CEO 86-86 -- December 11, 1986

VOTING CONFLICT OF INTEREST

D.H.R.S. EMPLOYEE SERVING ON DEVELOPMENTAL DISABILITIES PLANNING COUNCIL AND VOTING ON FUNDING TO D.H.R.S.

To: Ms. Melissa C. Jacoby, Executive Staff Director, Department of Health and Rehabilitative Services, Tallahassee

SUMMARY:

No voting conflict of interest would be created under Section 112.3143, Florida Statutes, were the executive staff director of the Department of Health and Rehabilitative Services to vote as a member of the Florida Developmental Disabilities Planning Council on the distribution of federal funds to the Department. Here, the matters considered by the Council relate to the public interests of the Department rather than to the private interests of the executive staff director. Previous opinions CEO 77-159, 78-77, 82-91, and 84-42 are referenced.

QUESTION:

Would a voting conflict of interest be created under Section 112.3143, Florida Statutes, were you, the Executive Staff Director of the Department of Health and Rehabilitative Services, to vote as a member of the Florida Developmental Disabilities Planning Council on the distribution of federal funds to the Department?

Your question is answered in the negative.

In your letter of inquiry you advise that you serve as the Executive Staff Director of the Department of Health and Rehabilitative Services. In that capacity you serve as the representative of the Department on the Florida Developmental Disabilities Planning Council. The Council has been created by Section 393.001, Florida Statutes, and is composed of twenty‑seven members appointed by the Governor. In addition to a representative of the Department, the membership of the Council includes the Vocational Rehabilitation Division Director of the Department of Labor and the Chief of the Bureau of Education for Exceptional Students of the Department of Education.

Among the functions of the Council is the development of a State plan for distribution of federal funds. The three Departments listed above may be recipients of those funds. All Council members vote to approve the State plan. In addition, you advise that you serve on the Council's Programs and Services Committee, which is charged with developing the State plan as well as with recommending funding of specific projects to the Council.

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

As used in this section, the term 'public officer' includes any person elected or appointed to hold office in any agency, including any person serving on an advisory body.

* * *

Except as provided in subsection (3), no public officer is prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure 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(1) and (2), Florida Statutes (1985).]

This provision would require a member of the Council to file a memorandum of voting conflict (see Commission on Ethics Form 4) within fifteen days after voting "upon any measure which inures to his special private gain or the special gain of any principal by whom he is retained . . . ."

In a previous opinion, CEO 77-159, we advised that no voting conflict of interest would be created were a public defender to vote, either as a member of a commission on criminal justice standards and goals or as a member of a county criminal justice advisory council, upon grant applications or other matters which might be advantageous or disadvantageous to the office of the public defender. We advised there that the measures to be considered would not inure to the special private gain of the public defender, but rather would inure to the gain of his public agency. Similarly, in CEO 78-77, we advised that no voting conflict would be created were a village commissioner who served on a county transportation authority to vote as a member of the commission on matters affecting the transportation authority. In CEO 82-91, we advised that no voting conflict of interest was created where a city mayor voted to excuse his absence from city council meetings, observing that the voting conflict statute applies to conflicts between a public official's public duties and his private interests and that his vote pertained to his public position and affected him in his capacity as a public official, rather than in his capacity as a private citizen. See also CEO 84-42.

Here, we note particularly that you serve on the Developmental Disabilities Planning Council as a Representative of the Department of Health and Rehabilitative Services. As the matters considered by the Council regarding the distribution of federal funds to the Department relate to the public interests of the Department rather than to your private interests, we find that you are not presented with a voting conflict of interest when considering these matters as a member of the Council.

Accordingly, we find that no voting conflict of interest would be created were you to vote as a member of the Planning Council on the distribution of federal funds to the Department of Health and Rehabilitative Services, while you are employed as the Executive Staff Director of the Department.