CEO 77-34 -- March 9, 1977

VOTING CONFLICT OF INTEREST

COUNTY COMMISSIONER VOTING ON MATTER AFFECTING A PRIVATE TENANT

To: Randall N. Thornton, Sumter County Attorney, Bushnell

Prepared by: Bonnie Johnson

SUMMARY:

The Code of Ethics provides that, although a public officer shall not be prohibited from voting in his official capacity on any matter, where he votes on a measure in which he has a personal interest which inures either to his gain or to that of a principal by whom he is retained, he shall file a voting conflict memorandum within 15 days. No voting conflict of interest is deemed to exist, however, where an officer votes on an issue affecting one who rents commercial property from the voting officer. Although the official may be said to have a personal or professional interest in the matter, as it affects his tenant's interests, he is not "retained" by the tenant. Accordingly, there is no obligation to disclose via the filing of a Memorandum of Voting Conflict, CE Form 4.

QUESTION:

Is a voting conflict of interest requiring disclosure constituted in a county commissioner's voting on a matter which affects the interest of an individual who rents commercial property from the commissioner?

Your question is answered in the negative.

You advise in your letter of inquiry that the subject county commissioner rents a piece of commercial property, which property constitutes not more than 5 percent of his assets and which rental thereof amounts to not more than 5 percent of his income. Recently a matter came before the board of county commissioners relating to the roads in a subdivision in which the renter of the commercial property resides. The landlord/commissioner voted in the matter, which vote coincidentally inured to the benefit of his tenant, but did not file a Memorandum of Voting Conflict, CE Form 4. The overall vote was 3 to 2 against the tenant's interest. As county attorney, you have ruled that no voting conflict requiring disclosure was constituted, but a binding determination nevertheless is being sought of this commission.

The Code of Ethics for Public Officers and Employees provides in relevant part 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. [Section 112.3143, F. S. 1975.]

Accordingly, in order for a voting conflict to be created, the matter up for vote must relate to the personal, private, or professional interests of a voting official and must inure to the private gain of either the official himself or a principal who retains him. Although the subject county commissioner might be said to have a personal, private, or professional interest in the vote affecting his tenant's interests, he is not "retained" by the tenant. Therefore, no voting conflict was created and the commissioner accordingly was not obligated to disclose via the filing of a Memorandum of Voting Conflict, CE Form 4.