CEO 83-49 -- July 28, 1983

VOTING CONFLICT OF INTEREST

CITY COUNCIL MEMBER VOTING ON MATTERS AFFECTING HOSPITAL EMPLOYING COUNCIL MEMBER'S SPOUSE

To: Ms. Jennifer Hurst, City Attorney, City of North Miami

SUMMARY:

No voting conflict of interest would be created under Section 112.3143, Florida Statutes, were a city council member to vote on matters involving a hospital, where the council member's spouse is vice president of the staff at the hospital. Under Section 286.012, Florida Statutes, the council member may abstain where there is the appearance that she may not be totally independent and impartial concerning matters in which the hospital is involved. CEO's 78-34, 80-6, 80-29, and 80-84 are referenced.

QUESTION:

Would a voting conflict of interest be created were a city council member to vote on matters involving a hospital, where the council member's spouse is vice president of the staff at the hospital and on the executive committee of the hospital?

Your question is answered in the negative.

In your letter of inquiry you advise that Mrs. Shelly Gassner is a member of the North Miami City Council. You also advise that matters involving a local hospital frequently come before the Council for consideration, including primarily questions on the subject of zoning but conceivably questions on any number of matters. You write that the Council member's husband is vice president of the staff of the hospital and serves on the executive committee of the hospital, its primary decision making body. You further write that he is on the staff of the hospital and has the privilege to admit patients and to perform surgery there. The hospital, you advise, sends the physician on certain committee assignments for educational purposes and pays his expenses and those of his wife, the Council member, to attend such conferences.

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).]

We are of the opinion that this provision would not require the subject Council member to file a memorandum of voting conflict if she were to vote on matters involving the hospital.

Under the circumstances you have presented, it does not appear that any matter before the Council affecting the hospital would inure to the Council member's special private gain. Nor does it appear that such matters would inure to the special gain of any principal by whom she is retained, as she is not retained by the hospital.

In previous opinions we 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, if the matter would inure to the spouse's special private gain and the spouse contributes to the support of a public officer, the matter would inure to the special private gain of the officer. See CEO's 80-29, 80-84, and 80-6. However, it does not appear that matters involving the hospital would inure to the physician's special private gain, as opposed to the gain of the hospital.

Accordingly, we find that the subject Council member is not required to file a memorandum of voting conflict under Section 112.3143, Florida Statutes, should she vote on matters involving the hospital. To the extent that these circumstances give the appearance that the subject Council member may not be totally independent and impartial concerning matters in which the hospital is involved, we are of the opinion that she may abstain from voting pursuant to Section 286.012, Florida Statutes, when a matter involving the hospital comes before the City Council. See CEO 78-34.