CEO 90-46 -- June 14, 1990

CONFLICT OF INTEREST; VOTING CONFLICT

CITY COUNCIL MEMBER RETAINED BY FIRM, PRINCIPAL

OF WHICH IS UNDER CONTRACT TO BUSINESS DOING

BUSINESS WITH THE CITY

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

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were a city council member to be retained by a real estate firm, a principal of which is personally retained by a company owning a proposed landfill site, and by a waste management company seeking approval to construct a landfill. In addition, no voting conflict of interest would be created under Section 112.3143, Florida Statutes, were the council member to vote to waive certain requirements in the city's purchasing code to accelerate the landfill siting process. Under the circumstances, the vote would not personally benefit the council member or the firm which retains him. Also, the vote may be preliminary or procedural in its effect on the companies involved rather than representing any special private gain. Whether other votes involving the companies retaining the president of the council member's employing company would create voting conflicts would depend on the measure considered and whether it would inure to the special private gain of the firm employing the council member rather than benefiting the president of the firm personally.

QUESTION:

Would a prohibited conflict of interest or a voting conflict be created were you, a City Councilman, to be retained by a company doing business with companies doing business with the City?

Your question is answered in the negative, subject to the conditions noted below.

In your letter of inquiry, you advise that you are a member of the Jacksonville City Council. You advise that the City currently is seeking a site for a new landfill to address increasing solid waste problems. An ordinance has been introduced to waive certain requirements in the City's purchasing code to accelerate this siting process. You advise that you also are a commissioned real estate salesman associated with a local firm. The firm has been retained as a consultant for a paper company with regard to land holdings in a neighboring county. This company also owns land within the county which is under option by two waste disposal companies for the new landfill site. You note that the waste disposal companies negotiated these options directly with the company without the involvement of the firm with which you are associated or its president. There is no agreement to compensate the firm or president through sale of this land. In addition, the president of the firm has been retained as a consultant by one of the waste disposal companies for assistance with siting procedures. You advise that he has been retained personally rather than through the firm, although the check representing his compensation is made payable to the firm. You advise that you do not receive any compensation as a result of this arrangement. The real estate firm which retains you is a Florida corporation, and the president and his son are the only officers and shareholders. You inquire whether your relationship with the firm creates a prohibited conflict of interest, given the president's business dealings with the paper company owning the proposed landfill site and one of the two waste disposal companies seeking approval to construct the landfill.

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.

This provision would prohibit you from having a contractual relationship with a business entity doing business with the City. However, your contractual relationship is with the real estate firm, rather than with any of the companies which may have dealings with the City. On this basis, the cited provision would not apply.

You also inquire whether you may vote on the ordinance to waive purchasing rules to accelerate the siting process or on other matters involving the landfill that would affect the waste disposal companies or the paper company owning the proposed site. The voting conflict provision applicable to local officers provides:

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 would prohibit you from voting on any matter which would inure to your special private gain or that of a principal by whom you are retained. With regard to the proposed ordinance to accelerate the siting process by waiving portions of the City's purchasing code, while this could benefit the companies involved, their relationship is with the president of the firm employing you in his personal capacity, rather than with the firm itself. On this basis, the proposed ordinance would not inure to your special private gain or that of a principal by whom you are retained. See CEO 83-71 and CEO 82-88. This is based on the fact that the president of your firm is retained personally and the firm itself has no contractual relationship involving the landfill sites with any of the companies involved. We also note that the proposed ordinance may be considered to be only preliminary or procedural and that such a vote may not create a special private gain under this section. See CEO 83-50. With regard to other votes involving the companies, the same rationale would apply. Where the vote would not benefit the firm which retains you, but rather only the president in his personal capacity, no voting conflict would be present. If you have concerns regarding a specific vote before the Council, we would advise you to seek additional guidance.

However, you may wish to abstain from voting on particular measures involving the companies and the president of the firm which is your employer, as you indicate you have in the past. We note that the compensation from the waste management company is being paid to the firm and that the president is one of only two officers and shareholders in the firm. Under these circumstances, you may wish to avoid even the appearance of conflict by abstaining pursuant to Section 286.012, Florida Statutes, which we have interpreted to permit a public official to abstain upon a good faith belief that he may have a potentially conflicting interest under provisions of the Code of Ethics for Public Officers and Employees.

In addition, we would caution you with regard to the provisions of Section 112.313(6), Florida Statutes:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

Any action which would have the effect of improperly favoring the president of the real estate firm or his clients may be perceived as a potential violation of this provision. On this basis also, you may wish to abstain from consideration of or voting on these matters as they come before the Council.

Accordingly, we find that no prohibited conflict of interest would be created were you, a City Council member, to be retained by a real estate firm, the president of which is retained personally by a company owning a proposed landfill site and by a waste management company seeking approval to construct a landfill. In addition, we find that no voting conflict of interest would be created were you to vote to waive certain requirements in the City's purchasing code to accelerate the landfill siting process.