CEO 06-5 -- April 26, 2006

VOTING CONFLICT OF INTEREST

CITY COMMISSIONER VOTING ON MEASURES AFFECTING HORSETRACK WHICH SEASONALLY EMPLOYS HIM

To: David Jove, City Attorney (Hallandale Beach)

SUMMARY:

A city commissioner seasonally employed in a company's horsetrack operations is not subject to the voting conflicts law regarding city commission votes/measures affecting a development proposed by the company, where the votes/measures are considered at times outside his seasonal employment. The voting conflicts law addresses present (not past or future) employment. CEOs 77-183, 78-96, 79-31, 80-75, 84-1, and 85-14 are referenced.1

QUESTION:

Would a city commissioner be presented with a voting conflict regarding measures affecting a company which has seasonally employed him, where the votes occur when he is not employed by the company?


Your question is answered in the negative.


By your letter of inquiry and additional information provided by you to our staff, we are advised that William Julian ("the Commissioner") serves as a member of the City Commission of the City of Hallandale Beach. In addition, we are advised that the Commissioner has been employed (part-time, from January to April) by a corporation2 which operates a horseracing track and which proposes to develop approximately eighty-five acres adjacent to the racetrack. Further, we are advised that the land to be developed is within the City and that the City Commission will be called on (beginning in May 2006) to decide (vote on) a land use amendment, rezoning, a resolution approving a conceptual site plan, an ordinance approving the DRI (development of regional impact) development order, and a resolution approving a development agreement.


Under this scenario, you seek, in behalf of the Commissioner, our opinion as to whether he is subject to the voting conflicts law [Section 112.3143(3)(a), Florida Statutes] applicable to local, elected public officers, regarding votes/measures of the City Commission affecting the corporation, by virtue of his past limited, seasonal employment with the corporation and by virtue of his possible future employment with the corporation.


Section 112.3143(3)(a), Florida Statutes, with emphasis supplied, 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.

This statute would require the Commissioner's oral declaration of his relationship to the corporation, his abstention from voting, and his timely filing of CE Form 8B (Memorandum of Voting Conflict), regarding measures affecting the corporation (including the various measures listed above), if he is retained (employed)3by the corporation at the time of the vote.

We adhere to our precedent and find that the Commissioner is not subject to the law regarding City Commission measures affecting the corporation which will be considered in May because the scenario presented does not indicate that he will be employed by the corporation at that time. Our decisions construe the statute as applying only "in the present tense." That is, a public officer must be employed by the public-measure-affected person or entity at the time of the vote; past relationships or possible future relationships do not satisfy the requirements of the statute. CEO 77-183 (water management district board member voting on surface water permit for entity formerly retaining his engineering services), CEO 78-96, Question 3 (city councilman voting on matters affecting potential clients of his real estate firm), CEO 79-31 (city planning commission member voting on matter affecting person with whom he has occasionally subcontracted), CEO 80-75 (municipal board of adjustment member voting on variance request for project he was involved in as an architect), CEO 84-1, Question 2 (applicant not a client of county commissioner's engineering/surveying firm at time of vote on rezoning or platting), and CEO 85-14 (county commissioner/accountant who prepared income tax return for a person who may or may not ask him to prepare return the following year).


Accordingly, under the scenario presented, we find that the Commissioner is not subject to the voting conflicts law4 regarding votes/measures which affect a corporation which seasonally employs him, when such votes/measures occur outside times of his seasonal employment.5


However, please note that this opinion makes no finding regarding Section 112.313(2), Florida Statutes (SOLICITATION OR ACCEPTANCE OF GIFTS), Section 112.313(4), Florida Statutes (UNAUTHORIZED COMPENSATION), Section 112.313(6), Florida Statutes (MISUSE OF PUBLIC POSITION), Section 112.3148, Florida Statutes (REPORTING AND PROHIBITED RECEIPT OF GIFTS BY INDIVIDUALS FILING FULL OR LIMITED PUBLIC DISCLOSURE OF FINANCIAL INTERESTS AND BY PROCUREMENT EMPLOYEES), or other provision of the Code of Ethics (other than the voting conflicts law); and that this opinion does not address situations or relationships, if any, existing outside of the material facts presented for our review.


ORDERED by the State of Florida Commission on Ethics meeting in public session on April 21, 2006 and RENDERED this 26th day of April, 2006.

______________________________
Thomas P. Scarritt, Jr., Chairman



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

2 We are advised that the Commissioner has been employed by and has been paid by the corporation; that he works as a steward (ensuring that racing rules and regulations are properly enforced via sitting as a judge imposing fines for violations); that the employment is seasonal (beginning January 4 and ending in April); that it is likely that the Commissioner will be re-employed in coming seasons; that he works at most a few times a month (on a call-in basis for nominal pay - four times in the last season); and that he has been in the horse racing business ("his passion") for thirty-six years. Further, we are advised that the Commissioner's horsetrack employment is neither ongoing nor guaranteed; that it amounts to "at-will employment, January to April, with no right to future employment"; that there is no enforceable contract or agreement between the Commissioner and the corporation that the corporation will hire him in the future; that at the time of the votes on the measures affecting the corporation the Commissioner will not be retained by or "on call for" the corporation; that at the time of the votes the Commissioner will not be contracting or negotiating with the corporation regarding future employment; and that the corporation does not provide health insurance, a pension/retirement, or similar benefits for the Commissioner.

3For purposes of the voting conflicts law, we have construed "principal" and "employer" to be synonymous. CEO 78-27, Question 2.

4 However, the Commissioner, while not required to abstain, may wish to abstain under Section 286.012, Florida Statutes. If he abstains under Section 286.012, he should utilize and follow the instructions on CE Form 8B.

5We find that he is subject to the law regarding votes/measures affecting the corporation when such votes/measures occur during his seasonal employment.