CEO 78-3 -- January 19, 1978

CONFLICT OF INTEREST; VOTING CONFLICT

TOWN COUNCIL MEMBER VOTING FOR APPOINTMENT OF SPOUSE ON TOWN ZONING BOARD OF ADJUSTMENT

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.3143, F. S. 1975, provides that a voting conflict of interest requiring disclosure occurs where a public officer votes on a measure in which he has a personal, private, or professional interest which inures to his special private gain or the special gain of any principal by whom he is retained. No violation of this provision is perceived where a town council member failed to disclose her vote for the appointment of her spouse to the town zoning board of adjustment as such vote would not inure to her special private gain. The position assumed by her spouse entitles neither to any financial gain, and there appears to be no other type of gain on her part resulting from the appointment. No provision of the Code of Ethics relates to a prohibited conflict of interest being created by the appointment of a council member's spouse. Reference is made to CEO 77-3. The Ethics Commission has no jurisdiction to interpret other provisions of the Florida Statutes which might apply to the situation, including the antinepotism statute contained in s. 116.111.

QUESTIONS:

1. Was a voting conflict of interest created when a member of a town council voted to appoint her spouse to the town zoning board of adjustment?

2. Does a prohibited conflict of interest exist where the spouse of a member of a town council serves on the town zoning board of adjustment?

Question 1 is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advise that the Town Council of ____ appointed ____ to the town zoning board of adjustment as an alternate member by a vote of three to one. You also advise that ____ spouse is a member of the town council and that she voted in favor of the appointment. Members of the zoning board of adjustment receive no compensation for serving on the board. In addition, you advise that decisions of the board are not reviewed by the town council but instead must be contested in circuit court under the provisions of Ch. 163, F. S.

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. 1975.]

Under the situation you have described, we fail to see how the subject council member's vote would inure to her special private gain. The position assumed by her spouse entitles neither person to any financial gain, and there does not seem to be any other type of gain on her part which would result from the appointment.

Accordingly, we find that no voting conflict under the Code of Ethics was created when the subject town council member voted to appoint her spouse to the town zoning board of adjustment.

Question 2 is also answered in the negative.

We find no provision in the Code of Ethics which would prohibit this situation. See CEO 77-3, in which we expressed the same opinion with regard to a town mayor whose spouse served on that town's charter review committee. Please note that we have no jurisdiction to interpret other provisions of the Florida Statutes which might apply to the situation you have described, including the antinepotism provision contained in s. 116.111, F. S.