CEO 84-31 -- April 26, 1984

CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST

STATE REPRESENTATIVE ABSTAINING FROM VOTING BUT ANSWERING QUESTIONS REGARDING LEGISLATION AFFECTING CLIENTS

To: The Honorable Art Simon, State Representative, District 116

SUMMARY:

A State Representative is permitted by Section 286.012, Florida Statutes, to abstain from voting on legislation setting uniform standards for county and municipal ordinances governing the use of railroad horns and whistles, where he is counsel for two railroads in litigation with various local governments challenging existing ordinances on that subject and where the parties have agreed to settle the litigation based on the enactment of such legislation. If choosing to vote on the legislation, the Representative would be required to file a memorandum of voting conflict under Section 112.3143, Florida Statutes, as he would have a professional interest in the matter and as the matter would inure to the gain of the railroad companies by which he is retained. No provision in the Code of Ethics would prohibit the Representative from answering questions posed by legislators and other persons and from answering questions for legislative committees regarding the legislation.

QUESTION 1:

May you, a State Representative, abstain from voting on legislation setting uniform standards for county and municipal ordinances governing the use of railroad horns and whistles, where you are counsel for two railroads in litigation with various local governments challenging existing ordinances on that subject and where the parties have agreed to settle the litigation based on the enactment of such legislation?

This question is answered in the affirmative.

In your letter of inquiry you advise that you are a member of the Florida House of Representatives and that you are counsel of record for two railroads involved in extensive litigation against a county and various municipalities challenging the constitutionality and legality of local ordinances governing railroad "noise pollution." You also advise that all parties to the litigation have agreed to a settlement based on the enactment of statewide legislation to provide uniform standards for counties and municipalities which promulgate "whistle stop" ordinances.

Legislation which would provide authority for optional, local ordinances limiting the use of railroad horns and whistles subject to specified conditions has been introduced in the House and Senate by other members of the Legislature. You are not a co-sponsor of the House bill, you advise, and you have not indicated any willingness to become a co-sponsor. Neither you nor your law firm will receive any compensation for the passage of the proposed legislation. You advise that it is your intention to declare a conflict of interest and to abstain from voting on the legislation if abstention is proper.

Section 286.012, Florida Statutes (1983), provides:

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 addition, Section 112.3143, Florida Statutes (1983), 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.

In our view, these provisions of law grant a public official the discretion to choose to abstain from voting or to choose to vote and file the required memorandum in instances of voting conflicts of interest.

We are of the opinion that if you vote on the subject legislation, you would be required to file a memorandum of voting conflict under Section 112.3143, as you have a professional interest in the matter and as the matter would inure to the gain of the railroad companies by which you are retained. Therefore you clearly are permitted to abstain from voting by Section 286.012.

Accordingly, we find that you may abstain from voting on the subject litigation.

QUESTION 2:

Does the Code of Ethics for Public Officers and Employees prohibit you from answering questions posed by legislators and other persons and from answering questions for legislative committees regarding the subject legislation?

This question is answered in the negative.

In your letter of inquiry you have advised that due to your involvement in the pending litigation, the sponsors of the subject legislation and other legislators occasionally ask you to provide technical background information regarding the lawsuits and the proposed legislation. Therefore, you question whether you may answer these questions when posed individually by legislators or other persons and whether you may answer questions regarding this matter before legislative committees, if you preface your remarks with a disclosure of your involvement in the pending litigation.

There is no provision in the Code of Ethics for Public Officers and Employees which would prohibit you from answering questions under the circumstances you have presented. Although legislators, like all other public officials, are prohibited from corruptly using their position to secure a special privilege or benefit for themselves or others, we do not perceive that responding to requests of this nature for background information would constitute the corrupt use of your position to secure a benefit for your client. You may wish to contact the House Committee on Ethics and Elections regarding the provisions of any House rules which might apply to your situation.