CEO 88-18 -- March 16, 1988

VOTING CONFLICT OF INTEREST

HOSPITAL BOARD MEMBER VOTING ON STAFF MEMBERSHIP

OF PHYSICIAN AFTER VOTING ON MEMBERSHIP

AS MEMBER OF CREDENTIALS COMMITTEE

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

SUMMARY:

A hospital board member is not prohibited by Section 112.3143(3), Florida Statutes, from voting on the application of a physician for membership to the hospital staff, where prior to his appointment to the hospital board he considered the application as a member of the hospital's credentials committee. Nor would the board member be permitted to abstain from voting by Section 286.012, Florida Statutes, on the grounds of bias or prejudice.

QUESTION:

Are you, a hospital board member, prohibited by Section 112.3143, Florida Statutes, from voting on the application for membership to the hospital staff of a physician whose application you considered, prior to your appointment to the board, while a member of the hospital's credentials committee?

Your question is answered in the negative.

In your letter of inquiry you advise that recently you were appointed to the Southeast Volusia Hospital Board. You also advise that you are a member of the hospital staff of a hospital governed by the Board and have served as Chief of Staff of that hospital. For two years prior to your appointment to the Board you served as a member of the Bylaws and Credentials Committee of the hospital. As a member of that Committee, you voted on new applications for membership to the hospital staff.

In the summer of 1987, the Committee considered the application of a physician and recommended membership. However, the Executive Committee of the Hospital later disapproved the application and the Hospital Board also voted against the application. Subsequently, the physician filed suit against the Hospital Board. In light of your recent appointment to the Board, you question whether you may vote on matters relating to the physician's application and lawsuit. You advise that you do not have any financial interest in the matter and will not stand to gain financially.

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

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 (1987).]

This provision requires a local official to abstain from voting on any matter which inures either to his special private gain or to the special private gain of a principal by whom he is retained. Under the circumstances you have described, however, it does not appear that matters relating to the membership of this physician would inure to your special private gain. Nor does it appear that there is any principal by whom you are retained who could be benefited.

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.

This provision permits a public official to abstain from voting where there is or appears to be a possible conflict of interest under one of the provisions of the Code of Ethics. However, we previously have advised in CEO 79-14 that in our view this provision of law does not relate to possible bias or prejudice on the part of a public officer. That opinion was referenced by the Third District Court of Appeal in the case of Izaak Walton League of America v. Monroe County, 448 So.2d 1170, 1173, n. 8 (Fla. 3rd DCA 1984). In that case the Court held that a county commissioner would not be disqualified from considering the rezoning of property on the basis of prior public pronouncements.

Accordingly, we find that you are not prohibited by Section 112.3143, Florida Statutes, from voting on the application for staff membership of a physician, where you previously had considered that application as a member of the Hospital's Credentials Committee. We would suggest that you contact the attorney for the Hospital Board for his assistance in determining whether there is any other provision of law, such as in the special acts of the Legislature pertaining to the Hospital Board, which might apply.