CEO 76-151 -- September 13, 1976

VOTING CONFLICT OF INTEREST

PLANNING COMMISSIONER VOTING ON ZONING CHANGE ON ESTATE PROPERTY REPRESENTED BY HIS BROKER

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

Prepared by: Bonnie Johnson

SUMMARY:

Florida Statute s. 112.3143 (1975) provides that, although no public officer shall be prohibited from voting in his official capacity on any matter, where he elects to vote on an issue in which he has a personal, private, or professional interest which inures to his gain or to that of a client, he must file a memorandum of voting conflict with the person recording the minutes of the meeting at which such vote occurred. A member of a municipal planning commission who privately is an associate of a realty firm is deemed to have a voting conflict of interest where the commission is called upon to review a zoning change request relating to estate property represented by the chairman of the board of directors of said realty firm. As professional benefits could derive from his supporting the position represented by the board chairman, and vice-versa, the planning commissioner is required to file a Memorandum of Voting Conflict, CE Form 4, should he choose to vote on the request for rezoning.

QUESTION:

Would a voting conflict of interest be created were I, a member of my city's planning commission, to vote on a zoning change request involving estate property which is represented by the chairman of the board of directors of a realty corporation of which I am an associate?

Your question is answered in the affirmative.

You inform us in your letter of inquiry that you are a member of the Planning Commission of the City of ____ and privately are a realtor associate with ____ Realty Corporation, in which capacity you serve as an independent contractor, working solely on a commission basis. The planning commission of which you are a member has been asked to review a zoning change request relating to estate property, which estate is represented by the Chairman of the Board of Directors of ____ Realty. Based on the above factual situation, you wish to know whether your discussion of and possible vote on the requested zoning change would constitute a conflict of interest.

In relation to voting conflicts, the Code of Ethics for Public Officers and Employees provides 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. [Fla. Stat. s. 112.3143(1975).]

We are of the opinion that a conflict of interest, as contemplated by the above-quoted statute, would exist under the factual circumstances you describe. Although formally you are neither employed nor retained by the subject realty company, your serving as a company associate, and your receiving from the company commissions on sales, places you in a unique position. Just as your sales serve the company's interests, so do the company's successes indirectly benefit you as an associate.

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." Fla. Stat. s. 112.312(6)(1975). We cannot say that such conflict would not inhere in the situation you describe. Professional benefits could derive from your supporting the position represented by the board chairman, and vice-versa, thus placing you in the position of having to choose between private interest and public duty. Accordingly, should you choose to vote on the subject request for rezoning, the Code of Ethics requires a disclosure of the conflict by the filing of CE Form 4, Memorandum of Voting Conflict, a copy of which is enclosed.