CEO 80-84 -- October 30, 1980

VOTING CONFLICT OF INTEREST

COUNTY COMMISSIONER VOTING ON MATTERS RELATING TO SPOUSE'S ENGINEERING FIRM

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.3143, F. S., requires a public officer to file a memorandum of voting conflict if he votes upon a measure in which he has a personal, private, or professional interest which inures to his special private gain or the special gain of a principal by whom he is retained. It previously has been determined that if the matter being voted on would inure to the gain of the spouse of a public officer, the public officer has a personal or private interest in the matter. See CEO 80-6, in which the commission further found that, if the matter would inure to the spouse's special private gain and the spouse contributes to the support of the public officer, the matter is deemed to inure to the special private gain of the officer.

As to whether a voting conflict is created when a county commissioner votes on various matters in which her husband's engineering firm has been involved, general guidance may be derived from earlier opinions interpreting the voting conflicts statute. It is noted at the outset that the statute makes no distinction in terms of the size of gain. Furthermore, referencing CEO 77-159, question 3, the commission previously has found that there was no gain to a spouse in an officer's voting on the funding of the spouse's agency, when the terms of the spouse's employment were not dependent on the amount of funding. In CEO 77-57, it also should be noted, the word "special" was interpreted to relate to the size of the class of persons being benefited; thus, even a vote on a ministerial matter could result in gain requiring disclosure. Finally, there may be situations in which any gain to one's spouse is so indirect and remote as not to create a voting conflict of interest. See CEO 77-78 on this point.

QUESTION:

Does a voting conflict of interest exist when I, a county commissioner, vote on the approval of a plat prepared by my husband's engineering firm and when I vote on a zoning change request or similar development approval when the property owner has retained my husband's engineering firm?

We note at the outset that in the past, in an abundance of caution, you have filed a memorandum of voting conflict whenever you voted in such instances, thereby complying with the voting conflict law contained in s. 112.3143, F. S., as explained in greater detail later in this opinion. In your request for this commission's opinion, therefore, you are seeking our interpretation of the voting conflict law for purposes of future guidance. Our response accordingly addresses the voting conflict issue as it relates to spouses, largely based on precedent opinions.

In your letter of inquiry you advise that you are a member of the Polk County Commission and that your husband, a professional engineer, is one of two stockholders of an engineering and surveying firm in which you have no financial interest. You also advise that in instances when your husband or his firm has performed services related to an issue presented to the county commission, you have filed a memorandum of voting conflict form to disclose your relationship with the property owner's engineer. As examples of this, you cite commission approvals of plats prepared by your husband's firm and zoning or other commission approvals which may result in the owner's need for additional engineering services. However, as to plat approvals, you write that you do not believe a voting conflict is created because approval of plats is a ministerial function. In addition, as to other approvals by the commission, you do not believe that a voting conflict is presented because the substantial majority of the business of your husband's firm does not require commission approval; as a result, approvals by the commission do not result in any significant gain in your husband's financial position and therefore do not represent a special private gain to you.

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, F. S.]

This provision requires a public officer to file a memorandum of voting conflict if he votes upon a measure in which he has a personal, private, or professional interest which inures to his special private gain or the special gain of a principal by whom he is retained. We are of the opinion that if the matter being voted on would inure to the gain of the spouse of a public officer, the public officer has a personal or private interest in the matter. In addition, we are of the opinion that, if the matter would inure to the spouse's special private gain and the spouse contributes to the support of the public officer, the matter would inure to the special private gain of the officer. See CEO 80-6.

Therefore, the primary issue under the circumstances you have presented is whether the particular measure being voted on would inure to the special private gain of your husband, either directly or indirectly through his firm. We note that the voting conflicts statute makes no distinction in terms of the size of one's gain. Thus, whether the gain is extremely significant or relatively insignificant, the statute still would apply. However, if there is no gain to one's spouse, no memorandum of voting conflict need be filed.

See CEO 77-159, question 3, in which we found no gain to a spouse in an officer's voting on the funding of the spouse's agency, when the terms of the spouse's employment were not dependent on the amount of funding. In addition, if there is no special gain to the spouse, no voting conflict is created. See CEO 77-57, in which we interpreted the word "special" to relate to the size of the class of persons being benefited. Thus, in our view, the question of whether gain is "special" does not depend upon whether the matter being voted on is merely ministerial.

Finally, there may be situations in which any gain to one's spouse may be so indirect and remote as to not create a voting conflict of interest. For example, see CEO 77-78. In that opinion, a city councilman's spouse was employed as a clerk typist with an engineering firm which consulted with the city and prepared work for developments within the city. We found that any gain which might be received by the spouse was too indirect and remote to create a voting conflict of interest because of the nature of the spouse's position with the firm and because it appeared that the firm would benefit only indirectly by measures being considered by the council.

Your situation differs from that in CEO 77-78, since your husband is a shareholder and engineer with his firm and would stand to benefit from any measure which resulted in gain to the firm. However, we are unable to determine from the facts you have presented whether any of the measures you have voted on have inured to the benefit of your husband's firm. For example, clearly special gain would inure to the firm from the approval of a plat which it prepared, if payment or additional work for the firm is contingent on that approval. Similarly, if the firm is retained for a project, contingent upon rezoning or other action by the county commission, those matters would inure to the special gain of the firm.