CEO 77-173 -- November 10, 1977

CONFLICT OF INTEREST

INTERPRETATION OF s. 112.313(6), F. S., IN LIGHT OF s. 112.3143, F. S.

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.3143, F. S., provides, in part, that "[n]o public officer shall be prohibited from voting in his official capacity on any matter. . . ." Section 112.313(6), on the other hand, prohibits a public officer from corruptly using or attempting to use his official position or performing his official duties "to secure a special privilege, benefit, or exemption for himself or others. . . ." It is the view of the commission, consistent with various court decisions, that the provisions of s. 112.3143 provide an explicit exception to the prohibition contained in s. 112.313(6) so as not to construe a vote by a public officer on a matter which would inure to his personal gain to constitute a violation of s. 112.313(6). Also, pursuant to the definition of "corruptly" contained in s. 112.312(7), a violation of s. 112.313(6) requires that an act be "inconsistent with the proper performance of [one's] public duties," whereas voting and disclosing a conflict as required by s. 112.3143 is in accordance with the proper performance of one's duties. It is noted, however, that as an alternative to the subject officer's voting on the matter in which he has a conflict, he may abstain from voting under the provisions of s. 286.012, F. S. CEO 77-57 is referenced for further guidance in this regard.

QUESTION:

Does a prohibited conflict of interest exist under s. 112.313(6), F. S., where a public officer votes in his official capacity on a matter in which he has a personal, private, and professional interest and which inures to his special private gain and where he complies with the provisions of s. 112.3143, F. S.?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff you advise that Mr. David Putman is a member of the Titusville Shoreline Authority and owns property within the Titusville Shoreline District which he would like to develop. However, you also advise that, in order to develop the property, a site plan of the proposed development must be reviewed and approved by the authority. You question whether, when the matter comes before the authority, the subject authority member may vote on the issue and file the disclosure required by s. 112.3143, F. S., without violating s. 112.313(6), F. S.

Section 112.3143, F. S. 1975, 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.

Section 112.313(6), F. S. 1975, provides:

MISUSE OF PUBLIC POSITION. -- No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

In turn, "corruptly" is defined as follows:

"Corruptly" means done with a wrongful intent and for the purpose of obtaining or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(7), F. S. 1975.]

In our view, the provisions of s. 112.3143 provide an explicit exception to the prohibition contained in s. 112.313(6).

Where there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the provisions of the particular provision. . . . [73 Am. Jur.2d Statutes s. 257, (1974).]

This appears to be the rule in Florida. See State ex rel. Loftin v. McMillan, 45 So. 882 (Fla. 1908), Stewart v. DeLand -- Lake Helen Special Road & Bridge Dist., 71 So. 42 (Fla. 1916). [Thus, we read s. 112.313(6) as a general provision dealing with the performance of any official duty, while s. 112.3143 constitutes a specific provision relative to an officer's right to vote.] Where a question of the propriety of one's conduct under the Code of Ethics relates to one's vote as a public officer, one must look for guidance to s. 112.3143, which in its specificity controls over s. 112.313(6).

In addition, application of other rules of statutory construction results in the same interpretation of the interrelationship of these two provisions. Statutory provisions should be construed in such a manner as to harmonize them and at the same time to give effect to their plain meanings. In the Interest of J.N., 299 So.2d 50 (4 D.C.A. Fla., 1973). "A statute is to be construed so that it is meaningful in all of its parts." Wilensky v. Fields, 267 So.2d 1 (Fla. 1972). Thus, we adhere to the plain meaning of s. 112.3143 that no public officer shall be prohibited from voting on any matter, by refusing to interpret s. 112.313(6) to prohibit voting on some matters. We also give effect to the full definition of "corruptly," which requires that an act be "inconsistent with the proper performance of [one's] public duties," because voting and disclosing a conflict as required by s. 112.3143 is in accordance with the proper performance of one's public duties, rather than being inconsistent with those duties.

Accordingly, we find that a prohibited conflict of interest does not exist under s. 112.313(6), F. S., where a public officer votes in his official capacity on a matter in which he has a personal, private, and professional interest and which inures to his special private gain and where he complies with the provisions of s. 112.3143, F. S.

We wish to observe, however, that, as an alternative to the subject authority member's voting on the site plan, he may abstain from voting under the provisions of s. 286.012, F. S. 1975. We are enclosing a copy of a previous opinion, CEO 77-57, for your guidance in this regard.