CEO 94-18 -- April 21, 1994

VOTING CONFLICT OF INTEREST

COUNTY COMMISSIONERS VOTING ON RESOLUTION

OPPOSING PROMULGATION OF FEDERAL "CLUSTER RULES"

FOR PULP AND PAPER INDUSTRY WHERE COMMISSIONERS

ARE EMPLOYED AT LOCAL PAPER MILL OR HAVE RELATIVES

INVOLVED IN PULPWOOD INDUSTRY

To: Vance R. Howell, Chairman, Taylor County Board of County Commissioners (Perry)

SUMMARY:

County commissioners were not prohibited from voting on a resolution opposing regulations for the pulp and paper industry being proposed by the U. S. Environmental Protection Agency where they are employed by a paper mill which may be adversely affected by the regulations or where the spouse of one commissioner owns a logging business that contracts with a lumber company which supplies pulpwood to the mill. Under Section 112.3143(3), Florida Statutes, the measure would not inure to the commissioners' special private gain, to the private gain of their principal (the mill), or to the private gain of the spouse. The effect of the commission's resolution on EPA's final regulations and how those regulations will impact the local mill are too remote and speculative to find a special private gain under the circumstances. CEO's 91-61, 90-66 and 84-108 are referenced.

QUESTION:

Would a voting conflict of interest be created where members of a county commission who are employed by a local paper mill or who have relatives working in affiliated industries vote on a resolution opposing the U.S. Environmental Protection Agency's promulgation of "Cluster Rules" for the pulp and paper industry?

Your question is answered in the negative.

You advise that this opinion is sought on behalf of yourself and fellow Taylor County Board of County Commissioners Irvin Hill and Frank Russell. We are advised through your letter of inquiry and other information obtained by our staff that the U.S. Environmental Protection Agency (EPA) has proposed regulations for the pulp and paper industry which, if adopted, will affect standards applicable to wastewater discharges, air emissions, and other aspects of pulp and paper production operations. The 700-plus pages of proposed regulations, referred to as the "Cluster Rules," were published in the December 17, 1993 issue of the Federal Register. We are further advised that the rule promulgation process includes a public comment period during which interested persons and entities submit their comments about the proposed regulations to the EPA and that that agency will take into consideration those comments and ultimately issue its final regulations in late 1995 or sometime thereafter. It also is anticipated that, following the adoption of the final regulations, there will be an extended period in which facilities will achieve compliance with the new standards, the estimated date of which is late 1998.

You further advise that the County Commission, desirous of participating in the public comment portion of EPA's rule promulgation process, recently considered a resolution opposing the proposed "Cluster Rules" due to the perceived devastating effect that compliance with those regulations would have on a pulp mill located in the County. It has been estimated that the cost of compliance for that facility could be in excess of $200 million, and company executives have indicated that the mill may be forced to close rather than comply with the "Cluster Rules" as presently proposed. As the single largest employer in the County, it is widely believed that the mill's closure would have a devastating effect on the County's economy.

You relate that you and another County Commissioner are employed at the pulp mill and that the spouse of a third Commissioner owns a logging business that contracts logs for a lumber company which sometimes delivers pulpwood to the mill. Because of these various ties to the mill, you question whether a voting conflict of interest was created when you and the other Commissioners voted on the subject resolution.

The voting conflicts law, Section 112.3143(3), Florida Statutes, states in relevant part:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization of subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain 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 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.

This statute prohibits local public officers from voting in certain situations, including when the matter being voted upon inures to their special private gain, to the special private gain of a principal by whom they are retained, or to the special private gain of a relative, including a spouse.

In our view, none of the Commissioners were faced with a voting conflict of interest when they voted on the resolution. First, with regard to the two Commissioners employed at the paper mill, there is no indication that their votes inured to either their special private gain or to the special private gain of their employer, the paper mill, who is their "principal" for purposes of Section 112.3143(3). See CEO 84-108. In numerous opinions interpreting the phrase "special private gain," we have said that the requirements of Section 112.3143(3) do not turn on the nature of the official's vote--either for or against the measure--but rather on whether the interest which he holds is such that he or his principal would stand to gain or lose as a direct outcome of the vote. See CEO 90-66 and other opinions cited therein. In CEO 91-61, we went further and said that where the official's (or principal's) gain (or loss) would require many steps and be subject to many contingencies, with the outcome by no means certain, any gain or loss would be remote and speculative.

Here, it cannot be said what effect the Commission's resolution will have on EPA and its final version of the "Cluster Rules" for the pulp and paper industry. Whether the local mill ultimately chooses to comply with the EPA regulations or decides to close is subject to many contingencies, few of which depend upon action by the County Commission. Therefore, under the circumstances presented, it is our opinion that any gain or loss as a result of the Commission's resolution is too speculative and remote to allow us to conclude that voting in favor of the resolution opposing the "Cluster Rules" inured to the special private gain of the two Commissioners employed at the mill or to the mill itself. Even more speculative and remote is the impact of the resolution on the logging business owned by the Commissioner's spouse.

Accordingly, we find that the subject Commissioners were not prohibited from voting on the resolution opposing EPA's proposed "Cluster Rules" for the pulp and paper industry.