CEO 75-212 -- December 15, 1975

VOTING CONFLICT OF INTEREST

CITY COMMISSIONER VOTING ON ISSUE REPRESENTED BY HER EMPLOYER

To: (Name withheld at the person's request.)

Prepared by: Bonnie Johnson

SUMMARY:

A voting conflict of interest is deemed to exist where a city commissioner is called upon to vote on issues relating to an employees' association, the attorney for which sits on the city council of the town of which the aforementioned city commissioner is the city clerk. In her private capacity as city clerk, the subject commissioner is appointed by and answers to the council of that city. In his capacity as councilman, the subject attorney exercises a significant degree of authority over the commissioner/clerk, and it is therefore deemed that she could suffer a detriment by taking a position opposing the interests of said councilman/attorney in matters before the commission on which she serves. Pursuant to s. 112.3143, F. S., a voting conflict of interest is deemed to exist in such instances, for the commissioner "has a personal, private, or professional interest which inures to [her] special private gain." The section further provides that she may therefore either abstain from voting on such matters or, should she choose to exercise her right to vote, must disclose the conflict via the filing of CE Form 4, Memorandum of Voting Conflict, within 15 days of the vote with the person responsible for the recording of the minutes of the meeting at which the vote occurred.

QUESTION:

Does a voting conflict of interest exist where a Largo City Commissioner is called upon to vote on issues relating to the Largo Employees' Association, a public employee union, whose attorney sits on the City Council of Belleair Beach, of which town the subject Largo commissioner is the appointed city clerk?

Your question is answered in the affirmative.

Section 2.07 of the Belleair Beach Charter provides that the city clerk is appointed by the city council. The clerk's duties include providing notice of council meetings, keeping a journal of council proceedings, and "other such duties as are assigned . . . by the Council." Further, paragraph three of Belleair Beach Ordinance No. 87 stipulates that the salary of the city clerk is to be set by the council in coordination with the mayor, while paragraph five provides that dismissal of the city clerk may be effected only by the city council.

The applicable section of the Code of Ethics for Public Officers and Employees provides as follows:

Voting conflicts. -- 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, as created by Ch. 75-208, Laws of Florida.]

We are of the opinion that a voting conflict of interest, as contemplated by the above-cited section, would exist were the subject Largo City Commissioner to be called upon to vote on a matter relating to the Largo Employees' Association whose attorney, in his capacity as a Belleair Beach Councilman, exercises a significant degree of authority over said commissioner in her role as City Clerk of Belleair Beach. The subject Largo Commissioner could suffer a detriment by taking a position opposing the interests of the Belleair Councilman while the public cause might suffer should she feel compelled always to side with his interests. She is thus placed in the position of having to choose between her private employment as City Clerk of Belleair and public duty as Largo City Commissioner.

Accordingly, we find that a voting conflict of interest would be created in the circumstances described. The city commissioner is not required to abstain from voting on matters relating to the employees' association, but she may, in her own discretion, choose to abstain. Should she decide to exercise her right to vote, however, she is required by s. 112.3143, cited above, to disclose the conflict. The vehicle for such disclosure is Commission on Ethics Form 4 (copy enclosed), which must be filed within 15 days of the vote with the person responsible for the recording of the minutes of the meeting at which the vote occurred.