CEO 75-118 -- May 27, 1975

VOTING CONFLICT OF INTEREST

CITY COUNCILMAN WITH POTENTIAL CONFLICTS IN SOLICITING ADVERTISING FOR NEWSPAPER

To: Joseph A. Wanick, City Attorney, Miami Beach

Prepared by: Carol Ann Turner

SUMMARY:

Section 112.3141, F. S. (1974 Supp.), provides that no public officer shall be prohibited from voting on any matter in his official capacity, but where a voting conflict of interest exists, he is required to file CE Form 4 disclosing the conflict. Where a public officer is called upon to vote on matters presented by members of the community from whom he solicits advertising business, he is urged to exercise discretion in determining whether or not a conflict exists in a particular situation and, if so, whether or not it would be prudent for him to vote on the matter.

QUESTION:

Is abstention from voting required where Dr. Simon Wikler, a member of the Miami Beach City Council, is called upon in his official capacity to vote on matters presented by members of the community from whom he solicits advertising business for a newspaper wholly owned by his wife?

This question is answered in the negative.

The Code of Ethics for Public Officers and Employees provides in pertinent part:

No public officer shall be prohibited from voting on any matter in his official capacity. However, when the matter being considered directly or indirectly inures to the public officer's particular private gain, as opposed to his private gain as a member of a special class or creates a conflict between such officer's private interests and his public duties he may abstain from voting on the matter and shall file a statement explaining the conflict with the appropriate officials. [Section 112.3141, F. S. (1974 Supp.).]

Abstentions from voting are thus anticipated under the terms of this law though, strictly speaking, that decision seems to be left to the discretion of the public officer. A policy of reasonable prudence would, in our view, encourage voluntary abstention in the circumstances of this case. Irrespective of this, however, where a conflict of interest of the type described in s. 112.3141, supra, exists, the facts are required to be disclosed on CE Form 4 and filed with both the city council and the Ethics Commission. It is important to note that there is a further element of relative consequence to be considered. The Legislature has provided guidance in this regard in the statement of legislative intent which prefaces the Code of Ethics:

[N]o officer . . . shall have any interest, financial or otherwise, direct or indirect, or engage in any business transaction, or professional activity . . . which is in substantial conflict with the proper discharge of his duties in the public interest. [Section 112,311(5), F. S.]

Accordingly, we would not view as substantial the possible loss of irregular advertising. We would, however, view the possible loss of a regular advertiser (such as a local grocer or theater) as substantial. Lacking specific facts, we cannot state with certainty where the line might be drawn in instances which may face Dr. Wikler. We will, of course, be happy to consider any particular situation which may arise and render an opinion based on specific facts, should you or Dr. Wikler wish that we do so.