VOTING CONFLICTS

APPLICABILITY OF VOTING CONFLICTS LAW TO BOARD MEMBER
OF THE FLORIDA HOUSING FINANCE CORPORATION

To: Name withheld at person's request (Tallahassee)

SUMMARY:

A member of the Board of Directors of the Florida Housing Finance Corporation is not a "state public officer" subject to the requirements of Section 112.3143, Florida Statutes. Under the circumstances presented, no voting conflict would be created because Section 112.3143 does not apply. The Board member would be permitted to abstain from voting under Section 286.012, Florida Statutes. CEO 82-33, CEO 90-46, and CEO 01-3 are referenced.¹

QUESTION 1:

Would a member of the Board of the Florida Housing Finance Corporation have a voting conflict of interest were a matter potentially affecting a client of his brother's firm to come before the Board?

Your question is answered in the negative.

In your letter of inquiry, you relate that you are the General Counsel of the Florida Housing Finance Corporation acting on behalf of a Member of the Board of Directors of the Corporation. You state that the Member's brother is employed by a law firm that is retained to lobby local governments on behalf of a developer. That developer, you advise, periodically has business before the Board. In a supplemental email, you relate that a measure is expected to come before the Board that would ban the developer from state funding for a period of time. The Board member wishes to know whether this would create a voting conflict for him pursuant to Section 112.3143, Florida Statutes. If no voting conflict is created, the member seeks to know whether he would be permitted to abstain pursuant to Section 286.012, Florida Statutes.

You state that the Corporation is a public corporation organized under Part V, Chapter 420, Florida Statutes, and serves as the State's housing finance agency. You further note that Sections 420.504 and 420.5061, Florida Statutes, specifically provide that the Corporation, while not a traditional state agency, is an instrumentality of the state subject to many of the same Florida statutes as are traditional state agencies, including Chapters 119 and 120, Florida Statutes, and Part I, Chapter 286, Florida Statutes.² Section 420.5061 specifically provides that the Corporation is subject to Section 112.313, Florida Statutes; however, neither Section 420.504 nor Section 420.5061 provide that the Corporation is subject to Section 112.3143. As a result, you relate that confusion has arisen as to whether the voting conflict law applies to this Board member.

Section 112.3143(2)(a), Florida Statutes, states:

A state public officer may not vote on any matter that the officer knows would inure to his or her special private gain or loss. Any state public officer who abstains from voting in an official capacity upon any measure that the officer knows would inure to the officer’s special private gain or loss, or who votes in an official capacity on a measure that he or she knows would inure to the special private gain or loss of any principal by whom the officer is retained or to the parent organization or subsidiary of a corporate principal by which the officer is retained other than an agency as defined in s. 112.312(2); or which the officer knows would inure to the special private gain or loss of a relative or business associate of the public officer, shall make every reasonable effort to 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. If it is not possible for the state public officer to file a memorandum before the vote, the memorandum must be filed with the person responsible for recording the minutes of the meeting no later than 15 days after the vote.

Section 112.3143(2)(a), Florida Statutes, provides that a state public officer may not vote on a measure under consideration that the officer knows would inure to his or her own special private gain or loss.³ It also provides that if the officer abstains from voting on any such measure, or votes on a measure the officer knows would inure to the special private gain or loss of any relative, the officer must disclose the nature of his or her interest by filing a memorandum (CE Form 8A) as to such a measure.

The threshold question, therefore, is whether members of the Board of the Corporation are "state public officers" within the meaning of Section 112.3143, Florida Statutes. Section 112.3143(1)(b) defines "public officer" to mean "any person elected or appointed to hold office in any agency, including any person serving on an advisory body." The term "agency" is defined by Section 112.312(2) to mean:

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; any public school, community college, or state university; or any special district as defined in s. 189.012.

The question then becomes whether the Corporation is an "agency" as defined in Section 112.312(2). To answer this question, we must look to the laws creating and governing this entity, as well as to its history. See, In re George Stuart, 16 FALR 1499, 1504 (COE 1994) and CEO 01-3.

The Corporation is the successor entity of the Florida Housing Finance Agency ("FHFA"). The FHFA's enabling legislation referred to it specifically as a "state agency and instrumentality," Section 420.504(1), Florida Statutes (1981), and in CEO 82-33 we found the FHFA to be a state agency. In 1997, the FHFA was replaced by the Corporation. Sec. 7, Ch. 97-167, Laws of Florida. As already noted, Section 420.504, Florida Statutes, in its current iteration, specifically states that the Corporation is an "agency" or "state agency" for purposes of Sections 120.52 and 159.807(4), subjects it to the provisions of Chapters 119 and 286, Florida Statutes, and requires its Board members to file full and public disclosure of financial interests. Section 420.5061 calls the Corporation "the legal successor in all respects to the agency," and expressly applies Section 112.313⁴ as well as the exemption of Section 112.313(9)(a)6 to the Board members and employees of the Corporation. However, nowhere in Chapter 420 does the Legislature state that the Corporation is an "agency" for purposes of the entire Code of Ethics, or that provisions of the Code other than Section 112.313 apply.⁵

The Legislature clearly had the opportunity to make the entire Code of Ethics applicable to the Corporation in Section 420.504, as it did in Section 627.351(6)(d)3, Florida Statutes, with respect to certain board members and employees of Citizens Property Insurance Corporation. Alternatively, it could have specifically included Section 112.3143 along with Section 112.313 as ethics laws applicable to Corporation Board members, as it did with respect to members of Early Learning Coalitions in Section 1002.83(8), Florida Statutes. That it did neither indicates that the Legislature intended only the section of the Code specifically identified—Section 112.313—to apply to the Corporation.

This conclusion is buttressed by the application of the canon of statutory construction expressio unius est exclusio alterius, under which "the mention of one thing implies the exclusion of another." State v. Hearns, 961 So. 2d 211 (Fla. 2007); Thayer v. State, 335 So. 2d 815 (Fla. 1976). In Thayer, the Supreme Court stated that the where a statute enumerates the things on which it is to apply, or forbids certain things, it is ordinarily construed as excluding from its operation all those not expressly mentioned. See also, Siegle v. Lee County, 198 So. 3d 773 (Fla. 2d DCA 2016). In Siegle , the court stated that "when a statute or code provision lists the areas to which it applies, it will be construed as excluding from its reach any areas not expressly listed." Siegle at 775. There the court concluded that a county's decision to list the specific categories of proceedings to which equitable defenses do not apply in a county code provision, indicated its intent to permit consideration of equitable defenses in all proceedings other than those listed in the code provision.

Application of this maxim, combined with the Legislature's reference to the Corporation as an "agency" only for certain purposes and inclusion of only one section of the Code, leads us to conclude that the Corporation is not an agency under the definition found in Section 112.312(2), and members of its Board are not state public officers for purposes of Section 112.3143. Similarly, we find that the Legislature intended to exclude any provision of the Code of Ethics other than Section 112.313 from applying to the Corporation, including Section 112.3143, the voting conflicts law.

Accordingly, we find that no voting conflict of interest would be created for the Board member, because of the inapplicability of Section 112.3143, Florida Statutes.

QUESTION 2:

Is a member of the Board of the Florida Housing Finance Corporation permitted to abstain under Section 286.012, Florida Statutes, when a matter potentially affecting a client of his brother's law firm comes before the Board?

Your question is answered in the affirmative.

Section 420.504(2), Florida Statutes, expressly makes Chapter 286, which deals with open meetings, applicable to the Corporation. Section 286.012, Florida Statutes, states:

VOTING REQUIREMENT AT MEETINGS OF GOVERNMENTAL BODIES. - A member of a state, county, or municipal governmental board, commission, or agency who is present at a meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may not abstain from voting in regard to any such decision, ruling, or act; and a vote shall be recorded or counted for each such member present, unless, with respect to any such member, there is, or appears to be, a possible conflict of interest under s. 112.311, s. 112.313, s. 112.3143, or additional or more stringent standards of conduct, if any, adopted pursuant to s. 112.326. If there is, or appears to be, a possible conflict under s. 112.311, s. 112.313, or s. 112.3143, the member shall comply with the disclosure requirements of s. 112.3143. If the only conflict or possible conflict is one arising from the additional or more stringent standards adopted pursuant to s. 112.326, the member shall comply with any disclosure requirements adopted pursuant to s. 112.326. If the official decision, ruling, or act occurs in the context of a quasi-judicial proceeding, a member may abstain from voting on such matter if the abstention is to assure a fair proceeding free from potential bias or prejudice.

You inquire whether the Board member would be permitted by Section 286.012 to abstain under the circumstances presented in Question 1.

Section 286.012 requires a Board member to vote on matters coming before the Board unless there is, or appears to be, a possible conflict of interest under the enumerated provisions of Part III, Chapter 112, Florida Statutes. If there is, or appears to be, a possible conflict under these provisions, the statute allows the member to abstain and comply with the disclosure and filing requirements of Section 112.3143. The only exception to the requirement to vote is when there is, or there appears to be, a conflict of interest under Section 112.311, Section 112.313, or Section 112.3143, Florida Statutes. For the reasons stated above, Section 112.3143 is inapplicable, as is Section 112.311. However, Section 112.313 does apply to the Corporation.

The only provision of Section 112.313, Florida Statutes, potentially implicated by your question is Section 112.313(6), which provides:

MISUSE OF PUBLIC POSITION.—No public officer, employee of an agency, or local government attorney shall corruptly use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others.

Section 112.313(6) prohibits a public officer or employee from "corruptly" using or attempting to use his or her official position in order to secure a special privilege, benefit, or exemption for himself, herself, or another. The term "corruptly" is defined in Section 112.312(9), Florida Statutes, as an action:

done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties.

This provision would prohibit the Board member from using or attempting to use his official position to secure a special privilege or benefit for himself or his brother, where his actions are taken with wrongful intent and for the purpose of obtaining the benefit and are inconsistent with the proper performance of his public duties. To the extent it could be argued that by voting on the measure in question, the Board member would be using his public position to secure a special benefit for his brother, there could be, or at least there could be the appearance of, a violation of Section 112.313(6). The Commission has previously opined that Section 286.012 can be interpreted to permit a public official to abstain upon a good faith belief that he may have a potentially conflicting interest under the provisions of the Code of Ethics. See, CEO 90-46. Thus, under these circumstances, the Board member may abstain if he has a good faith belief that by voting on the measure in question, he could be violating Section 112.313(6). It is important to note that if the Board member abstains pursuant to Section 286.012, he must comply with the disclosure requirements of Section 112.3143(2)(a).

This question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 9, 2017, and RENDERED this 14th day of June, 2017.

____________________________________

Matthew F. Carlucci, Chair

^[1]Commission opinions are available at: www.ethics.state.fl.us

^[2]In addition, Section 420.504(2), Florida Statutes, specifically provides that the Corporation is a state agency for purposes of Section 159.807(4), and Section 420.504(7), Florida Statutes, requires that each member of the Board file full and public disclosure of financial interests.

^[3]Section 112.3143(1)(d), Florida Statutes, defines "special private gain or loss" as "an economic benefit or harm that would inure to the officer, his or her relative, business associate, or principal. . . ."

^[4]In CEO 01-3, we found the Corporation to be a "state agency" for purposes of Section 112.313(9)(a)3, Florida Statutes.

^[5]Such as Section 112.3135, Florida Statutes (the Nepotism Law) and Section 112.3185, Florida Statutes (post-employment restrictions).