CEO 83-43 -- June 16, 1983

VOTING CONFLICT OF INTEREST

STATE SENATOR VOTING ON MEASURE AFFECTING RACE TRACK REPRESENTED BY ATTORNEY FOR CORPORATION OF WHICH SENATOR IS A DIRECTOR

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

SUMMARY:

No voting conflict of interest was created under Section 112.3143, Florida Statutes, where a State Senator voted against a bill affecting a race track, where the lobbyist for the race track is a general counsel to a corporation of which the Senator is a director. In this case, the bill would not have inured to the special private gain of the Senator or to a principal by whom the Senator was retained, as the Senator was not retained by any race track. Similarly, no voting conflict of interest would be created were the Senator to vote on a legislative issue presented by an association of retail grocers, where the president of a corporation which the Senator serves as director also serves as president of the association.

QUESTION 1:

Was a voting conflict of interest created where you, a State Senator, voted against a bill affecting a race track, where the lobbyist for the race track is a general counsel to a corporation of which you are a director?

Your question is answered in the negative.

In your letter of inquiry you advise that you are a State Senator and that since 1982 you have served as an outside director of a corporation. In addition, you serve on the auditing committee, which is responsible for reviewing all of the accounting and record-keeping procedures of the corporation with its external auditors, and on the executive committee of the corporation. You are compensated for your services and receive reimbursement for expenses. You advise that neither you nor any member of your family owns any stock in the corporation, and you receive no legal fees for any other perquisite from the company.

In addition, you advise that one of the two general counsels to the corporation also is retained as a lobbyist by a Florida race track. Recently, as a member of the Senate Commerce Committee, you voted against a bill which would have reallocated racing dates among three racing establishments in Southeast Florida. One of the three establishments was the race track which has retained the corporation's general counsel; that track was opposed to the bill. You advise that you have received campaign contributions from lobbyists representing each of the three racing establishments, but that you do not serve on the board of directors of any of these tracks and have no professional association with any of them.

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, Florida Statutes (1981).]

In addition, Section 286.012, Florida Statutes (1981), states:

No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act, and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is, or appears to be, a possible conflict of interest under the provisions of s. 112.311, s. 112.313, or s. 112.3143. In such cases said member shall comply with the disclosure requirements of s. 112.3143.

In previous opinions we have advised that a public official faced with a voting conflict of interest under Section 112.3143 either may abstain from voting or may vote and file the required Memorandum of Voting Conflict (Commission on Ethics Form 4). See, for example, CEO 81-79. If the official chooses to abstain from voting, no memorandum is required to be filed. See CEO's 77-57, 76-182, and 76-62. In any event, the first sentence of Section 112.3143 makes it clear that an official is not prohibited from voting on any matter; the choice of whether to vote or to abstain lies within the discretion of the voting official.

We are of the opinion that no voting conflict of interest was created under Section 112.3143 by your vote regarding the racing dates bill. Under that section, a memorandum of voting conflict must be filed only where the measure voted upon would inure to the official's special private gain or the special gain of any principal by whom he or she is retained. Under the circumstances you have presented, it does not appear that the allocation of racing dates would result in any private gain to you whatsoever. Nor would the allocation of racing dates inure to the special gain of a principal by whom you are retained, as you have not been retained by any racing establishment. As a director of the corporation, you have certain fiduciary responsibilities to that entity, but those responsibilities do not extend to another, separate business which has retained an attorney who serves as general counsel to the corporation.

Accordingly, we find that no voting conflict of interest was created by your vote on a bill which would have reallocated racing dates under the circumstances you have presented. For the same reasons, you would not be precluded from voting on a pari-mutuel issue involving the race track in the future.

QUESTION 2:

Would a voting conflict of interest be created were you to vote on a legislative issue presented by an association of retail grocers, where the president of a corporation which you serve as director also serves as president of the association?

This question also is answered in the negative.

In your letter of inquiry you advise that the president of the corporation which you serve as director will be elected president of an association of retail grocers. Each year, you advise, the association presents a platform of issues to the Legislature. You question whether you are prohibited from voting on any issue presented by the association, and whether you would be required to file a memorandum of voting conflict if you were to vote on any of those issues.

In our view, the issues presented by this question are substantially the same as presented by your first question. Accordingly, it is our opinion that you are not prohibited from voting on any issue presented by the association and that you would not be required to file a memorandum of voting conflict after voting on an issue presented by the association, as you are not retained by the association and as it does not appear that any of these issues would inure to your special private gain.