CEO 76-23 -- February 13, 1976

CONFLICT OF INTEREST

CITY COUNCILMAN DOING BUSINESS WITH CITY

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

Prepared by: Gene Rhodes

SUMMARY:

Pursuant to the prohibition set forth in Fla. Stat. s. 112.313(3)(1975), a gas company whose vice-president sits on a city council may not sell LP gas to the city. Nor may the council purchase gas from said company so long as its vice-president sits on the council. Similarly, a city councilman who owns a welding business may not sell welding services to the city. Fla. Stat. s. 286.012(1973) does not contradict Fla. Stat. s. 112.3143(1975). The former statute provides that voting officials must register a vote on every matter unless there exists or appears to exist a conflict of interest under enumerated provisions of the Code of Ethics. Where such conflict is manifest, s. 112.3143 provides that the officer may abstain from voting; or, if he chooses to exercise his right to vote on such matter, he must file CE Form 4, Memorandum of Voting Conflict, with the person responsible for keeping the minutes of the meeting at which the vote occurred.

QUESTIONS:

1. Would a prohibited conflict of interest be created if a corporation whose vice-president is a city councilman were to bid to sell LP gas to the city?

2. Would a prohibited conflict of interest exist if a city councilman were to sell welding services to the city?

3. Does Fla. Stat. s. 286.012(1973) contradict Fla. Stat. s. 112.3143(1975) relative to public officers in voting situations?

Question 1 is answered in the affirmative.

Your letter of inquiry advises us that the subject corporation currently does no business with the city. At one time, however, the city purchased LP gas from said corporation, and it is possible that such business would be contracted in the future. The city council is responsible for approving such business contracts. The subject councilman, we understand, holds no interest in the corporation.

The Code of Ethics for Public Officers and Employees states in relevant part:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment.

[Fla. Stat. s. 112.313(3)(1975).]

The first sentence of the above-quoted provision clearly prohibits a public officer from acting in his official capacity to purchase goods for his agency from a business entity of which he is an officer. In a former opinion of this commission, CEO 75-201, we took the view that being a member of a voting body constitutes acting in one's official capacity relative to action taken by the body as a whole. Under this interpretation, the subject city councilman is prohibited from holding that public position and concurrently being vice-president of the gas company if the city council purchases gas from said company.

The second sentence of the above-quoted provision prohibits a public officer from acting in a private capacity to sell goods to his own agency. In our view an officer of a corporation selling to that officer's agency is acting in his private capacity to sell. See CEO 76-5. Consequently, the subject city councilman is prohibited from holding that public position and concurrently being vice-president of the gas company if said company sells gas to the city council.

Question 2 is answered in the affirmative.

You have advised us that the subject city councilman is the owner of a welding business which has previously provided welding services to the city. He does not now do business with the city but may desire to do so in the future. All contracts with the city are approved by the city council.

For purposes of Fla. Stat. s. 112.313(3), quoted in question 1 above, the owner of a material interest in a business entity is in the same position as an officer of a business entity. Accordingly, the answer to this question is substantially the same as that part of the answer to question 1 above dealing with s. 112.313(3). This question is answered accordingly in the affirmative.

Question 3 is answered in the negative.

Chapter 286 states in relevant part:

VOTING REQUIREMENT AT MEETINGS OF GOVERNMENTAL BODIES. -- No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act, and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is or appears to be a possible conflict of interest under the provisions of s. 112.311, s. 112.313, or s. 112.3143. In such cases said member shall comply with the disclosure requirements of s. 112.3143. [Fla. Stat. s. 286.012, amended by Ch. 75-208, Laws of Florida.]

The Code of Ethics for Public Officers and Employees states 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 and 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).]

Read in conjunction, these statutes provide that no public officer may abstain from voting unless he has or appears to have a conflict of interest pursuant to the enumerated provisions of the Code of Ethics. Where the public officer perceives a conflict, he looks to s. 112.3143, which offers two alternatives: He may exercise his right to vote in spite of the conflict, whereupon he is required to file a Memorandum of Voting Conflict (CE Form 4), or he may abstain from voting on the matter.