CEO 80-3 -- January 17, 1980

VOTING CONFLICT OF INTEREST

CITY COMMISSIONER VOTING ON MEASURE AFFECTING COMPETITOR OF HIS EMPLOYER OR AFFECTING COMPANY WITH WHICH HE IS CONTRACTING

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

Prepared by: Phil Claypool

SUMMARY:

A public officer is required to file a memorandum of voting conflict if he votes on a measure in which he has a personal, private, or professional interest and which measure inures to his special private gain or the special gain of any principal by whom he is retained. Section 112.3143, F. S. A city commissioner whose contracting company from time to time enters into contracts with phosphate companies for rock loading and earth moving is not, strictly speaking, an agent retained by a principal but, rather, is an independent contractor. See 2 Fla. Jur.2d Agency and Employment s. 2, p. 140. Nevertheless, based on the definition of "conflict of interest" contained in s. 112.312(6), F. S., it is recommended that the commissioner file a memorandum of voting conflict if he should elect to vote on a measure affecting the phosphate company.

A voting conflict is not deemed to be created when a city commissioner votes on a measure affecting a company which is a competitor of his employer. The fact that the employer might gain by virtue of some loss to its competitors is too speculative a conclusion to draw; moreover, whatever gain the employer might receive by virtue of a denial of its competitor's request would not constitute "special gain," as all of the competitors of the requesting company would share in that benefit.

QUESTIONS:

1. Would a voting conflict of interest be created were a city commissioner to vote on a measure affecting a company with which he presently is contracting?

2. Would a voting conflict of interest be created were a city commissioner to vote on a measure affecting a company which is a competitor of his employer?

3. Would a voting conflict of interest be created were a city commissioner to vote on a measure affecting a company which is a competitor of his employer?

In your letter of inquiry you advise that a certain company is the owner of 49 acres of phosphate land located within the City of Fort Meade. You further advise that the city has an ordinance preventing the mining and excavating of minerals, including phosphate. Recently, you advise, the company has requested permission to mine phosphate, which would necessitate amending the ordinance which prohibits such activity.

You also advise that . . . . owns a contracting company which, among other things, operates heavy equipment and is involved in earth- moving and rock-loading operations. From time to time, therefore, when phosphate companies in the area request bids for work, he submits sealed bids to them. Presently, you advise, he is fulfilling a contract for rock loading with the company which has requested permission to mine phosphate within the city. Therefore, the subject commissioner has inquired whether he has a voting conflict or whether he may abstain from voting when the measure regarding the company comes before the city commission.

The Code of Ethics for Public Officers and Employees 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.]

This provision requires a public officer to file a memorandum of voting conflict if he votes on a measure in which he has a personal, private, or professional interest and which measure inures to his private gain or the special gain of any principal by whom he is retained. From the facts you have presented, it does not appear that the subject commissioner would obtain any private gain from voting on the measure affecting the company with which he is contracting. No facts have been presented which would indicate, for example, that there is any contingency in his present contract with the company so that the subject commissioner would stand to gain if the company is allowed to mine within the city. Nor does it appear that he necessarily would gain in the future if the company is allowed to mine within the city since, for example, it does not appear that he has a continuing contract with the company which would enable him to work for the company within the city.

As a matter of strict legal interpretation, it does not appear that the company in this instance is a "principal" by whom the subject commissioner is retained. The relationship between the subject commissioner and the company seems to be that of an independent contractor as distinguished from the relationship between an agent and his principal. Without knowing the exact details of the contract between them, we are unable to conclude whether the subject commissioner is an agent of the company. For your information, however, we note that the legal test for distinguishing between these two relationships has been expressed as follows:

The recognized distinction between an agent and an independent contractor relationship is determined by whether the person is subject to, or whether he is free from, control with regard to the detail of the engagement. [2 Fla. Jur.2d Agency and Employment s. 2, p. 140.]

If the subject commissioner is not an agent of the company, then the measure before the city commission regarding the company could not inure to the special gain of a principal by whom he is retained.

Nevertheless, we are of the opinion that a conflict of interest would exist under the factual circumstances that you describe. The Code of Ethics defines the term "conflict of interest" to mean "a situation in which regard for a private interest tends to lead to a disregard of a public duty or interest." Section 112.312(6), F. S. We cannot say that such conflict would not inhere in the situation you describe. Personal benefits could derive from the subject commissioner's support of a company with which he is contracting in the form of increased work for the company, either inside or outside of the city. We do not intend to imply that such would be the case, but only to observe that the appearance of such a conflict of interest is present in his voting upon the company's request.

Accordingly, although the city commissioner may not be required to file a memorandum of voting conflict if he votes upon the company's request, we recommend that he do so in light of the spirit and intent of s. 112.3143, above. In addition, we are of the opinion that the subject commission member may abstain from voting on the company's request pursuant to s. 286.012, F. S., in light of the appearance that he may benefit in the future if the company's request is granted. See CEO 79-31. We previously have advised that s. 286.012 does not require a public official who abstains from voting to file a memorandum of voting conflict. See CEO 77-62.

Your second question, requested in behalf of . . . . , a member of the Fort Meade City Commission, is answered in the negative. In your letter of inquiry you advise that . . . . holds a high-ranking position with another major phosphate company in the area of the city. You also advise that he has no connection with the company which is requesting that the city allow it to mine phosphate. You question whether his position as an employee of a company which competes with the company making the request presents a voting conflict of interest.

Pursuant to s. 112.3143, F. S., quoted above in our response to your first question, the subject commissioner would be required to file a memorandum of voting conflict if he had a personal, private, or professional interest in the measure before the city commission and if that measure inures to his special private gain or the special gain of a principal by whom he is retained. From the facts you have presented, it does not appear that the company's request would result in any private gain to the subject commissioner. Nor are we of the opinion that it would inure to the special gain of his employer were the measure to be defeated. The fact that the employer of the subject commissioner might gain by virtue of some loss to its competitors is too speculative a conclusion to draw from the facts you have presented. In addition, whatever gain his employer might receive by virtue of the denial of its competitor's request would not constitute "special gain," as all of the competitors of the requesting company seemingly would share in that benefit. Nor do we see that the possibility that the commissioner's employer might gain from the measure pending before the city, by virtue of its being allowed to begin mining operations within the city, would create a voting conflict which would necessitate the filing of a memorandum of voting conflict by the subject commissioner. In the absence of any facts which would indicate a particular gain to the employer, such as the fact that it owns phosphate land within the city, any possible gain which might accrue to the employer by its mining within the city sometime in the future also is too speculative to create a voting conflict.

Accordingly, we find that no voting conflict of interest would be created were a city commissioner to vote on a measure affecting a company which is a competitor of his employer under the circumstances you have presented.

In your letter of inquiry you advise that . . . . , who recently has been elected to the Fort Meade City Commission, also is a company official with another phosphate company which is a competitor of the company requesting the city to allow phosphate mining. As your third question is the same question presented in your second question, our response is the same.