VOTING CONFLICT OF INTEREST

VILLAGE COMMISSIONER VOTING ON FRANCHISE AGREEMENT

To: Name withheld at person's request (Biscayne Park)

SUMMARY:

No voting conflict of interest would be created under Section 112.3143(3)(a), Florida Statutes, were a member of the Biscayne Park Village Commission to vote on a franchise agreement where the law firm employing the Commissioner is retained by the franchisee to lobby the Florida Legislature. The measure would not inure to the special gain of the Commissioner or of any principal by whom the Commissioner is retained. CEO 94-41 is referenced.

QUESTION:

Would a voting conflict of interest exist were a member of the Biscayne Park Village Commission to vote on franchise agreement between the Village and a utility company, when the law firm which employs the Commissioner is retained by the company for lobbying services on statewide issues?

Your question is answered in the negative.

You write on behalf of …, a member of the Biscayne Park Village Commission, to request guidance as to whether the member may vote on a franchise agreement between the Village and Florida Power and Light Co. ("FP&L"), an electric utility.

Information you have provided by letter, e-mail, and telephone conversations with our staff reflects that Biscayne Park currently has a 30-year franchise agreement with FP&L which will expire in the spring of 2010, and that the Village is contemplating entering into a new 30-year agreement. You relate that under the terms of the agreement, the Village will not compete with FP&L in providing electricity and, in return, FP&L will pay the Village a franchise fee of 5.9% of the revenues it receives in the incorporated area.

You advise that the Commissioner is employed by a law firm "for which the primary area of practice is lobbying/governmental relations services." For a number of years, you write, FP&L has retained this firm "to provide lobbying services specifically and exclusively before the Florida Legislature." You state that the firm provides no legal services to FP&L. You also state that the Commissioner is not an attorney, that she is employed as a lobbyist but does not work on FP&L issues, and that none of the clients she represents would be affected by the vote. Further, you relate, the Commissioner is a salaried employee, is not an officer, director, or shareholder of the firm, and receives no bonuses or commissions connected to the firm's contract with FP&L. Finally, you advise that the firm has not participated in the franchise agreement issue and does not stand to gain or lose as a result of the vote.

Section 112.3143(3)(a), Florida Statutes, states, in relevant part:

VOTING CONFLICTS.--No county, municipal, or other local public officer shall vote in an official capacity upon any measure which inures 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 the officer 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.

Section 112.3143 prohibits an official from voting whenever the matter under consideration would inure to her own special private gain or loss or that of "any principal by whom the officer is retained." As you have indicated that neither the firm, the Commissioner, nor the Commissioner's clients would stand to gain or lose by adoption or rejection of the franchise agreement, the question becomes whether FP&L should be considered the Commissioner's "principal."

Our past opinions have indicated that each attorney in a law firm is "retained" by each of the firm's clients, and is therefore required to abstain from voting on matters inuring to the special private gain or loss of any client of the firm. These rulings were underpinned by case law stating that the retention of a law firm obligates every member thereof to fulfilling the contract. See, CEO 03-7. The courts have not applied that concept to non-lawyer employees of law firms; nor have we. In CEO 94-41, we advised a paralegal who served as a member of a city council that unlike the attorneys in the firm, her "principal" would be the law firm where she was employed rather than any individual client of the firm, and that she would not have a voting conflict of interest in voting on matters inuring to the gain or loss of a firm client, so long as the client was not represented in the matter by her firm. Consistent with the opinion, we find here that the Commissioner's "principals" would be the firm where she is employed and her individual clients. As you have represented that the measure at issue will not inure to the benefit or detriment of any of those persons or entities, no prohibited voting conflict of interest is presented.

Accordingly, we find that no voting conflict of interest would exist were the subject member of the Biscayne Park Village Commission to vote on a franchise agreement between the Village and FP&L, under the circumstances presented.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 6, 2008 and RENDERED this 11th day of June, 2008.

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Albert P. Massey, III, Chairman