CEO 86-57 -- July 24, 1986

VOTING CONFLICT OF INTEREST

COUNTY COMMISSIONER VOTING ON MATTER CONCERNING CITIZEN WHO PREVIOUSLY FILED SUIT AGAINST COMMISSIONER

To: (Name withheld at the person's request.)

SUMMARY:

A county commissioner is not prohibited by Section 112.3143, Florida Statutes, from voting on the concealed weapons application of a citizen who previously had sued the commissioner in a lawsuit which required the commissioner to spend personal funds. CEO 79-14 is referenced. Nor would a county commissioner be prohibited from voting on the concealed weapons application of a citizen who threatens a future lawsuit on the matter if the application is not granted.

The Code of Ethics for Public Officers and Employees does not prohibit the Office of the County Attorney from representing a county commissioner in connection with complaint proceedings before the Commission on Ethics. CEO 76-144 is referenced. However, in Opinion 77-30 the Professional Ethics Committee of The Florida Bar advised that a county attorney may not represent an individual commissioner before the Commission on Ethics in a misuse of public office matter.

QUESTION 1:

Is a county commissioner prohibited by Section 112.3143, Florida Statutes, from voting on the concealed weapons application of a citizen who previously had sued the commissioner in a lawsuit which required the commissioner to spend personal funds?

This question is answered in the negative.

In your letter of inquiry you advise that ...., ...., and .... serve as members of the Lee County Board of County Commissioners. You also advise that the Commission presently is considering the renewal of a concealed weapons application of a citizen who challenged the results of the last election and sued the successful candidates individually concerning the methods used during the election, the voting tally, etc. As a result of the lawsuit, the three Commissioners were required to expend personal funds for legal representation on their own behalf. The lawsuit was unsuccessful, and there is no litigation presently pending on this matter, you advised our staff in a telephone conversation.

The Code of Ethics for Public Officers and Employees provides in relevant part:

Except as provided in subsection (3), no public officer is prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure 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(2), Florida Statutes (1985).]

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. [Section 112.3143(3), Florida Statutes (1985).]

In addition, Section 286.012, Florida Statutes, provides:

No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act; and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is, or appears to be, a possible conflict of interest under the provisions of s. 112.311, s. 112.313, or s. 112.3143. In such cases, said member shall comply with the disclosure requirements of s. 112.3143.

Reading these provisions together, it is apparent that unless a county commissioner is prohibited from voting on a particular matter by Section 112.3143(3), Section 112.3143(2) provides that he is not prohibited from voting on the matter. However, Section 286.012 authorizes an official to abstain from voting, in the discretion of that official, where there is or appears to be a conflict of interest under one of the provisions enumerated.

In our view, the County Commissioners are not required to abstain from voting on the concealed weapons application of an individual who previously had sued the Commissioners in a lawsuit requiring them to spend personal funds. Nothing in the facts you have presented even suggests that the concealed weapons application would inure either to the special private gain of any of the Commissioners or to the special gain of any principal by whom they may be retained. Further, it does not appear that the Commissioners would be authorized to abstain from voting on the application by Section 286.012. In a previous opinion, CEO 79-14, we advised that a city council member would not be authorized to abstain from voting under this provision on grounds of bias or prejudice against an individual with whom the council member had a physical altercation. For the reasons expressed in that opinion, we find that none of the provisions of Section 112.311, Section 112.313, or Section 112.3143 would create a possible conflict of interest or the appearance of a conflict of interest were the County Commissioners to vote on the concealed weapons application.

Accordingly, we find that the subject County Commissioners are not prohibited by Section 112.3143, Florida Statutes, from voting on the concealed weapons application and further that it appears that they would not be authorized to abstain from voting on the application because of the previous lawsuit between the applicant and the Commissioners.

QUESTION 2:

Is a county commissioner prohibited by Section 112.3143, Florida Statutes, from voting on the concealed weapons application of a citizen who threatens a future lawsuit on the matter if the application is not granted?

This question is answered in the negative.

In your letter of inquiry you advise that during a County Commission meeting the applicant for the concealed weapons permit threatened the Board of County Commissioners with a lawsuit, depending on the outcome of their vote on the matter before them. In a telephone conversation with our staff, you advised that the County Attorney's office would represent the Commissioners in any lawsuit or appeal resulting from a denial of the concealed weapons application, and therefore that the Commissioners would not be required to expend personal funds in such a lawsuit or appeal.

Section 112.3143(3), Florida Statutes, would prohibit the Commissioners from voting on the application if the application would inure to the special gain of the Commissioners or to the special gain of any principal by whom they may be retained. Under the circumstance presented, however, it does not appear that the application would inure to the special gain of any Commissioner or to any principal by whom a Commissioner may be retained. 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.

Accordingly, we find that the subject County Commissioners are not prohibited by Section 112.3143, Florida Statutes, from voting on the concealed weapons application.

QUESTION 3:

Does the Code of Ethics for Public Officers and Employees prohibit the office of the county attorney from representing a county commissioner in connection with complaint proceedings before the Commission on Ethics?

This question is answered in the negative.

In CEO 76-144 we advised that the Code of Ethics for Public Officers and Employees would not prohibit a county attorney from representing a county commissioner against whom a complaint had been filed with the Commission on Ethics, but that the question of whether a county attorney could represent a county commissioner would be a matter of professional ethics within the authority of The Florida Bar. As the provisions of the Code of Ethics referenced in that opinion have not been amended since the date of CEO 76-144, we remain of that opinion. However, we note that in Opinion 77-30 (May 9, 1978) the Professional Ethics Committee of the Florida Bar advised that a county attorney may not represent an individual commissioner before the Commission on Ethics in a misuse of public office matter. For further guidance, we would suggest that you contact The Florida Bar.