CEO 77-56 -- April 21, 1977

VOTING CONFLICTS; APPLICABILITY OF DISCLOSURE LAW

COUNTY COUNCIL OF ARTS AND SCIENCES

To: Parker Thomson, Chairman, Metropolitan Dade County Council of Arts and Sciences, Miami

Prepared by: Bonnie Johnson

SUMMARY:

Members of a county council of arts and sciences constitute local officers subject to the annual filing of financial disclosure inasmuch as the duties of the council are not solely advisory in nature. See ss. 112.3145(1)(a)2. and (2)(b) and 112.312(1), F. S. 1975. Were the council to adopt a policy calling for members to recuse themselves from voting where they have conflicts, such policy does not violate the state law relating to voting conflicts so long as the decision to vote or to abstain from voting rests finally with the voting officer. Section 112.3143, F. S. 1975, provides that no public officer shall be prohibited from voting on any matter. Reading this provision in conjunction with s. 286.012, which requires a voting officer to vote unless he has a conflict under particular sections of the Code of Ethics, including s. 112.311, a public officer may abstain from voting on any matter in which he cannot be independent and impartial or in which it appears that he cannot be independent and impartial. Accordingly, the council's policy as to voting abstention is within state law so long as the officer is never required to abstain.

QUESTIONS:

1. Are members of the Metropolitan Dade County Council of Arts and Sciences "local officers" subject to the annual filing of financial disclosure?

2. Are certain policies relative to voting conflicts of interest which are under consideration by the council consistent with a conjunctive reading of ss. 112.3143 and 286.012, F. S. 1975?

Question 1 is answered in the affirmative.

You advise in your letter of inquiry and accompanying materials that the Metropolitan Dade County Council of Arts and Sciences (council) was created by County Ordinance No. 76-34 for the purpose of increasing the appreciation of the arts and sciences among county citizens. By terms of the ordinance, the council is empowered in part to provide financial support to Florida artists, art institutions, local arts interests, and community organizations sponsoring arts activities; to adopt rules for the regulation of its affairs and the conduct of its business; to acquire real or personal property and to lease or rent all or any part thereof; to lease or contract for the operation of cultural facilities; to fix and collect rates, rentals, fees, and charges for the use of its cultural facilities; to contract for the operation of concessions within cultural facilities; and to contract with governmental or private entities for or relating to cultural activities.

The Code of Ethics for Public Officers and Employees requires that each local officer annually file a statement of financial interests. Section 112.3145(2)(b), F. S. 1975. The term "local officer" is defined to include:

Any appointed member of a board, commission, authority, community college district board of trustees, or council of any political subdivision of the state, excluding any member of an advisory body. A governmental body with land-planning, zoning, or natural resources responsibilities shall not be considered an advisory body. [Section 112.3145(1)(a)2., F. S. 1975.]

The term "advisory body" is defined by the code as follows:

"Advisory body" means any board, commission, committee, council, or authority, however selected, whose total budget, appropriations, or authorized expenditures constitute less than 1 percent of the budget of each agency it serves or $100,000, whichever is less, and whose powers, jurisdiction, and authority are solely advisory and do not include the final determination or adjudication of any personal or property rights, duties, or obligations, other than those relating to its internal operations. [Section 112.312(1), F. S. (1976 Supp.).]

As the above-listed powers of the council are not solely advisory in nature, the council may not be deemed an advisory body for disclosure purposes. Accordingly, council members constitute local officers subject to the annual filing of financial disclosure.

Question 2 is answered in the affirmative so long as the decision to vote or to abstain from voting rests finally with the voting officer.

You have enclosed with your letter of inquiry two policy statements relative to conflicts of interest promulgated by the Western States Arts Foundation and the National Council on the Arts/National Endowment for the Arts. Generally, the policies call for board members with private involvement in particular arts organizations to recuse themselves from board considerations and/or action relating to those organizations with which they are affiliated. Pursuant to County Attorney's Opinion No. 77-6, the council recognizes that to require any member to abstain from voting in situations other than those authorized in s. 4.03(E) of the Home Rule Charter of Metropolitan Dade County would contradict the mandate of s. 112.3143, F. S. 1975. However, the council wishes to adopt as a matter of policy statements similar to those embraced by the above- named arts boards. You seek the advice of this commission as to whether such policies would be consistent with a conjunctive reading of ss. 286.012 and 112.3143 of the Florida Statutes as interpreted by this commission in previous advisory opinions.

Section 286.012 provides as follows:

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.

Section 112.3143, on the other hand, provides:

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.

Accordingly, under state law, no voting officer may be denied his right to vote and, further, no voting officer may abstain from voting unless there is, or appears to be, a conflict of interest under the above-quoted s. 112.3143, under the standards of conduct provisions contained in s. 112.313, or under s. 112.311, the "legislative intent and declaration of policy" section of the Code of Ethics. In relevant part, s. 112.311(1) provides as follows:

It is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law . . . .

Accordingly, a public officer may abstain from voting on any matter in which he cannot be independent and impartial or in which it appears that he cannot be independent and impartial.

Policy statements of the kind under consideration by the council therefore are entirely consistent with state law relative to voting matters, so long as the voting official is not precluded from exercising his right to vote regardless of the circumstances.