VOTING CONFLICT

CITY MAYOR VOTING ON AMENDMENT TO CITY
BUDGET WHICH ESTABLISHES SALARY FOR MAYOR

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

SUMMARY:

Under the circumstances presented, Section 112.313(5), Florida Statutes, applies to shield a city mayor from a voting conflict under Section 112.3143(3)(a), Florida Statutes, regarding an amendment to the city budget that establishes the salary of the mayor.

QUESTION:

Does Section 112.313(5), Florida Statutes, apply to shield a city mayor from a voting conflict of interest under Section 112.3143(3)(a), Florida Statutes, regarding a vote on an amendment to the city budget that establishes the salary of the mayor?

Under the circumstances presented, your question is answered in the affirmative.

You write that earlier this year, the City of Apopka elected a new Mayor, the previous, very long-serving Mayor having held office for most of the nearly sixty years prior to the election. Further, in thoroughness, you state that the previous Mayor's salary was approximately $157,000 per year five years ago, was approximately $76,000 per year three years ago, and that in the last two years of his tenure as Mayor he received approximately $13,500 in health insurance premium payments, foregoing receipt of a conventional salary. You ask whether the current Mayor's voting on an amendment to the current annual City budget to establish the salary of the Mayor (amount, approximately $157,000) would present a voting conflict under Section 112.3143(3)(a), Florida Statutes, in light of Section 112.313(5), Florida Statutes. The statutes provide:

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. [Section 112.3143(3)(a), Florida Statutes.]

SALARY AND EXPENSES.-No public officer shall be prohibited from voting on a matter affecting his or her salary, expenses, or other compensation as a public officer, as provided by law. No local government attorney shall be prevented from considering any matter affecting his or her salary, expenses, or other compensation as the local government attorney, as provided by law. [Section 112.313(5), Florida Statutes.]

Absent applicability of Section 112.313(5), we find that the Mayor would be presented with a voting conflict regarding a vote/measure concerning his salary, inasmuch as such would inure to his special private gain or loss.¹ However, we find Section 112.313(5) to be applicable to the Mayor's situation, thus shielding him from a voting conflict. Clearly, in accord with the statute, the matter to be voted on affects the Mayor's salary; and there is provision in law for the City's consideration of such a matter. More particularly, Chapter 166, Florida Statutes (Municipalities), provides the City with extensive home rule powers, including "governmental, corporate, and proprietary powers to enable [it] to conduct municipal government, perform municipal functions, and render municipal services, . . .and [to] exercise any power for municipal purposes, except when expressly prohibited by law." Section 166.021(1), Florida Statutes. Also, the City Charter provides:

Sec. 2.01. Composition of city council.

A mayor and four city commissioners shall constitute the city council of the city (the "city council").

Sec. 2.03. Compensation; expenses of council.

The mayor and all members of the city council shall receive a salary as now provided by law and ordinance or as hereafter provided by the city council by law or ordinance. No change in the compensation ordinance for a city commissioner shall become effective until the duties of [sic] commencement of the terms of commissioners elected at the next regular election, provided that such election follows the adoption of such law or ordinance by at least six months. The mayor and each city commissioner shall be reimbursed from the city treasury to cover the expenditures naturally and necessarily incurred in the performance of their duties of office and said reimbursement procedure shall be established by ordinance and/or resolution. The mayor shall receive the salary established for the mayor in the annual budget.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 6, 2014, and RENDERED this 11th day of June, 2014.

____________________________________

Morgan R. Bentley, Chairman

^[1] In 2013, the Legislature codified the meaning of "special private gain or loss" to encompass only economic benefit or harm. Section 112.3143(1)(d), Florida Statutes; Chapter 2013-36, Laws of Florida.