VOTING CONFLICT

CITY MAYOR PURCHASING SERVICES FROM WEBSITE MANAGER

To: Isabelle Lopez, City Attorney for City of St. Augustine

SUMMARY:

For purposes of the voting conflicts law, a mayor/commissioner is not a “business associate” of a person or entity performing the service of hosting and managing the mayor/commissioner's personal website. CEO 09-12, CEO 08-01, CEO 01-017, and CEO 80-49 are referenced.¹

QUESTION:

For purposes of the voting conflicts law, Section 112.3143(3)(a), Florida Statutes, is a person or entity from whom a mayor/commissioner purchases personal website hosting and management a “business associate” of the mayor/commissioner?

Your question is answered in the negative.²

In your letter of inquiry and communications with our staff, you request this opinion on behalf of a city mayor who maintains a personal website designed, hosted, and maintained by a company (in which the mayor holds no equity, office, or directorship) that also produces an online publication. In response to questions from our staff, the mayor elaborated that the company's web hosting (providing space on a server and Internet connectivity) and maintenance of her personal website is a month-to-month arrangement under which the company provides web hosting, domain registration, website design and development, content management, and social media updates. Other services provided to the mayor by the company under this purchasing arrangement are the use of hard disk space, the use of hardware and software, and backup and security services. The mayor stated that she occasionally selects for her website certain local news content that is cross-linked from the company's publication's website and that she pays the company no additional fees for the use of such content. She also stated that she directs the company as to management tasks concerning her website and compensates the company with her personal funds for the services of hosting and managing her website, which contains no third-party advertising.

You ask whether the mayor is a “business associate” of the company such that a voting conflict is created for the mayor regarding a measure to fund litigation brought by another city commissioner against the company's publication. Your inquiry implicates Section 112.3143(3)(a), Florida Statutes, which provides:

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. [Emphasis supplied.]

This provision requires a local public officer (e.g., a mayor) to abstain from voting and to make appropriate disclosures regarding measures (votes) which would inure to the special private gain or loss of her “business associate” or certain other persons or entities listed in the statute.³

In CEO 01-017, we concluded that for persons to come within the definition of “business associate” as to one another they must be “engaged in a common, commercial pursuit (a 'business enterprise'); it is not sufficient that they merely occupy a certain label or nominal status in relation to each other.” The term “business associate” is defined in Section 112.312(4), Florida Statutes, to mean

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

Under the facts presented, there is no indication that the mayor and the company have engaged in a common, commercial pursuit (a “business enterprise”) within the meaning of the statute. Rather, the information provided indicates that the mayor has purchased services from a company in which she has no ownership and where she exercises no control. You relate that the mayor's cross-posting on her website from the company's publication's website could generate additional Internet traffic—and possible increased advertising revenue—for the company. However, such incidental benefit, if it were to materialize, would not constitute the fruits of a “business enterprise” given the absence of any effort by either the mayor or the company to jointly create a commercial or profit-making undertaking. In essence, the relationship appears to be merely a contractual vending of services to the mayor from a service provider (the company). See CEO 09-12, CEO 08-01, and CEO 80-49. In light of the foregoing, we find that the company is not a business associate of the mayor and, therefore, Section 112.3143(3)(a), Florida Statutes, would not prohibit the mayor from voting on a measure as to a lawsuit by another commissioner against the company's publication.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 11, 2015, and RENDERED this 16th day of December, 2015.

____________________________________

Stanley M. Weston, Chair

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

^[2]You present two questions in your inquiry. However, since both of your questions concern the same material issue, this opinion combines them into a single question.

^[3]We see no indication that a measure (vote) to authorize city funds to bring a defamation lawsuit against the publication on behalf of another commissioner would inure to a special private gain or loss for the mayor herself.