CEO 07-14 -- June 13, 2007


VOTING CONFLICT

CITY COMMISSIONER VOTING ON LAWSUIT MATTERS

To: Kenneth L. Weiss, Attorney at Law (St. Pete Beach)

SUMMARY:

A city commissioner is not presented with a voting conflict under Section 112.3143(3)(a), Florida Statutes, regarding measures to hire or dismiss city attorneys or regarding measures to settle comprehensive land use plan lawsuits in which the commissioner is named but for which the commissioner personally will not pay for the litigation. CEO 85-46 and CEO 86-57 are referenced.[1]

QUESTION 1:

Is a city commissioner presented with a voting conflict regarding measures to put forth a request for proposals seeking a city attorney, to retain or terminate the current city attorney (where the current city attorney is counsel of record for the city in two lawsuits involving the commissioner in a non-city capacity), and to hire a new city attorney?[2]


Question 1 is answered in the negative.


By your letter of inquiry and accompanying information, additional correspondence from you, and other information submitted at the request of our staff, we are advised that ... (Commissioner) serves as a City Commissioner of the City of St. Pete Beach, having been elected and sworn in to office in March of this year. In addition, we are advised that the Commissioner, another City Commissioner, and others are defendants in two lawsuits [one filed by the City (City's lawsuit) and one filed by a developer (developer's lawsuit)][3] arising out of changes to the City's comprehensive land use plan, the Commissioner's and others' petition efforts to repeal the changes, and related matters. Essentially, you advise, the two lawsuits seek a court determination that the petitions are invalid and that the electorate does not have a right to repeal the changes. Further, you advise that the continued prosecution of both the City's lawsuit and the developer's lawsuit is again[4] at issue before the City Commission, there being a pending motion for summary judgment in both suits. Also, you advise that the Commissioner personally has not had to bear and will not have to bear any attorney fees and costs in either suit because a citizens' petition committee has and will pay them, as it did in the earlier suit.[5] Thus, in order to obtain guidance for the Commissioner in avoiding potential ethics conflicts, you seek our opinion in the Commissioner's behalf.


Section 112.3143(3)(a), Florida Statutes, is the portion of the voting conflicts law applicable to elected, local public officers such as city commissioners. The statute provides:


VOTING CONFLICTS.- 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.


In past opinions, we have not found the statute to be applicable to measures where there was sufficient uncertainty at the time of the vote as to whether, and, if so, to what extent, gain or loss would result from the measure, that we found such gain or loss to be remote and speculative. In the situation presented, we too find that the statute is not applicable and that no voting conflict is created. While a City Commission measure to retain or terminate an attorney as City Attorney would inure to the special private gain or loss of the attorney, it is uncertain that such a measure would directly result in gain or loss to the Commissioner.[6] Assuming arguendo that a dismissal of the lawsuits or a change in the City's position regarding the lawsuits would inure to the special private gain or loss of the Commissioner (a defendant in the lawsuits)[7] and assuming arguendo that a new attorney for the City would recommend dismissal or a change in position, such dismissal/change of position would not directly result from a replacement of the City's Attorney, inasmuch as the advice of a lawyer is not required for or would not bind the City Commission's decisions regarding dismissal/change of position. In other words, whether there will be a dismissal or a change of position regarding the lawsuits will depend on many factors, the predominant one being a decision of the City Commission and not the advice of its lawyer. See, for example, CEO 85-46. Therefore, we find that the Commissioner is not presented with a voting conflict regarding the measures.


QUESTION 2:

Is the Commissioner presented with a voting conflict regarding a measure for the City to retain outside counsel to evaluate the merits of both the City's lawsuit and the developer's lawsuit in order to render an independent legal opinion to the City Commission as to the efficacy of the litigation, or regarding a measure to hire a particular attorney as outside counsel?


 Question 2 is answered in the negative. Under our reasoning regarding Question 1, we find that no voting conflict is created because any gain or loss to the Commissioner would be remote or speculative.[8]


QUESTION 3:

Is the Commissioner presented with a voting conflict regarding a measure to dismiss the City's current counsel of record (outside counsel and the City Attorney) in the lawsuits and to retain new counsel?


 Question 3 is answered in the negative. As with Questions 1 and 2, we find that no voting conflict is created because any gain or loss to the Commissioner would be remote or speculative.


QUESTION 4:

Is the Commissioner presented with a voting conflict regarding a measure concerning continuation of the litigation, such as a measure concerning whether the City should dismiss or settle the lawsuits?


 Question 4 is answered in the negative. Unlike a situation in which a public officer personally faces fees or costs in an insular, purely private matter, the Commissioner's situation involves his being a nominal defendant in what can be referred to as public interest litigation, and involves his not personally financing costs or fees involved in the lawsuits. See CEO 86-57 (Question 2), in which we found that a county commissioner was not presented with a voting conflict where the commissioner would not be required to expend personal funds in a lawsuit. Further, in CEO 86-57 we stated:


Nor do we feel that the fact that an individual may threaten a future lawsuit or appeal of an official's action should be sufficient to disqualify that official from taking any action. Otherwise, any person might be able to disqualify an entire board from taking action simply by advising the board that he would appeal their decision or file a lawsuit against them if the board were to take action adverse to the individual.


QUESTION 5:

Is the Commissioner presented with a voting conflict regarding a measure to repeal the ordinance that fostered the comprehensive land use plan changes, thereby possibly causing the lawsuits to be dismissed as moot?


 Question 5 is answered in the negative under our reasoning regarding Question 4.[9]


 Accordingly, we find that the Commissioner is not presented with a voting conflict regarding measures as discussed herein.


 ORDERED by the State of Florida Commission on Ethics meeting in public session on June 8, 2007 and RENDERED this 13th day of June, 2007.


____________________________________

   Norman M. Ostrau, Chairman

[1] For prior opinions of the Commission on Ethics, go to www.ethics.state.fl.us

[2] Questions herein are restated (as to form, not substance) from the wording presented in your inquiry.

[3]Another lawsuit, filed by the City before the filing of the two pending lawsuits and naming the Commissioner as a defendant in his capacity as an officer of a citizens' petition committee, which sought to have the court declare that proposed City charter amendments were unconstitutional, is over, having been resolved in favor of the committee, you advise. In addition, you advise that the attorney fees and costs of the defendants in that suit were paid by the committee - that the Commissioner did not pay any legal fees or costs in that action.

[4]You advise that the current City Attorney (who also served the previous City Commission which instituted the City's lawsuit and which agreed with the developer's position in the developer's lawsuit) and the previous City Commission refused to dismiss the City's lawsuit or to consider settlement when requested to do so by you and other citizens after the electorate's repeal of the land use plan changes.

[5]You advise that the committee's funding from which the fees and costs will be paid, if necessary, does not include contributions from the Commissioner, that the Commissioner is not expected to contribute to the committee's funding, and that the Commissioner will not contribute to its funding. Further, you advise that past contributions by the Commissioner to the committee were expended prior to the Commissioner's election to office and that the Commissioner will not receive any moneys back from the committee when it winds up its operations.

[6]It therefore follows, and we so find, that the statute also is not applicable to a measure regarding whether the City should issue a request for proposals for the services of a City Attorney.

[7] See Questions 4 and 5 below.

[8]Your phrasing of Question 2 included the wording provided [the Commissioner] has no contractual relationship with said attorney. While we find that the voting conflicts law would not be implicated by the Commissioner's voting on a measure affecting an attorney who also represents the Commissioner (e.g., a measure to hire the attorney as outside counsel for the City on a lawsuit) because, inter alia, one's attorney is not one's principal but rather is one's agent, we also find that such a hiring would implicate Section 112.313(7)(a), Florida Statutes, in that the Commissioner would hold a contractual relationship with the attorney (a business entity doing business with the Commissioner's agency).

[9]Your inquiry includes a sixth question. However, this question does not present a concrete situation susceptible to our analysis. Please inquire of us or our staff in the future if any additional concrete questions regarding the Code of Ethics, materially different from those answered herein, present themselves.