CEO 87-14 -- March 11, 1987

VOTING CONFLICT OF INTEREST

APPLICABILITY OF VOTING CONFLICT LAW TO EROSION PREVENTION

DISTRICT COMMISSIONER APPOINTED TO HOLD ELECTIVE POSITION

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

SUMMARY:

An erosion prevention district commissioner who is appointed to hold an elective position is not subject to the requirement of Section 112.3143(2)(b), Florida Statutes, that he make disclosure of the nature of any conflict of interest prior to participating in the matter which gives rise to the conflict. However, pursuant to Section 112.3143(3), Florida Statutes, a commissioner must abstain from voting on any measure which inures to his special private gain or to the special gain of a principal by whom he is retained, must announce the nature of the conflict before the vote is taken, and must file a memorandum of voting conflict within 15 days of the vote.

QUESTION:

Is an Erosion Prevention District Commissioner who is appointed to hold that elective position required to disclose a conflict of interest under Section 112.3143, Florida Statutes, prior to discussing and voting on a matter which presents a conflict under the terms of that statute?

In your letter of inquiry you advise that .... and .... have been appointed by the Governor to serve as Commissioners of the Captiva Erosion Prevention District. Under Chapter 81-413, Section 5, Laws of Florida, the five members of the District Board are elected by the qualified electors residing within the District.

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

No appointed public officer shall participate in any matter which inures to his special private gain or the special gain of any principal by whom he is retained, without first disclosing the nature of his interest in the matter. Such disclosure, indicating the nature of the conflict shall be made in a written memorandum filed with the person responsible for recording the minutes of the meeting and shall be incorporated in the minutes; if the disclosure is initially made orally at a meeting attended by the officer, the written memorandum disclosing the nature of the conflict shall be filed within 15 days with the person responsible for recording the minutes of the meeting and shall be incorporated in the minutes. A copy of such memorandum, which shall become a public record upon filing, shall immediately be provided to the other agency and shall be read publicly at the meeting prior to the consideration of the matter. For purposes of this paragraph, the term "participate" means any attempt to influence the decision by oral or written communication whether made by the officer or at his direction. [Section 112.3143(2)(b), Florida Statutes (Supp. 1986).]

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 (1985).]

Section 112.3143(2)(b), Florida Statutes, in essence requires an appointed public officer to disclose a conflict of interest before participating in that matter, that is, before making any attempt to influence the decision by oral or written communication. We are of the opinion that although this statute applies to an "appointed public officer," this term should be read to mean only persons holding an appointive position, rather than one which regularly is filled by election. Otherwise, a broader reading of the statute would result in having different members of the same board subject to different rules for disclosing conflicts of interest.

Therefore, Section 112.3143(3), Florida Statutes, provides the rule for voting conflicts of interest to be followed by all members of the District Board. As the District is not a community redevelopment agency and as District Commissioners are not elected on a one-acre, one-vote basis, a District Commissioner is prohibited from voting upon a measure which inures to his special private gain or to the special gain of a principal by whom he is retained. The statute requires a Commissioner to publicly announce the nature of his conflict before the vote is taken by the Board, and to follow by filing a written memorandum of voting conflict (Commission on Ethics Form 8B) with the person responsible for recording the minutes of the meeting.

Your question is answered accordingly.