CEO 83-29 -- June 16, 1983

VOTING CONFLICT OF INTEREST

SCHOOL BOARD MEMBER VOTING FOR CHANGES IN CONSTRUCTION CONTRACT BETWEEN BOARD AND SPOUSE'S COMPANY

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

SUMMARY:

A voting conflict of interest would be created were a school board member to vote for change orders affecting a construction contract awarded by competitive bid between the school board and a construction company owned by the board member's husband. Assuming that the school board member's spouse contributes to her support, a voting conflict would be created under Section 112.3143, Florida Statutes, as the measure being voted on would inure to her special private gain. CEO's 80-84 and 80-6 are referenced.

QUESTION:

Would a voting conflict of interest be created were a school board member to vote for change orders affecting a construction contract awarded by competitive bid between the school board and a construction company owned by the board member's husband?

Your question is answered in the affirmative.

In your letter of inquiry you advise that Ms. Jan Cummings is a member of the Broward County School Board. You also advise that her husband is an owner of a construction company which would like to do business with the School Board. As you have noted, Section 112.313(12)(b), Florida Statutes, permits that company to be chosen to perform work for the School Board under a closed, competitive bidding process. However, your question concerns proceedings which are likely to occur after the awarding of the contract, at which time change orders may be presented to the School Board to be considered during the construction process. In particular, you question whether a conflict of interest might arise in the School Board member's voting for change orders recommended by the Superintendent while her husband's company is the general contractor.

Although Section 112.313(3), Florida Statutes, prohibits a school board member from acting in an official capacity to purchase services from a business of which her spouse is an owner, Section 112.313(12)(b), Florida Statutes, provides an exemption where:

The business is awarded under a system of sealed, competitive bidding to the lowest or best bidder and:

1. The official or his spouse or child has in no way participated in the determination of the bid specifications or the determination of the lowest or best bidder;

2. The official or his spouse or child has in no way used or attempted to use his influence to persuade the agency or any personnel thereof to enter such a contract other than by the mere submission of the bid; and

3. The official, prior to or at the time of the submission of the bid, has filed a statement with the Department of State, if he is a state officer or employee, or with the Clerk of the Circuit Court of the county in which the agency has its principal office, if he is an officer or employee of a political subdivision, disclosing his, or his spouse's or child's, interest and the nature of the intended business.

Although this provision does not specifically reference change orders, it is apparent that the Legislature intended by its enactment that a School Board member's spouse may do business with the School Board by a sealed, competitive bidding process, so long as all of the terms of this exemption are met. In light of this policy, it is our opinion that the construction company here may do business with the School Board, despite the fact that change orders may be voted upon by the School Board.

Regarding voting conflicts of interest, 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.

We previously have advised 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, and further 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 80-84 and CEO 80-6. Therefore, we find that if the subject Board member's husband contributes to her support, a Memorandum of Voting Conflict (Commission on Ethics Form 4) should be filed if she votes on change orders of benefit to her husband's company. However, since the competitive bid exemption requires that the public officer abstain from determining bid specifications and the lowest or best bidder, and from attempting to persuade her agency to enter into the contract, we would suggest that abstention from voting on change orders in this situation would be more consistent with the policy set forth by the Legislature than voting on change orders. Abstention under these circumstances clearly would be permitted by Section 286.012, Florida Statutes.

Accordingly, we find that a voting conflict of interest necessitating the filing of a memorandum of voting conflict would arise if the subject School Board member were to vote on change orders affecting her husband's construction company, if her husband contributes to her support. As an alternative, the subject School Board member may abstain from voting on those matters.