CEO 76-200 -- November 18, 1976

CONFLICT OF INTEREST

MAYOR PRESIDING, BUT NOT VOTING, ON A MATTER IN WHICH HE HAS A CONFLICT

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

Prepared by: Roger Merriam

SUMMARY:

Pursuant to Florida Statute s. 112.3143(1975), a Memorandum of Voting Conflict must be filed only when a public officer votes on a matter 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. Accordingly, where a mayor presided at a council meeting but did not vote on the issue of granting a zoning exception for property to be used by a bank which competes with the bank of which the mayor is a director, said mayor is not required to file a conflict memorandum. However, nothing in the Code of Ethics would prohibit his declaring a private interest to be made a part of the minutes, should he desire to preclude even the appearance of impropriety.

QUESTION:

Am I, the mayor of a municipality, required to file a Memorandum of Voting Conflict where the city council, over which I preside votes on a zoning exception for property to be used by a bank which will compete with the bank of which I am a director?

Your question is answered in the negative.

You inform us in your letter of inquiry that you are the mayor of a city and that, pursuant to the city charter, you preside at meetings of the city council but are empowered to vote only in the event of a tie. You have informed our staff that recently you presided at a council meeting in which there was a vote on granting a zoning exception for property to be used by a bank which will compete with the bank of which you are a director. The vote did not result in a tie, and therefore you did not vote on the matter. You wish to know, however, whether you nonetheless have the duty to make public disclosure of your private interest.

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 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).]

Accordingly, a Memorandum of Voting Conflict, CE Form 4, is required to be filed only where a voting official actually votes on a matter in which he has a private interest which inures to his gain or to that of a client. Inasmuch as you did not vote on the matter described above, you are not required to disclose. However, nothing in the Code of Ethics would prohibit your declaring a private interest to be made a part of the minutes, should you so desire, in an effort to preclude even the appearance of impropriety.