VOTING CONFLICT

TOWN COUNCIL MEMBER/APPLICANT FOR COUNCIL
APPOINTMENT, VOTING ON APPOINTMENT

To: Name withheld at person's request (Davie)

SUMMARY:

No voting conflict would be created under Section 112.3143(3)(a), Florida Statutes, were a member of a town council to vote on a measure to appoint an interim council member, where the member is an applicant for the appointment. The vote would affect the public interest of the town (a public entity) and any gain or loss to the member would not be prohibited because of Section 112.313(5), Florida Statutes. CEO 82-91 and Commission on Ethics Complaint Nos. 05-067 and 05-068 are referenced.

QUESTION:

Would a voting conflict of interest be created were a member of a town council to vote to appoint an interim council member, where the member is an applicant for the appointment?

Under the situation presented, your question is answered in the negative.

You write on behalf of a … (member) who serves on the Davie Town Council. By your correspondence and telephone conversations with our staff, you advise that the Town Council is a five-member body, and that each member receives compensation in the amount of $811.50 per month, plus $200 per month for expenses. You write that on June 4, 2008, this member resigned to run for County Commission, a race in which he was unsuccessful. The member's resignation is effective November 17, you advise, and the Town Council plans to appoint a person to fill the member's position until the March municipal election.¹ As to filling vacancies, the Town Charter provides:

Filling Vacancies of the Council and Mayor. In the event that a vacancy should occur in the office of a councilmember or the mayor, the council shall forthwith elect by a vote of at least three (3) council members a successor councilmember or mayor having such qualifications (including district resident requirements) as prescribed herein for the office of councilmember or mayor until the next available general election. A successor councilmember or mayor shall then be elected to the office for the unexpired term. If the Council fails to elect a successor councilmember or mayor within the next three (3) ensuing meetings after such vacancy should occur, then a special election shall be declared to elect a successor councilmember or mayor to serve the balance of the unexpired term.

You write that although no formal application process has yet been established, the member and two other persons² have indicated their interest in filling this vacancy. Therefore, the member/applicant asks whether the Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes) would be violated were he to vote to appoint a person to the position, given that he is one of the applicants.

Relevant to the member's inquiry are Section 112.3143(3)(a), Florida Statutes, the portion of the voting conflicts law applicable to local, elected, public officers, and Section 112.313(5), Florida Statutes, which affects the application of Section 112.3143(3)(a). These statutes provide:

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

SALARY AND EXPENSES.—No public officer shall be prohibited from voting on a matter affecting his or her salary, expenses, or other compensation as a public officer, as provided by law. No local government attorney shall be prevented from considering any matter affecting his or her salary, expenses, or other compensation as the local government attorney, as provided by law. [Section 112.313(5), Florida Statutes.]

Under the situation presented, we find that a voting conflict would not be created for the member were he to vote on a measure appointing a person to the Council, where he is one of the applicants, whether he or another receives the appointment. While we have not had occasion to construe these statutes in a situation identical to the member's, we have found no voting conflict in analogous situations. In CEO 82-91, we opined that no voting conflict of interest was created where an uncompensated city mayor/council member voted to excuse his absences from city council meetings and a city charter provision provided for forfeiture of office after three consecutive unexcused absences, reasoning that the vote pertained to the member's public position and affected him in his capacity as a public official, rather than in his capacity as a private citizen. Thereafter, in reliance on CEO 82-91 and Section 112.313(5), we dismissed as legally insufficient ethics complaints against a member of the Temple Terrace City Council, which alleged that she voted on a measure to change/interpret/eliminate a city charter provision, with the effect that she would not have to stand for election at an upcoming referendum, thereby ensuring her continued receipt of council salary or ensuring that "she [did] not have to go through the expense of running again." See In re GLENDA VENABLE, Complaint Nos. 05-067 and 05-068 (dismissed via Commission on Ethics orders rendered June 7, 2005). In dismissing the complaints, we analogized the council member's situation to that of the mayor in CEO 82-91 and further reasoned that any distinction between her situation and that of the mayor in CEO 82-91 occasioned by her receipt of salary and the mayor's lack of compensation was covered by Section 112.313(5).

Here, as in CEO 82-91 and Complaint Nos. 05-067 and 05-068, we believe that the essence of the voting conflicts law addresses gain or loss directly flowing from a vote (measure) as affects one's purely private interests and does not address situations where effects of a vote/measure directly impact the institutional structure of government, such as timely and efficiently filling the offices of government.³

Accordingly, we find that the Town Council member is not presented with a voting conflict of interest regarding votes/measures to appoint an interim Council member, where he is an applicant.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 17, 2008 and RENDERED this 22nd day of October, 2008.

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Cheryl Forchilli, Chair