CEO 85-14 -- January 24, 1985

VOTING CONFLICT OF INTEREST

COUNTY COMMISSIONER CERTIFIED PUBLIC ACCOUNTANT WHOSE CLIENTS APPEAR BEFORE COMMISSION

To: Mr. Frank A. Wacha, Martin County Commissioner

SUMMARY:

Section 112.3143, Florida Statutes (Supp. 1984), prohibits a county commissioner from voting on a measure which would inure to the special gain of a client of his certified public accountant firm, as the client is a principal by whom the commissioner is retained. CEO 77-53 is revoked, and CEO's 80-75 and 78-59 are referenced.

QUESTION:

Are you, a county commissioner and practicing certified public accountant, prohibited from voting on a measure which would inure to the special gain of one of your clients?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you have been elected to serve as a member of the Martin County Board of County Commissioners and that you are a practicing Certified Public Accountant. You question whether you are presented with a voting conflict of interest if one of your clients appears before the Board. As effective on October 1, 1984, Section 112.3143(3), Florida Statutes (Supp. 1984), provides:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. 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. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one- acre, one-vote basis is not prohibited from voting.

This provision prohibits a county officer from voting in his official capacity upon any measure which inures to his special private gain and from knowingly voting upon any measure which inures to the special gain of a principal by whom he is retained.

In a previous opinion to you, CEO 77-53, we advised that under the prior voting conflict law you were not required to file a memorandum of voting conflict when you voted on a measure affecting the interests of a client of your accounting firm. Upon further consideration of the issues raised here, we conclude that our earlier advice was erroneous and we hereby revoke CEO 77-53.

That opinion was based on another opinion, CEO 76-209, in which we advised that a city councilman was not presented with a voting conflict of interest when a customer of his hardware store appeared before the council, as the customer was not a principal by whom the councilman was retained. Since that time we have indicated that an architect and a surveyor have voting conflicts when their clients appear before their boards. See CEO 80-75 and CEO 78-59. Attorneys also act as agents for their clients. 4 Fla. Jur. 2d Attorneys at Law, Section 130. In our view, the relationship between an accountant and his client is much more similar to the professional relationship between an architect, attorney, or surveyor and his client than to a store owner and his customer. Furthermore, we note that accountant-client communications are privileged under the law just as attorney-client communications are. Section 90.5055, Florida Statutes.

We do not mean that you are prohibited from voting on any matter benefiting former clients, however. The voting conflict law is phrased in the present tense, and we have advised in CEO 80-75 that a voting conflict is not presented if the board member has no ongoing relationship with the client at the time the measure comes before the board. For example, a client who has retained you only to prepare an income tax return and who may or may not ask you to prepare his return the following year would not be a principal by whom you are retained after you have finished the client's return and been paid for that work.

You also have questioned whether you may participate in discussions pertaining to a matter in which you are required to abstain from voting. We previously have advised that Section 112.3143 governs only voting, and that an official's actions in participating in discussions are governed generally by the limitation against the corrupt use of official positions. See CEO 82-74 and CEO 77-83 for further information in this regard. Accordingly, we find that you are prohibited from knowingly voting on a measure which inures to the special gain of a client of your accounting firm. You also have inquired about the possibility of conflicts of interest arising out of your status as a real estate broker-salesman with a real estate firm. As you have provided no factual circumstances about this activity from which we can reach any conclusions, we can only refer you to opinions CEO 78-96 and CEO 82-53 for examples of potential voting conflicts for officials engaging in real estate business.