VOTING CONFLICT
CITY COUNCILMEMBER VOTING ON COLLECTIVE BARGAINING
MEASURES AFFECTING BARGAINING UNIT WHICH
INCLUDES HER POLICE OFFICER-HUSBAND

To: Roger G. Orr, City Attorney (Port St. Lucie)

SUMMARY:

A city councilmember would not be presented with a voting conflict of interest under Section 112.3143(3)(a), Florida Statutes, regarding measures/votes concerning collective bargaining of the rank-and-file bargaining unit which includes her police officer-husband.  Under the circumstances, any gain or loss from the measures/votes to her husband ("relative") would not be "special."  However, the councilmember's attention is called to Section 112.313(8), Florida Statutes, which prohibits the disclosure or use of information gained in one's official capacity which is not available to the general public, especially regarding such information pertaining to collective bargaining matters.  CEO 00-13 is referenced.¹

QUESTION:

Is a city councilmember presented with a voting conflict of interest regarding measures/votes of the council concerning collective bargaining of the rank-and-file bargaining unit which includes her police officer-husband?

Under the circumstances presented, this question is answered in the negative.

By your letter of inquiry, attached information, and additional information provided by you at our staff's request, we are advised that Shannon Martin ("member") serves as a member of the City Council of the City of Port St. Lucie, recently having been elected.  In addition, we are advised that the member's husband is a rank-and-file officer in the City's Police Department, who, until recently, also served as a member of the police union's team negotiating with the City regarding collective bargaining matters.²  Further, we are advised that the City is engaged in contract negotiations with several bargaining units,³ including the unit representing the rank-and-file who number approximately 150 including the member's husband.  Also, we are advised that the member's husband will be bound by any collective bargaining agreement between the City and the union to the same extent as any other member of his bargaining unit.  That is, we are advised that the impacts of any contract, whether a ratified contract or an imposed contract, would be the same for the member's husband as they would be for the other members of the rank-and-file bargaining unit.

Thus, in behalf of the member, you inquire as to whether she will be presented with a voting conflict regarding votes of the Council to ratify an agreement concerning the rank-and-file unit or regarding similar measures affecting the unit. The voting conflicts law contained within the Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes) applicable to local, elective public officers, such as city council members, 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.  [Section 112.3143(3)(a), Florida Statutes.]

In order for this statute to apply (in order for an officer to be presented with a voting conflict), the measure (vote) must inure to the special private gain or loss of the officer, to that of her "relative" [defined in Section 112.3143(1)(b), Florida Statutes, to include "husband"], or to that of another person or entity listed in the statute.

However, the essential term or element of "special," necessary for a voting conflict, is not defined within the Code of Ethics.  Thus, in administering Section 112.3143, Florida Statutes, we have had to construe the meaning of the term, resulting in many decisions finding that the effect of a vote/measure on an officer, or on her relative or other listed person or entity, is not "special" when the covered person is a member of a sufficiently large group (class) affected by the measure.  See Gonzalez and Claypool, Voting Conflicts of Interest under Florida's Code of Ethics for Public Officers and Employees, XV Stetson Law Review 675 (1986). And, though decided on a case-by-case basis, our prior decisions have tended to find no "special" gain or loss when the covered person constituted less than one percent of the affected class.  See, among many, CEO 00-13 (city commissioner/former employee of city fire department voting on collective bargaining benefits where he is one of 206 affected).

It is apparent that the instant situation, a situation in which the member's husband is but one of approximately 150 rank-and-file police officers who will be similarly affected by collective bargaining votes concerning the bargaining unit, falls squarely within our precedent finding no voting conflict due to there being no "special" private gain or loss.  Thus, under the facts presented, we find that the member will not be presented with a voting conflict of interest under Section 112.3143(3)(a), Florida Statutes, regarding votes/measures of the City Council concerning the bargaining unit of which her husband is a member.⁴

However, we also bring to your attention Section 112.313(8), Florida Statutes, which provides:

DISCLOSURE OR USE OF CERTAIN INFORMATION.—A current or former public officer, employee of an agency, or local government attorney may not disclose or use information not available to members of the general public and gained by reason of his or her official position, except for information relating exclusively to governmental practices, for his or her personal gain or benefit or for the personal gain or benefit of any other person or business entity.

While we do not presume that the subject Councilmember or any other public officer has or will violate this statute, in regard to police union negotiations or otherwise, we note it to you due to the sensitive and special nature of labor matters/information, some of which can in part occur or be revealed to officials outside of public "in-the-sunshine" meetings (e.g., in "shade meetings" of the Council held to give collective bargaining direction to the City Manager).  In our view, this statute could apply to prohibit the disclosure or use of confidential collective bargaining information for the benefit of one's relatives or any other private person or entity.       

Your question is answered, and advice is provided, accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on February 4, 2011 and RENDERED this 9th day of February, 2011.