CEO 85-65 -- September 3, 1985

VOTING CONFLICT OF INTEREST

CITY CONTRACTORS EXAMINING BOARD MEMBER VOTING ON DISCIPLINARY ACTION OF SUBCONTRACTOR RELATING TO WORK DONE FOR TENANT OF BOARD MEMBER

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

SUMMARY:

A city contractors examining board member is not prohibited by Section 112.3143, Florida Statutes, from voting on a disciplinary action of a subcontractor relating to work done for the board member's tenant, where the member did not hire the subcontractor and was not involved in the work which was performed. CEO's 79-61 and 77-34 are referenced.

QUESTION:

Was a city contractors examining board member prohibited by Section 112.3143, Florida Statutes, from voting on a disciplinary action of a subcontractor relating to work done for the board member's tenant?

Your question is answered in the negative.

In your letter of inquiry you advise that Mr. Charles A. Fletcher has been appointed by the Cape Coral City Council to serve on the City's Contractors Examining Board, which reviews contractor licensing applications and is responsible for the discipline of contractors against whom complaints are made. You also advise that the Board member and his wife own a commercial building consisting of six rental units. They have a written three-year lease with a tenant who conducts a beauty shop business, with rent to be paid monthly. The lease provides that the tenant is to secure proper permits from the City for any remodeling done to the premises.

You also advise that the tenant hired several people to do remodeling work who did not obtain permits. An electrical subcontractor, who did not do any of the work either personally or through his employees, was charged with engaging in contracting work before obtaining the appropriate permit from the City. The Board member participated in the hearings of the charges against the subcontractor, who eventually was unanimously exonerated. You advise that the Board member had nothing to do with the tenant's remodeling arrangements, would not have lost any right to rental income regardless of the outcome of the proceedings, and would not have had any liability as landlord if the subcontractor had been found guilty, as only the subcontractor and the tenant could have had exposure on that account.

The Code of Ethics for Public Officers and Employees provides in relevant part:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, 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. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one- acre, one-vote basis is not prohibited from voting. [Section 112.3143(3), Florida Statutes (Supp. 1984).]

This provision prohibits a local public officer from voting on any measure which inures to his special private gain and from knowingly voting on any measure which inures to the special gain of a principal by whom he is retained. We previously have advised that a tenant is not a principal by whom a landlord is retained. See CEO 79-61 and CEO 77-34. Therefore, we find that the Board member would not have been prohibited from voting on a measure inuring to the tenant's benefit. Nor does it appear that the Board member could be considered to have been retained by the subcontractor either. Finally, under the circumstances presented we see no basis for concluding that the disciplinary proceeding against the subcontractor inured to the special private gain of the Board member.

Accordingly, we find that the subject Contractors Examining Board member was not prohibited from voting on the charges against the subcontractor.