CEO 75-145 -- July 9, 1975

CE FORM 4

FILING REQUIRED UPON ABSTENTION FROM VOTING

To: R. J. Fegers, South Broward Hospital District Board of Commissioners, Hollywood

Prepared by: Jeff Trammel

SUMMARY:

Where a local ordinance prohibits an officer from voting in a conflict-of-interest situation, such ordinance is in direct contradiction with the state statute, s. 112.314(2), F. S. (1974 Supp.), which provides that no officer "shall be prohibited from voting on any matter in his official capacity." Such local ordinance therefore is invalid to the extent of the conflict with state law. Local governments may adopt more stringent codes of ethics than the state code, however, so long as the state law is not contradicted. Reference is made to CEO 75-20.

Hospital Board Commissioners therefore may vote even in the face of a conflict of interest, but they are required to file a written disclosure of the conflict, pursuant to s. 112.314(2), regardless of whether they vote or abstain. Such filing is currently made on CE Form 4. After October 1, 1975, however, the revised standards of conduct provide that such disclosure be made in the form of a memorandum filed with the persons recording the minutes of the meeting in which the voting conflict occurred.

QUESTION:

If a member of the Board of Commissioners of the South Broward Hospital District abstains from voting because of the Broward County ordinance prohibiting voting in conflict-of-interest situations, must he file disclosure of such conflict on CE Form 4 with the Ethics Commission?

The question of abstention from voting in conflict-of-interest situations is addressed in s. 112.314(2), F. S. (1974 Supp.):

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.

This statute allows a public officer to vote in such a situation but requires a written disclosure of the conflict.

Broward County Ordinance 75-6, s. 5 apparently is in direct contradiction with the above provision of the Florida Code of Ethics. The ordinance requires that a public officer with conflicting interests must abstain from voting in any determination affecting this conflict.

In such contradictory situations, the state law is superior to the local law. In a previous opinion of this commission, CEO 75-20, we recognized the superiority of the state law as promulgated by the Florida Supreme Court in Rinzler v. Carson, 262 So.2d 661, 668 (Fla. 1972):

Municipal ordinances are inferior in stature and subordinate to the laws of the state. Accordingly, an ordinance must not conflict with any controlling provision of a state statute, and if any doubt exists as to the extent of a power attempted to be exercised which may affect the operation of a state statute, the doubt is to be resolved against the ordinance and in favor of the statute. A municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden. (Emphasis supplied.)

See also City of Wilton Manors v. Starling, 121 So.2d 172 (2 D.C.A. Fla., 1960).

As the Broward County code of ethics prohibiting public officers from voting in conflict-of-interest situations is in contradiction with the state Code of Ethics, the Broward County code is invalid to the extent of the conflict with state law. This should not be construed to imply that local governments may not adopt more stringent codes of ethics than the state code, however. See CEO 75-20, a copy of which is enclosed.

It follows that the members of the Board of Commissioners of the South Broward Hospital District may vote in conflict situations pursuant to s. 112.314(2), supra, but are required to file a written disclosure of any conflict regardless of whether they vote or abstain. Currently, copies of the disclosure of voting conflicts of interest, CE Form 4, must be submitted within 15 days to the body of which the officer is a member and to the Commission on Ethics. As of October 1, 1975, however, a new procedure enacted by the 1975 Legislature will take effect which requires only that "within fifteen days after the vote occurs [the public officer] disclose the nature of his interest as a record in a memorandum filed with the person responsible for recording the minutes of the meeting who shall incorporate the memorandum in the minutes."

In summary, the members of the Board of Commissioners of the South Broward Hospital District have discretion to vote or to abstain from voting in conflict-of-interest situations, but CE Form 4 must be filed subsequent to every conflict. Broward County Ordinance 75-6 is abrogated only to the extent to which it conflicts with part III, Ch. 112, F. S.