CEO 80-75 -- October 30, 1980

VOTING CONFLICT OF INTEREST

BOARD OF ADJUSTMENT MEMBER VOTING ON VARIANCE REQUEST FOR PROJECT HE DESIGNED AS ARCHITECT

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

Prepared by: Phil Claypool

SUMMARY:

No voting conflict of interest, as defined under s. 112.3143, F. S., was created when a municipal board of adjustment member voted on a variance request concerning a project in which he was involved as an architect, when he had no continuing relationship with the client at the time of the vote and when the necessity for the variance was not created by the architect's design. Although the board member undoubtedly had a "professional interest" when a project designed by him came before the board, it does not appear that the granting or denial of the requested variance inured either to his gain (because he had no financial interest in the project and was entitled to payment for his services regardless of the variance) or to the gain of a "principal by whom he is retained," inasmuch as he no longer was retained by the principal at the time of the vote. He therefore was not required by law to disclose his relationship with the issue, although it certainly was not inappropriate for him to do so. Disclosure beyond the strict requirements of statute are encouraged as enhancing the spirit of the law.

QUESTION:

Does a voting conflict of interest exist when a municipal board of adjustment member votes on a variance request concerning a project in which he was involved as an architect, when he has no continuing relationship with the client at the time of the vote and when the necessity of the variance was not created by the architect's design?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advise that ____ recently voted as a member of the Miami Beach Board of Adjustment on a variance request concerning a project which he was employed to design as an architect. You further advised that he had no financial interest in the project and that his relationship with the client was ended when the design was completed, before the variance was sought. At that time, he was entitled to be paid for his architectural services regardless of whether a variance was granted or not. In addition, you advised that the variance request was not a result of the architect's design of the project, but rather was a result of a change in use of the structure. Subsequently, when the variance request came before the board of adjustment, he did not represent the former client before the board, you advised. However, he made public these circumstances, voted on the variance request, and later filed a CE Form 4, Memorandum of Voting Conflict, concerning the situation.

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.]

As expressly provided in the first sentence of this provision, no public officer is prohibited from voting on any matter. Under circumstances presenting a conflict of interest, a public officer may exercise his discretion to abstain from voting under s. 286.012, F. S. See CEO's 78-96 and 79-14. However, if the officer 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, he must file a memorandum of voting conflict, CE form 4, with the person who keeps the minutes of the meeting.

Although the subject board member undoubtedly had a "professional interest" when a project designed by him came before the board, it does not appear that the granting or denial of the requested variance inured to his gain, because he had no financial interest in the project and because he was entitled to payment for his services regardless of whether a variance was granted. Further, it does not appear that the variance was required because of the architect's design. The voting conflict section also requires the filing of a memorandum if an officer's vote inures to the "special gain of any principal by whom he is retained." (Emphasis supplied.) We read this emphasized language to require disclosure only if the officer is retained by a particular principal at the time the vote occurs, because of the use of the present tense by the Legislature. Therefore, since the subject board member had no ongoing relationship with his former client at the time of his vote on the requested variance, we do not find that a memorandum of voting conflict was required to be filed. We hasten to add that this does not mean that it was inappropriate for him to disclose his relationship publicly and to file a memorandum of voting conflict. Disclosure beyond the strict limitations of statutory requirements should be encouraged as enhancing the spirit of the law.

Accordingly, we find that no voting conflict of interest was created when a municipal board of adjustment member voted on a variance request concerning a project in which he was involved as an architect, when he had no continuing relationship with the client at the time of the vote and when the necessity of the variance was not created by the architect's design.