CEO 01-17 -- September 11, 2001

 

VOTING CONFLICT

 

COUNTY COMMISSIONER MEMBER OF FORUM VOTING ON MEASURES AFFECTING OTHER MEMBERS OF FORUM

 

To:       Ramiro Manalich, Chief Assistant County Attorney (Naples)

 

SUMMARY:

 

A county commissioner who also is a member of an educational/networking forum organized as a nonprofit corporation is not subject to the voting conflicts law codified at Section 112.3143(3)(a), Florida Statutes, regarding measures inuring to the special private gain or loss of other members of the forum.  By virtue of forum membership, the other members are not "business associates" of the commissioner.  CEO 98-9 is referenced.

 

QUESTION:

 

Are members of an educational/networking forum organized as a nonprofit corporation "business associates" of a county commissioner who also is a member of the forum, such that the commissioner is required to abstain from voting and otherwise comply with the voting conflicts law [Section 112.3143(3)(a), Florida Statutes] regarding county commission measures inuring to the special private gain or loss of the other members?

 

Your question is answered in the negative.

 

By your letter of inquiry, a letter from our staff to you, and a previous letter and accompanying materials from you to our staff, we are advised that . . . ("Commissioner") serves as a member of the Collier County Commission and that he desires to again become a member of a forum[1] organized as a nonprofit corporation ("forum").[2]  Further, you advise that the objectives of the forum are to provide professional educational programs and networking for and among its members, who include presidents, chief executive officers, and managing directors of organizations, via the forum's contracting with experts in various fields who in turn provide progressive, accurate, and timely management information to forum members at forum events.  Persons may become members of the forum ($1,000 initiation fee, $1,200 annual dues) or may attend forum meetings as a guest of a forum member for $195 per meeting, you advise.  Also, you advise that the forum does not bring any items of any nature before the County Commission, although members of the forum include executives of health care organizations, recruitment/employee-leasing organizations, insurance agencies, banks, development companies, engineering firms, and other organizations which may bring items before the County Commission.

In addition, you write that the Commissioner believes that his inquiry may have Statewide importance in that public officials are often members of nonprofit organizations in their communities (e.g., Economic Development Council, Kiwanis Club, Rotary Club, Chamber of Commerce, the forum), with the result that a great deal of public service work may be lost and public governing bodies may be crippled due to abstentions from votes if it is determined that other members of such organizations are one's "business associates" for purposes of the voting conflicts law.

Relevant statutes, with emphasis supplied, provide:

 

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.  [E.S. Section 112.3143(3)(a), Florida Statutes.]

 

'Business associate' means any person or entity engaged in or carrying on a business enterprise with a public officer, public employee, or candidate as a partner, joint venturer, corporate shareholder where the shares of such corporation are not listed on any national or regional stock exchange, or coowner of property. [Section 112.312(4), Florida Statutes.]

 

Due to its relatively recent inclusion[3] within the voting conflicts law, we have had few opportunities to construe the meaning of the term "business associate."  However, clearly it is our view that in order for persons to come within the definition as to one another they must be engaged in a common, commercial pursuit (a "business enterprise"); it is not sufficient that they merely occupy a certain label or nominal status in relation to each other.  See CEO 98-9 and our opinions cited therein.

In the situation you describe, it is clear that the Commissioner would not, by virtue of forum membership, be engaged in a commercial endeavor with the other forum members, some of whom may from time-to-time be affected by County Commission measures; and thus we find that other forum members would not be his "business associates" were he to rejoin the forum.[4]

Accordingly, we find that membership in the forum by the Commissioner would not make him subject to Section 112.3143(3)(a) vis-a-vis making other members of the forum his "business associates."[5]

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on September 6, 2001 and RENDERED this 11th day of September, 2001.

 

 

__________________________

Ronald S. Spencer

Chair


[1]You advise that the Commissioner was executive director and a founding member of the forum, that he resigned as executive director when he became a County Commissioner, and that since June 2000 he has not been a dues-paying member of the forum.

[2]Additionally, you advise that the forum's articles of incorporation specify that it is nonprofit and that shares of stock will not be issued; that under the structure of the forum, members do not have rights equivalent to the voting rights of stock holders in a closely-held for-profit corporation; and that forum membership merely entitles one the right to attend forum meetings, but not the right to control or direct the nonprofit corporation.

[3]See Chapter 91-85, Laws of Florida, Section 5.

[4]Further, given the Legislature's choice of language which ties one's status as a "business associate" to, inter alia, one's status as a closely-held "corporate shareholder," and given the strict judicial construction applicable to penal statutes such as the statutes within the Code of Ethics for Public Officers and Employees [see City of Miami Beach v. Galbut, 626 So. 2d 192 (Fla. 1993)], it is doubtful that one's status as a member of a nonprofit corporation which does not issue shares of stock would fall within the Legislature's terminology which subjects one to the voting conflicts law, unless the facts also indicate a partnership, joint venture, or similar business undertaking.

[5]However, as you recognize in your correspondence, the Commissioner is subject to the voting conflicts law regarding measures inuring to the special private gain or loss of his wife ("relative").  Also, the Commissioner should scrutinize County Commission measures to assure that they do not inure to his personal special private gain or loss or to that of any persons or entities enumerated in Section 112.3143(3)(a), irrespective of whether any such persons or entities are members of the forum.