CEO 82-44 -- July 1, 1982

VOTING CONFLICT OF INTEREST

TOWN COUNCIL MEMBER VOTING TO EXCUSE ABSENCE FROM COUNCIL MEETINGS

To: Mr. Paul G. Komarek, Town Attorney, Town of Mexico Beach

SUMMARY:

A voting conflict of interest under Section 112.3143, Florida Statutes, would be created were a member of a town council to vote to excuse his absence from council meetings, where the town charter provides that absence from three consecutive regular meetings operates to vacate the member's seat unless excused by resolution of the council. Under these circumstances, a council member has a personal or private interest in such a vote, and such a measure would inure to his special private gain. Therefore, if the council member votes, a Memorandum of Voting Conflict should be filed pursuant to Section 112.3143. Alternatively, the council member may abstain from voting under Section 286.012, Florida Statutes.

QUESTION:

Would a voting conflict of interest be created were a member of a town council to vote to excuse his absence from council meetings?

Your question is answered in the affirmative.

In your letter of inquiry you advise that the Charter of the Town of Mexico Beach provides in part as follows:

[A]bsence from three consecutive regular meetings of the Town Council shall operate to vacate the seat of a member, unless such absence is excused by the Town Council by resolution duly entered upon the journal.

Under this provision, the Town Council questions whether a Council member can vote on the resolution excusing the absence of the voting Council person.

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, Florida Statutes (1981)].

This provision specifies that no public officer is prohibited from voting on any matter. However, under the circumstances described in the provision, the voting official is required to file a Memorandum of Voting Conflict following a vote which involves a conflict of interest. Copies of the form which we have prescribed for use in making this disclosure, CE Form 4, Memorandum of Voting Conflict, are available at the office of the Clerk of the Circuit Court.

Under the circumstances you have described, we are of the view that a Council member has a personal or private interest in a vote to excuse his absence. In addition, we are of the opinion that such a measure would inure to the special private gain of the Council member, because the Charter provision automatically would vacate the Council member's seat unless the member's absence were excused.

Accordingly, we find that a voting conflict of interest would be created were a member of the Town Council to vote to excuse his absence from Council meetings. In such a case, the Council member should prepare and file a Memorandum of Voting Conflict as directed by Section 112.3143, Florida Statutes. As an alternative, the Council member may abstain from voting as permitted by Section 286.012, Florida Statutes.