CEO 90-77 -- November 13, 1990

CONFLICT OF INTEREST; VOTING CONFLICT

CITY PLANNING BOARD MEMBER DATING, ENGAGED, OR MARRIED TO ENGINEER WHO IS A CITY COUNCILMAN

To: (Name withheld at the person's request.)

SUMMARY:

No prohibited conflict of interest would be created were a member of a city planning board to date, become engaged to, or marry a city council member who also is an engineer appearing before the planning board on occasion. Section 112.313(7), Florida Statutes, prohibits a public official from having certain conflicting employment or contractual relationships, but these kinds of personal relationships do not constitute employment or contractual relationships. In addition, the statute is directed only at conflicts based on the official's employment or contractual relationships, rather than at those of his or her spouse.

The planning board member would be prohibited by Section 112.3143(3), Florida Statutes, from voting on matters inuring to the special gain of the engineer if she is married or engaged to him. Absent some agreement or expectation that the engineer will contribute to the board member's support, the board member is not required to abstain from voting on matters benefiting the engineer while they simply are dating each other, although she may abstain as provided in Section 286.012, Florida Statutes.

QUESTION 1:

Would a prohibited conflict of interest exist were you, a member of a city planning board, to date, become engaged to, or marry a member of the city council who also is an engineer appearing before the planning board on occasion?

This question is answered in the negative.

In your letter of inquiry, you advise that you serve as a member and chairman of the St. Cloud Planning Board. You also advise that after your appointment to the Board you began dating an individual who is an engineer and who subsequently was elected to serve on the City Council. You have abstained from voting on cases brought before the Planning Board by the engineer.

The Code of Ethics for Public Officers and Employees provides in relevant part:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.--No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business, with an agency of which he is an officer or employee . . .; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), Florida Statutes.]

This provision prohibits you from having certain employment or contractual relationships while you serve on the Planning Board.

As we have not considered the marital relationship to constitute an "employment or contractual relationship" within the meaning of this prohibition, and as the statute by its terms addresses only employment or contractual relationships of the official, and not those of his or her spouse, we have advised that Section 112.313(7) does not apply to situations where a public official may be presented with a conflict of interest on the basis of the activities or interests of his or her spouse. See, for example, CEO 89-44, CEO 88-33, CEO 88-35, and CEO 87-50. Similarly, we are of the opinion that Section 112.313(7) would not apply to conflicts of interest arising out of an official's dating or being engaged to an individual who appears before the official's agency.

Accordingly, we find that the Code of Ethics does not prohibit you from continuing to serve on the Planning Board while you date, or were you to become engaged to or to marry, a member of the City Council who also is an engineer appearing before the Planning Board on occasion.

QUESTION 2:

Are you, a member of a city planning board, prohibited from voting on matters brought before the board by an engineer who is a member of the city council and whom you are dating, to whom you are engaged, or to whom you are married?

The Code of Ethics for Public Officers and Employees provides in relevant part:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his 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. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one-acre, one-vote basis is not prohibited from voting. [Section 112.3143(3), Florida Statutes.]

This provision prohibits you from voting on a measure that would inure either to your special private gain or to the special gain of a principal by whom you are retained.

In CEO 85-42, we advised that a city planning and zoning commissioner was prohibited from voting on projects that had been drawn by her spouse, who was an architect. There, we noted that in prior opinions we concluded that if the measure under consideration would inure to the special private gain of the spouse of a public officer, and if the spouse contributed to the support of the officer, the matter would inure to the special private gain of the officer. We further determined that city approval of the developer's project would inure to the architect's special private gain because that approval was necessary for him to continue working on the project, thereby gaining additional fees.

With respect to the questions you have posed, it is clear that if you marry the engineer you should abstain from voting on a matter that would inure to his special private gain, as in the example above. On the other hand, while you simply are dating him, absent some agreement or expectation that he will contribute to your support, we see no basis from which to conclude that what inures to his special gain also would inure to your gain. Therefore, we find that you are not required to abstain from voting on measures brought before the Planning Board by a person whom you are dating.

When one is engaged, there is an expectation of marriage and its concomitant legal obligations. What benefits one's betrothed can be expected to benefit oneself upon marriage, whether directly or indirectly. For this reason, we conclude that you are required to abstain from voting on measures that inure to the special gain of a person to whom you are engaged to marry.

For your information, Section 286.012, Florida Statutes, permits a public official to abstain from voting where there is or appears to be a conflict of interest under one of the provisions of the Code of Ethics for Public Officers and Employees. See CEO 85-27. Under this statute, you may wish to abstain from voting on matters brought before the Planning Board by an engineer whom you are dating, or to whom you are engaged or married, even though you may not be required to abstain on those particular matters by the law.

Your questions are answered accordingly.

QUESTION 3:

Would a prohibited conflict of interest exist were you, a member of a city planning board, to own an interest in the engineering firm of a member of the city council who also is an engineer appearing before the planning board on occasion?

In CEO 84-1 we reviewed a situation where a county commissioner owned and was an officer of an engineering and surveying firm that was doing business in the county. In CEO 82-65, we considered the question of whether a county commissioner could be an officer, director, and shareholder in her husband's engineering firm. In both of these opinions we considered the extent of the official's private interests and the nature and extent of the authority held by the official's agency over those interests.

Your letter of inquiry does not provide us with the factual details which are needed to determine whether such a conflict may exist. Therefore, we suggest that you review these opinions and seek another opinion in the event that your obtaining an interest in the engineering firm becomes likely.