CEO 79-40 -- July 19, 1979

VOTING CONFLICT OF INTEREST

CITY POLICY REQUIRING MEMBERS OF CITY BOARDS TO ABSTAIN FROM VOTING IN CONFLICT OF INTEREST SITUATIONS

To: Seymour H. Rowland, Jr., City Attorney, Ocala

Prepared by: Phil Claypool

SUMMARY:

A policy adopted by a city council which, in part, requires municipal board members to abstain from voting on matters relating to their private clients conflicts with s. 112.3143, F. S. 1977, which clearly states that no public officer shall be prohibited from voting on any matter. When a conflict exists between a general law and a municipal policy, whether that policy is expressed by ordinance, resolution, or otherwise, the general law controls. The rationale for this conclusion appears in previous advisory opinions CEO's 76-73, 77-56, and 78-79.

QUESTION:

Does a city policy requiring members of boards to abstain from voting in conflict of interest situations conflict with s. 112.3143, F. S., of the Code of Ethics for Public Officers and Employees?

Your question is answered in the affirmative.

In your letter of inquiry you advise that the Ocala City Council recently adopted a policy directed to its various boards and commissions, which policy states that!mbqa!xany member of your board or commission shall be prohibited from representing a client or advocating that client's position before your board; that any member of your board shall be prohibited from advocating the position of an individual appearing before your board or [sic] that member has previously had involvement with the individual making the presentation, such prohibition to include entering into the discussion of the granting of the relief requested by the individual other than the answering of technical questions; and a requirement that any member of your board be required to abstain from any vote where he has represented a client as to any action coming before your board.

You further advise that this policy was sent to the members of the city zoning board of adjustment, the planning and zoning commission, and to members of other boards and commissions who would be considered public officers under s. 112.3143, F. S., or members of governmental agencies, boards, or commissions under s. 286.012.

At the outset, we note that we previously have advised that the Code of Ethics for Public Officers and Employees prohibits a public official from representing a client before a board of which he is a member. See CEO's 77-126, 78-86, 79-2, 79-7, and 79-19.

As to voting conflicts of interest, s. 112.3143, F. S., provides as follows:

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. 1977; emphasis supplied.]

In our opinion, the city policy you have referenced conflicts with this provision of the Code of Ethics to the extent that it requires abstention by a board member in certain situations, inasmuch as s. 112.3143 clearly states that no public officer shall be prohibited from voting on any matter.

It appears that when there exists a conflict between a general law and a municipal policy, whether that policy is expressed by ordinance, resolution, or otherwise, the general law controls. The rationale for this conclusion appears in our previous opinions CEO's 78-79, 77-56, and 76-73.