VOTING CONFLICT

SCHOOL BOARD MEMBER VOTING ON MEASURES AFFECTING
ATTORNEY OF MEMBER'S FORMER LAW FIRM WHO ALSO IS
A BOARD MEMBER OF PUBLIC HEALTH TRUST
FOR WHICH MEMBER IS A LAWYER-LOBBYIST

To: Renier Diaz de la Portilla, School Board member (Miami-Dade)

SUMMARY:

A school board member would not be presented with a voting conflict regarding measures concerning a lawyer's seeking the position of school board attorney where the lawyer and the member formerly were in the same law firm and where the lawyer currently is a board member of a public health trust for which the member is a lawyer-lobbyist. Neither the member nor any person or entity standing in a statutorily-enumerated voting conflict relationship to the member would be affected by the measures. CEO 09-9, CEO 09-2, and CEO 08-4 are referenced.¹

QUESTION:

Would you, a school board member, be presented with a voting conflict of interest under Section 112.3143(3)(a), Florida Statutes, regarding measures affecting the candidacy for school board attorney of a lawyer with whose firm you previously held a relationship and who is a member of the governing board of a public health trust which currently employs you as a lawyer-lobbyist?

Your question is answered in the negative.

By your letter of inquiry, a letter from the interim School Board Attorney, and a memorandum from you, we are advised that you serve as a member of the Miami-Dade County School Board, that you are an attorney, and that you recently resigned from a large Florida law firm.² In addition, you advise that the School Board is in the process of selecting a School Board Attorney, that one of the finalists for the position is a shareholder of your former firm, and that he also serves as an unpaid, volunteer board member of a local public health trust, for which you serve as a registered lawyer-lobbyist.³ Further, you advise that in the School Board Attorney selection process you have refrained from participating in and voting on your former firm member's candidacy, abstaining on the only vote (a May 20 measure/vote to keep him as a finalist in the search process) in an abundance of caution, after announcing an "appearance of a conflict" due to his and your both being employed by the same law firm at the time of the vote.⁴

Thus, given your resignation from the law firm since the May 20 vote and in view of your and the candidate's continuing relationships regarding the public health trust, you seek our advice as to whether you will be presented with a voting conflict regarding future measures concerning the candidate and School Board Attorney selection.

Contained within the Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes) is Section 112.3143(3)(a), Florida Statutes, the portion of the "voting conflicts law" which is applicable to local, elected public officers such as School Board members. It 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.

The law applies regarding votes/measures which directly would cause special private gain or loss to the public officer himself, to his principal (e.g., client, employer), to his "business associate," or to certain other persons or entities enumerated in the statute. For the reasons set forth below, we find that you will not be presented with a voting conflict regarding votes/measures concerning the candidate and the School Board Attorney selection process, including the vote to hire the candidate as School Board Attorney, should he be the successful applicant.

Regarding you personally, we see no indication in your inquiry that votes/measures benefiting or harming the candidate in his quest to be hired by the School Board also will inure to your own special private gain or loss, especially given that he will be leaving your former firm (an entity regarding which you advise you received a fixed salary, did not share in profits, and did not participate in administration) if hired and given that you will have no interest (ownership, equity, profit-sharing, or other) in his new firm, endeavor, or employment via which he will act as School Board Attorney, should he be selected. Compare CEO 09-2 and opinions cited therein finding that measures which cause gain or loss to an entity in which one owns a substantial interest necessarily also cause gain or loss to the owner.

Regarding your former firm, we see no indication that votes/measures affecting the candidate will cause gain or loss to the firm. Notwithstanding that the candidate has announced that he will resign from the firm if selected as School Board Attorney (obviously an occurrence of professional/emotional/fraternal loss to the firm), we have been presented with no facts which indicate that his selection would result in the firm's hiring by the School Board or would result in a similar effect on the firm. Further, assuming arguendo that selection of the candidate would cause special private gain or loss to the firm, we do not find that the firm would be your principal (employer). Such a relationship requires a present (at-the-time-of-the-vote) connection; past or possible future relationships do not trigger the statute. See CEO 09-9 and our opinions cited therein.

Regarding the candidate, we do not find that he is your "business associate" by virtue of the both of you formerly being connected to the same law firm. Notwithstanding that the two of you may have held the relationship one to the other while you both were at the firm, the statutory definition of the relationship, like the statutory reference concerning the relationship of a principal by whom a public officer is retained, encompasses a present, not a past or possible future, relationship. See CEO 09-9. The definition (emphasis supplied), codified at Section 112.312(4), Florida Statutes, provides:

'Business associate' means any person or entity engaged in or carrying on a business enterprise with a public officer, public employee, or candidate as a partner, joint venturer, corporate shareholder where the shares of such corporation are not listed on any national or regional stock exchange, or coowner of property.

As to the public health trust (or its subordinate or related health system) which is a principal (employer) retaining you as a lawyer-lobbyist, under reasoning similar to that above regarding your former law firm we see no indication that selection of the candidate (an unpaid, volunteer board member of the trust) will result in gain or loss to the trust/system within the meaning of the voting conflicts law. Further, we do not find that the candidate is your "business associate" due to your working as a lawyer-lobbyist for the trust of which he is a board member. Rather than constituting your carrying on a business enterprise with the candidate in a manner required to establish the "business associate" relationship, the situation presented merely indicates that you have been hired by the trust or its heath system and that the candidate merely is a director of the trust. See CEO 08-4, Question 5.

Accordingly, we find that you will not be presented with a voting conflict regarding School Board votes/measures affecting the candidate and selection of a Board Attorney.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 12, 2009 and RENDERED this 17th day of June, 2009.

____________________________________

Cheryl Forchilli, Chair

^[1] Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us) or may be obtained directly from the Commission.