CEO 83-14 -- March 10, 1983

CONFLICT OF INTEREST

CITY COUNCIL MEMBER VOTING ON MATTER COMING BEFORE COUNCIL FROM CITY PLANNING COMMISSION ON WHICH SPOUSE SERVES; CITY ORDINANCE CONCERNING VOTING CONFLICTS

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

SUMMARY:

No voting conflict of interest would be created under Section 112.3143, Florida Statutes, were a city council member to vote on matters coming before the council from the city planning commission, of which the council member's spouse is a member. The involvement of the council member's spouse at the planning commission level does not indicate that the measure would inure to the council member's special private gain or the special gain of a principal retaining the council member. CEO 78-72 is referenced. A city ordinance which requires an oral disclosure prior to voting in the event of a voting conflict in addition to the written disclosure requirement of Section 112.3143, Florida Statutes, would not be inconsistent with that statute. Compare CEO's 77-56 and 79-40.

QUESTION 1:

Would a voting conflict of interest be created under Section 112.3143, Florida Statutes, were a city council member to vote on matters coming before the council from the city planning commission, of which her spouse is a member?

This question is answered in the negative.

In your letter of inquiry you advise that recently .... was elected to the City Council of the City of Edgewater. You also advise that her husband has been a member and acting Chairman of the City Planning Commission for approximately two years. The Planning Commission has several functions: it reviews and approves all site plans; makes recommendations regarding amendments to the City's zoning ordinance, land development regulations, and comprehensive plan; reviews requests for special exceptions; reviews requests for municipal annexation or contraction; makes recommendations regarding applications of vacation of publicly dedicated land; and is primarily responsible for determining that land development orders and land development regulations are consistent with the City's comprehensive plan.

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).]

This provision makes it clear that no public officer is prohibited from voting on any matter. However, if an official votes on a measure and has a conflict of interest as defined in the statute with respect to that measure, he or she is required to file a memorandum of voting conflict as prescribed in the statute. Under the circumstances you have described, we do not find that the subject Council member is required to file a memorandum of voting conflict after voting on a measure which has come before the Council from the Planning Commission. The fact that the Council member's spouse was involved in the determination or recommendation of the Planning Commission does not indicate that the measure upon which the City Council member would vote would inure to her special private gain or the special gain of a principal by whom she is retained. Similarly, in CEO 78-72 we advised that no voting conflict of interest would be created if a county commissioner voted on a recommendation of a committee of which he was a member, unless he had a personal interest so as to benefit himself or a principal by whom he was retained as a result of his vote.

Accordingly, we find that no voting conflict of interest would be created were the subject Council member to vote on a matter coming before the Council from the Planning Commission of which her spouse is a member.

QUESTION 2:

Would a city ordinance which requires a disclosure in the event of a voting conflict which is in addition to the disclosure requirement of Section 112.3143, Florida Statutes, be inconsistent with that statute?

This question is answered in the negative.

In your letter of inquiry you advise that the City Council wishes to adopt an ordinance which places a more stringent requirement on voting conflicts than the requirements of Section 112.3143. At the present time, two ordinances have been proposed. The first ordinance would require that in addition to the requirements of Section 112.3143, Florida Statutes, any member of the City Council or any appointed official voting on a matter in which he has a personal, private, or professional interest and which inures to his specific private gain, or the specific gain of any principal by whom he is retained, shall announce the nature of his interest immediately prior to voting on the measure unless he establishes after a reasonable inquiry that he neither knew nor should have known that the voting conflict existed or was likely to exist, in order to announce his conflict prior to the vote. The second ordinance would provide that in addition to the requirement of Section 112.3143, Florida Statutes, any member of the City Council or appointed official voting on a matter in which he has a personal, private, or professional interest and which inures to his specific private gain, or the specific gain of any principal by whom he is retained, shall announce the nature of his interest immediately prior to voting on the measure.

In the event a local ordinance is inconsistent with general law, the general law will control. The tests for determining when such an inconsistency occurs have been set forth by the courts of this state. See, e.g., Rinzler v. Carson, 262 So.2d 661 (Fla. 1972), State ex rel. Dade County v. Brautigan, 224 So.2d 688 (Fla. 1969), and Townley v. Marion County, 343 So.2d 1312 (Fla. 1st DCA 1977), cert. denied, 354 So.2d 982. In previous opinions, we have advised that a policy requiring a board member to abstain from voting in the event of a conflict of interest would be inconsistent with Section 112.3143, Florida Statutes, which provides that no public officer shall be prohibited from voting in his official capacity on any matter. See CEO 79-40 and CEO 77-56. In contrast, we are of the opinion that neither of the two proposed City ordinances is inconsistent with Section 112.3143. Both ordinances reference the requirements of Section 112.3143 and merely require an additional oral disclosure of a voting conflict of interest prior to the vote. In particular, we note that the Legislature has provided in Section 112.326, Florida Statutes, as follows:

Additional requirements by political subdivisions not prohibited. -- Nothing in this act shall prohibit the governing body of any political subdivision from imposing upon its own local officers additional or more stringent disclosure requirements than those specified in this part.

Accordingly, we find that neither of the two proposed City ordinances would be inconsistent with the voting conflict requirements of Section 112.3143, Florida Statutes.