CEO 82-91 -- December 10, 1982

VOTING CONFLICT OF INTEREST

CITY MAYOR VOTING TO EXCUSE ABSENCE FROM CITY COUNCIL MEETINGS

To: Mr. Porter J. Goss, Mayor, City of Sanibel

SUMMARY:

No voting conflict of interest was created under Section 112.3143, Florida Statutes, where a city mayor voted at a city council meeting to excuse his possible absence from three consecutive regular council meetings. Although the vote inured to the gain of the mayor as a public official, the measure did not inure to his private gain. CEO 82-44 is revoked.

QUESTION:

Was a voting conflict of interest created where you, a city mayor serving without compensation, voted at a city council meeting to excuse your possible absence from three consecutive regular council meetings?

Your question is answered in the negative.

In your letter of inquiry you advise that you are Mayor of the City of Sanibel and that at a City Council meeting you voted in favor of a motion to authorize you to be absent from three consecutive regular Council meetings, should it be necessary for you to be absent. You also advise that you serve without compensation. Finally, you advise that you did not miss three consecutive Council meetings, but you question whether you were required to file a Memorandum of Voting Conflict following your vote, pursuant to Section 112.3143, Florida Statutes.

In a previous opinion, CEO 82-44, we advised that a voting conflict of interest was created where a town council member voted to excuse his absence at council meetings, where unexcused absences from three consecutive regular meetings of the council operated to vacate the member's seat. Similarly, you advise that the City Charter provides that a Council member shall forfeit office if he is absent from three consecutive regular Council meetings without being excused by the Council.

Section 112.3143, Florida Statutes, 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, Florida Statutes (1981).]

In CEO 82-44 we advised that a council member would have a personal or private interest in a vote to excuse his absence, and that such a measure would inure to his special private gain by retaining his seat on the council. However, upon further reflection we are persuaded that excusing your absence from the Council would not inure to your "special private gain."

The voting conflict statute applies to conflicts between a public official's public duties and his private interests. Here, the vote pertained to your public position and affected you in your capacity as a public official, rather than in your capacity as a private citizen. For this reason, we find that while excusing your possible absences from Council meetings might have inured to your public gain, it did not inure to your private gain.

Accordingly, we find that no voting conflict of interest was created where you voted to excuse your absence from City Council meetings. Based on the rationale of this opinion, we hereby revoke CEO 82-44.