative to require the filing of a memorandum of voting conflict under Section 112.3143, Florida Statutes.

QUESTION:

Would a voting conflict of interest be created were you, a city commissioner who is also president of a broadcast and cable television company, to participate in discussion and voting regarding the city's cable television franchise?

Your question is answered in the negative.

In your letter of inquiry you advise that you are both a City Commissioner of the City of Gainesville and the President and Chairman of the Board of Directors of a company which holds some municipal franchises in cable and broadcast television in other cities. You advise that your company has no interest in the City's cable television franchise, which expires next year, but may have a future interest in other areas of the County. In addition, you advise that your company presently has a broadcast pay television station in the Gainesville vicinity which serves principally the uncabled area.

Section 112.3143, Florida Statutes, provides:

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 and 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. [Section 112.3143, Florida Statutes (1981).]

This provision requires a public officer to file a memorandum of voting conflict if he votes on a measure in which he has a personal, private, or professional interest and if that measure inures to his special private gain or the special gain of any principal by whom he is retained.

From the facts you have outlined, it appears that your company might benefit by your vote only through the possibility that a competitor might be hurt. In a previous advisory opinion, CEO 80-3, we advised that the fact that a city commissioner might gain by a competitor's loss is too speculative to require the filing of a memorandum of voting conflict. In that opinion we also said that whatever gain the commissioner might receive by denying a competitor's request would not constitute "special gain," as all of the competitors of the requesting company seemingly would share in that benefit. The same rationale applies here. It seems to us too speculative to conclude that you would gain by virtue of any loss a competitor in the cable television business might suffer as a result of the City's action on the franchise. Moreover, even if you were to profit somehow by the City's action, such profit would appear not to constitute "special gain," as all of the requesting company's other competitors would also gain by that company's loss.

There is no provision within the Code of Ethics which specifically addresses your participation in discussions relating to the cable television franchise. Therefore, in this aspect of your conduct as a public officer, as in all other aspects, you should be guided by the following general prohibition:

MISUSE OF PUBLIC POSITION. -- No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes (1981).]

Accordingly, we find that no voting conflict of interest would be created were you to vote concerning the City's cable television franchise while serving as President of a broadcast and cable television company. As this opinion is based upon the facts presented, we suggest that you seek another opinion if your competitive situation changes.