VOTING CONFLICT

COUNTY COMMISSIONER VOTING ON COUNTY
SHERIFF'S BUDGET WHERE COMMISSIONER'S
BROTHER IS DEPUTY SHERIFF APPLICANT

To: Martin David Kiar, Broward County Commissioner

SUMMARY:

A county commissioner is not presented with a voting conflict of interest regarding a measure to approve the county sheriff's office budget where the commissioner's brother is a deputy sheriff applicant. Under the circumstances presented, the measure would not inure to the "special private gain or loss" of the brother. CEO 87-47 is referenced.¹

QUESTION:

Would a county commissioner be presented with a voting conflict of interest regarding a measure to approve the budget of the county sheriff's office where the commissioner's brother is an applicant for a position as a deputy sheriff?

This question is answered in the negative.

In your letter of inquiry, you state that you serve as a member of the Broward County Commission. Further, you relate that every year the Broward County Sheriff's Office ("BSO") submits a budget to the County Commission for approval, with last year's budget being approved in an amount in excess of $600 million. Also, you state that BSO is a Constitutional Office which makes its own hiring decisions independent of the County Commission, and that your brother has applied for a position as a BSO Deputy Sheriff. You relate that your brother, like all other applicants, was required to pass mandatory requirements (e.g., oral board examination, lie detector test, psychological examination), and, having passed, has been selected to attend the police academy, with BSO sponsoring your brother's and all other applicants' attendance. In addition, you state that if your brother graduates from the academy and is hired by BSO, his salary will be paid from BSO's budget, in an amount determined in accord with the applicable collective-bargaining agreement. And, you relate that when the County Commission votes to approve a BSO budget, the Commission is unaware of detailed line items within the budget; for example, the budget does not list salary amounts for individual deputies. Additionally, you state that you have no reason to believe that the way in which you vote in connection with BSO's budget will have any impact on whether your brother is ultimately hired by BSO or any impact on how much he will be paid, if hired. Further, you relate that funding BSO's budget is the County's largest annual expense; and that because of the important role served by BSO and the significant expense to the County's taxpayers in funding BSO, you feel that it is your responsibility as a Commissioner to vote on the BSO budget, unless the law prohibits your doing so.

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 county commissioners, is Section 112.3143(3)(a), Florida Statutes, which 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.

Among other things, the statute requires an officer's declaration of interest, abstention from voting, and timely filing of a memorandum of voting conflict (CE Form 8B) regarding measures which the officer knows would inure to the special private gain or loss of the officer's "relative" (defined in Section 112.3143(1)(c),² Florida Statutes, to include one's "brother"). Further, regarding "special private gain or loss," the Legislature, in its session just ended, enacted Chapter 2013-36, Laws of Florida (effective May 1, 2013), which amended Section 112.3143(1), Florida Statutes, to provide:

(d) "Special private gain or loss" means an economic benefit or harm that would inure to the officer, his or her relative, business associate, or principal, unless the measure affects a class that includes the officer, his or her relative, business associate, or principal, in which case, at least the following factors must be considered when determining whether a special private gain or loss exists:

1. The size of the class affected by the vote.

2. The nature of the interests involved.

3. The degree to which the interests of all members of the class are affected by the vote.

4. The degree to which the officer, his or her relative, business associate, or principal receives a greater benefit or harm when compared to other members of the class.

The degree to which there is uncertainty at the time of the vote as to whether there would be any economic benefit or harm to the public officer, his or her relative, business associate, or principal and, if so, the nature or degree of the economic benefit or harm must also be considered. [Section 112.3143(1)(d), Florida Statutes.]

Under the definition of "special private gain," which essentially codifies our reasoning in many prior opinions concerning the voting conflicts law, we find that you will not be presented with a voting conflict of interest concerning the BSO budget. To the extent that your brother benefits at all, it will not be as a result of the approval of the budget, but rather as a result of the way in which the Sheriff chooses to use the funds appropriated. Thus, any benefit inuring to your brother as a result of the vote would be remote and speculative. Compare CEO 87-47, Question 2, in which we found that a State Representative, who was an investor, officer, and director of a corporation that built and financed portable classroom buildings, would not be presented with a voting conflict were he to vote on appropriation matters for agencies with which the corporation would seek to do business, because each agency funded still would have to determine which company it would do business with.

Accordingly, we find that you, a member of the Broward County Commission, will not be presented with a voting conflict of interest under Section 112.3143(3)(a), Florida Statutes, regarding a measure to approve (or disapprove) the budget of the Broward County Sheriff's Office.

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 26, 2013, and RENDERED this 31st day of July, 2013.

____________________________________

Morgan R. Bentley, Chair

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

^[2]Formerly, Section 112.3143(1)(b), Florida Statutes. See Section 6 of Chapter 2013-36, Laws of Florida (CS SB 2), effective May 1, 2013.