CEO 75-194 -- October 28, 1975

VOTING CONFLICTS

MEMBERS OF VILLAGE COUNCIL AND CHURCH CLOSING STREET DIVIDING CHURCH PROPERTY

To: Richard M. Lund, Miami Shores Village Attorney, Miami

Prepared by: Gene Rhodes

SUMMARY:

Section 112.3143, F. S., as amended by Ch. 75-208, Laws of Florida, provides that, although no public officer may be prohibited from voting on any matter in his official capacity, where his vote inures to his special private gain or to the gain of a client, voting disclosure must be made within 15 days of the vote. Accordingly, where members of a village council are called upon to vote on an issue benefiting a church of which they all are members, the action each chooses to take most likely will affect his relationship with his fellow churchmen. He therefore must file a voting conflict disclosure, CE Form 4, with the keeper of the minutes of the meeting should he choose to exercise his right to vote on the issue. The Code of Ethics contains no provision relating to the village attorney, who is also a member of the subject church. He may, however, wish to seek an opinion from The Florida Bar as to whether his advising the council in this situation would violate any provision of the Code of Professional Responsibility.

QUESTIONS:

1. Must those members of the Miami Shores Village Council who are also members of the Miami Shores Presbyterian Church abstain from voting on the question of closing a street which is abutted on each side by the aforementioned church?

2. Would consideration of the matter set forth in question 1 by the village council require that the concerned councilmen file a Memorandum of Voting Conflict, CE Form 4, following the vote?

3. Would a conflict of interest exist if I, as Miami Shores Village Attorney and a member of the Miami Shores Presbyterian Church, advised the village council on the question of closing a street under the circumstances set forth in question 1?

Question 1 is answered in the negative.

Your letter of inquiry advises us that:

the Director of Traffic and Transportation of Metropolitan-Dade County recommended that a portion of Park Drive, located within the Village of Miami Shores between N.E. 95th Street and N.E. 96th Street, be closed to eliminate traffic hazards.

You further advise us that:

the Miami Shores Presbyterian Church owns the property on each side of the right-of-way occupied by the aforementioned portion of Park Drive.

The closing of this portion of Park Drive, you note, would inure to the benefit of the church. Finally, you point out that four of the five members of the Miami Shores Village Council are members of the Miami Shores Presbyterian Church.

The Code of Ethics provides in relevant part:

No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest which inures to his special private gain, or the special gain of any principal by whom he is retained, shall within 15 days after the vote occurs disclose the nature of his 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, F. S., created by Ch. 75-208, Laws of Florida.]

Thus, under no circumstances would any of the concerned councilmen be required to abstain from voting. They may abstain, however, as a matter of their own discretion when a conflict of interest exists.

Question 2 is answered in the affirmative.

As you have indicated, the closing of the street in question will inure to the benefit of the Miami Shores Presbyterian Church. Those council members who are also members of the church will stand to benefit along with the other church members as a result of the street-closing action. Regardless of how each member votes, or whether he votes at all, it seems likely that he will be affected in his personal relationships with his fellow churchmen by virtue of the action he takes. The legislative declaration of policy contained in the Code of Ethics states in part that "[i]t is essential to the proper conduct and operation of government that public officials be independent and impartial . . . ."

Weighing the provisions of the code in light of the facts before us, we feel that there is a high probability that the impartiality of these members will be affected by their church affiliation. Furthermore, we conclude that a "special private gain" as contemplated by s. 112.3143, supra, would inure to these council members. In such cases the revised Code of Ethics for Public Officers and Employees merely requires the filing of a CE Form 4 with the person responsible for keeping the minutes of the meeting within 15 days following the meeting during which the vote occurred.

Question 3 is answered in the negative.

As Village Attorney for Miami Shores you are employed to render legal advice when called upon relative to the operations of the municipality. You exercise no vote on the council and have no other policymaking role with the village. We find no conflict to exist under the Code of Ethics between your private interests and public duties. However, you may wish to consider seeking an opinion from The Florida Bar as to whether this situation would violate any provision of the Code of Professional Responsibility.