CEO 80-61 -- September 19, 1980

CONFLICT OF INTEREST; VOTING CONFLICT

STATE SENATOR LEASING PROPERTY TO DEPARTMENT OF PROFESSIONAL REGULATION

To: Elliott Messer, Attorney, Tallahassee

Prepared by: Phil Claypool

SUMMARY:

Reference is made to CEO 77-13. Based on the legislative exemption contained in s. 112.313(7)(b), F. S., no prohibited conflict of interest would be created were a partnership of which a state senator is a member to lease property to the Department of Professional Regulation. Relative to a potential voting conflict of interest based on such circumstances, reference is made to CEO 79-14, concerning the types of conflicts of interest which justify abstention from voting. Another opinion may be requested based upon any specific situation which might arise.

QUESTIONS:

1. Would a prohibited conflict of interest be created were a partnership of which a state senator is a member to lease property to the Department of Professional Regulation?

2. Would a voting conflict of interest be created were I to vote as a state senator upon measures which would impact on my interest in a partnership which is leasing property to the Department of Professional Regulation?

Question 1 is answered in the negative.

In your letter of inquiry you write that you are a candidate for the Florida Senate. You also advise that you hold a 16-percent interest in a partnership which owns a building that has been leased to the Department of Professional Regulation. You question whether your interest in the partnership would create a prohibited conflict of interest should you be elected to the Senate.

In a previous advisory opinion, CEO 77-13, we advised that the Code of Ethics for Public Officers and Employees does not prohibit a member of the House of Representatives from leasing business property to the Department of Health and Rehabilitative Services. Based upon the rationale of that opinion, we find that no prohibited conflict of interest would be created should you serve in the Senate while retaining your interest in a partnership leasing property to the Department of Professional Regulation.

Regarding question 2, your letter of inquiry provides no specific details of the measures on which you may be called to vote as a senator; we are able to provide you only with the following general information regarding voting conflicts of interest. The Code of Ethics for Public Officers and Employees provides:

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.]

With respect to this provision, we have advised that whether a particular measure inures to the special private gain of an officer or his principal will turn in part on the size of the class of persons which stands to benefit from the measure. When the class of persons is large, special gain will result only if there are circumstances unique to the officer or principal under which he stands to gain more than the other members of the class. On the other hand, when the class of persons benefited is extremely small, the possibility of special gain is much more likely. See CEO 77-129.

Regarding abstention from voting, s. 286.012, F. S., provides:

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.

We call your attention to a previous opinion, CEO 79-14, for your information as to our interpretation of the types of conflict of interest which justify abstention.

Please note also that the Senate Rules contain a provision regarding disclosure and disqualification, interpretations of which would have to be made by that body. In the event that a specific situation arises in the future about which you would like an interpretation of the voting provisions of the Code of Ethics, please feel free to request another opinion.