VOTING CONFLICT

COUNTY COMMISSIONER VOTING ON MEASURE AFFECTING CORPORATE
PARENT AND OWNER OF THE CORPORATION WHICH EMPLOYS HER

To: Melissa Powers, Assistant County Attorney (Brevard County)

SUMMARY:

A voting conflict of interest would be created under Section 112.3143(3)(a), Florida Statutes, were a county commissioner to vote on the rezoning request of the parent corporation and owner of the business entity which employs her. Under the statute, the vote/measure would inure to the special private gain or loss of a principal by whom the member is retained. CEO 85-5, CEO 88-27, CEO 94-10, CEO 03-13, and CEO 11-6 are referenced.¹

QUESTION:

Would a voting conflict of interest be created were a county commissioner to vote on the rezoning application of the holding company that owns the corporation which is her employer?

Your question is answered in the affirmative.

In your letter of inquiry you state that you are requesting this opinion on behalf of a member of the Brevard County Commission (member). You state that in her private capacity the member is employed as a nurse practitioner with Health First Medical Group, LLC. You relate that Health First Medical Group, LLC, is a wholly-owned subsidiary of Health First, Inc., a not-for-profit holding company that owns, manages, and controls its affiliate and subsidiary corporations via a multi-entity structure through appointment of a Board of Trustees.

You state that Health First, Inc., has submitted a request to rezone a parcel of land it owns from commercial (BU-1 and BU-2) to Planned Unit Development (PUD) with a hospital, medical offices, and a restaurant, which request must come before the County Commission. You relate that Health First, Inc., indicates that it will be constructing a "Wellness Village" on the property which will provide a variety of wellness services in one centralized location. You indicate that, if approved, Health First Medical Group, LLC, the entity which employs the Commissioner, may be a tenant in one of the office buildings, according to Health First, Inc., representatives.

The portion of the Code of Ethics for Public Officers and Employees (Code of Ethics) relevant to your inquiry is Section 112.3143(3)(a), Florida Statutes, which provides:

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) prohibits the member from voting on, and requires disclosure and filing (CE Form 8B) regarding, any measure which would inure to the special private gain or loss of herself, her relative, her business associate, or a principal by whom she is retained. The term "principal by whom retained" is defined, in Section 112.3143(1)(a), Florida Statutes, to mean:

an individual or entity, other than an agency as defined in s. 112.312(2), that for compensation, salary, pay, consideration, or similar thing of value, has permitted or directed another to act for the individual or entity, and includes, but is not limited to, one's client, employer, or the parent, subsidiary, or sibling organization of one's client or employer. [emphasis added]

Thus, the definition of "principal by whom retained" contained in Section 112.3143(1)(a) provides that a voting conflict is present when a public officer is presented with a vote/measure which would inure to the special private gain or loss of his or her client, employer, or the parent, subsidiary, or sibling organization of his or her client or employer. Further, in CEO 03-13, the Commission found a voting conflict of interest would be created were a city council member to vote on measures concerning expansion of a medical center owned by a corporation that was owned by another corporation which owned yet another corporation which owned still another corporation which employed the member, finding that the term "organization" means a voting conflict goes beyond the first level of a business entity structure. Additionally, the Commission has found that a zoning or land use change inures to the special private gain or loss of the owners of the property. See, for example, CEO 85-5, CEO 88-27, CEO 94-10, and CEO 11-6 (Question 4).

In the instant matter, the County Commission's vote/measure on the rezoning request posited by Health First Inc., would inure to the special private gain or loss of Health First Inc., the owner of the property at issue and the corporate parent and owner of Health First Medical Group, LLC, the business entity that employs the subject Commissioner, and, thus, a principal by whom the member has been retained (employed). Thus, we find that the member must abstain from voting on the rezoning request submitted by Health First, Inc., and follow the instructions for local public officers on CE Form 8B; publicly announce the nature of her interest in the measure prior to any vote associated therewith; and file a memorandum of voting conflict (CE Form 8B) with the meeting's recording officer within 15 days after such a vote occurs.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 23, 2020, and RENDERED this 28th day of October, 2020.

____________________________________

Daniel Brady, Chair

^[1]Prior opinions ofde the Commission on Ethics can be viewed at www.ethics.state.fl.us.