CEO 76-51 -- March 16, 1976

VOTING CONFLICT OF INTEREST

COUNTY COMMISSIONER'S SON REPRESENTING CLIENT BEFORE THE COMMISSION

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

Prepared by: Bonnie Johnson

SUMMARY:

The section of the Code of Ethics dealing with voting conflicts of interest provides that no officer may be prohibited from voting in his official capacity. Implicitly, however, an officer may elect to abstain from voting where, in his discretion, his independence and impartiality are threatened or appear to be threatened pursuant to Fla. Stat. s. 112.311(1)(1975) read in conjunction with s. 286.012(1975). Accordingly, a county commissioner may choose to abstain from voting where his son appears before the commission in behalf of a client. Alternately, the commissioner may exercise his right to vote, whereupon no disclosure is required inasmuch as no conflict is created under s. 112.3143(1975).

QUESTION:

Under the Code of Ethics for Public Officers and Employees, what is required of a county commissioner whose son represents clients before the board of county commissioners?

The Code of Ethics provides in relevant part:

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. [Fla. Stat. s. 112.3143(1975).]

This provision clearly states that no public officer shall be required to abstain from voting regardless of the situation. Implicitly, however, one may elect to abstain from voting where, in his discretion, his independence and impartiality are threatened or appear to be threatened pursuant to Fla. Stat. s. 112.311(1)(1975) read in conjunction with Fla. Stat. s. 286.012(1975). Should an officer choose to abstain from voting on the above grounds, no further procedures are necessary.

The above-cited section further provides, however, that where an officer votes on a matter in which he has a personal, private, or professional interest which inures to his gain or that of a client, he must file a Memorandum of Voting Conflict, CE Form 4, with the person keeping the minutes of the meeting at which such vote occurred. In the instant situation, the subject commissioner would not in our view personally stand to gain from his son's representation of a party to the matter. Therefore, should he choose to vote, he is not required by s. 112.3143 to file Form 4.

In summary, the subject commissioner may choose to abstain from voting on the basis of a conflict of interest pursuant to s. 112.311(1). Alternately, he may exercise his right to vote pursuant to s. 112.3143 whereupon, since no conflict exists under this section, no disclosure is required.