CEO 79-26 -- April 18, 1979

VOTING CONFLICT OF INTEREST

CITY COMMISSIONER OFFICER IN CORPORATION CONTRACTING WITH COUNTY DEPARTMENT

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

Prepared by: Phil Claypool

SUMMARY:

No prohibited conflict of interest is created when a city commissioner is an officer in a corporation which furnishes and manages the distribution of oil products to a county aviation department. Although the Code of Ethics prohibits a public officer from being an officer in a company which sells goods or services to his public agency (s. 112.313[3], F. S. 1977), and from being employed by or having a contractual relationship with a business entity which is doing business with or is subject to the regulation of his public agency (s. 112.313[7]), in this instance sales are made, not to the city, but to the county, a different "agency" as that term is defined in s. 112.312(2), F. S. When matters affecting either the county or the county aviation department come before the city commission, the subject city commissioner would have a voting conflict of interest requiring disclosure pursuant to s. 112.3143, F. S., only if the matter under consideration would result in some special gain to him or to his corporation. Reading s. 112.3143 together with s. 286.012, F. S., relating to abstentions from voting, the city commissioner may abstain only if there is, or appears to be, a conflict of interest under s. 112.311, s. 112.313, or s. 112.3143, F. S.

QUESTIONS:

1. Does a prohibited conflict of interest exist when a city commissioner is an officer in a corporation which furnishes and manages the distribution of oil products to a county aviation department?

2. Does a voting conflict of interest exist if a city commissioner is an officer in a corporation which furnishes and manages the distribution of oil products to a county aviation department when matters affecting either the county or aviation department come before the city commission?

Question 1 is answered in the negative.

In your letter of inquiry you advise that ____ is a member of the Coral Gables City Commission and is an officer in a corporation that has a contract, approved by the Board of County Commissioners of Metropolitan Dade County, to furnish and manage the distribution of gasoline and oil products to the Dade County Aviation Department. You also advise that, as an officer of the corporation, ____ actively participates in the management of the corporation.

The Code of Ethics for Public Officers and Employees prohibits a public officer from being an officer in a company which is selling goods or services to his public agency. Section 112.313(3), F. S. 1977. Here, however, the corporation of which the subject commissioner is an officer contracts not with the city but with the county, a different "agency." See s. 112.312(2), F. S. 1977.

The Code of Ethics also prohibits a public officer from being employed by, or having a contractual relationship with, a business entity which is doing business with or which is subject to the regulation of his agency. Section 112.313(7)(a), F. S. 1977. Under the circumstances you have presented, it does not appear that the corporation of which the subject commissioner is an officer is either doing business with or is subject to the regulation of the City of Coral Gables. Therefore, this provision also does not apply.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit the subject city commissioner from being an officer in a corporation which has contracted to furnish and to manage the distribution of gasoline and oil products to the Dade County Aviation Department.

The Code of Ethics provides 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. [Section 112.3143, F. S. 1977.]

This provision requires the subject commission member to file a Memorandum of Voting Conflict (CE form 4) if he votes on a measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of a principal by whom he is retained. Thus, when a matter comes before the commission pertaining to either Metropolitan Dade County or the Dade County Aviation Department, the subject commissioner need file such a memorandum only if the matter under consideration by the city commission would result in some special gain to him or would result in gain to his corporation, for example, by increasing the amount of business done by the corporation. Otherwise, if the matter under consideration by the city would not result in any gain to him or to the corporation, this provision would not apply.

Section 286.012, F. S. 1977, expresses those circumstances under which a public officer may abstain from voting 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.

Thus, if a measure before the city commission pertains to Dade County or the county aviation department, the subject city commissioner may abstain only if there is, or appears to be, a conflict under s. 112.311, s. 112.313, or s. 112.3143, F. S. We have advised you of the applicability of s. 112.313 in response to question 1. However, without a more specific factual context, we are unable to advise you of the applicability of s. 112.311 or s. 112.3143.