CEO 87-40 -- June 11, 1987

VOTING CONFLICT OF INTEREST

COUNTY CONSTRUCTION INDUSTRY LICENSING BOARD MEMBER

VOTING ON COMPETENCY CARD APPLICATION OF INDIVIDUAL

IN SAME PROFESSIONAL CATEGORY AS BOARD MEMBER

To: Mr. Thomas D. Skidmore, Attorney, Sumter County Construction Industry Licensing Board, Bushnell

SUMMARY:

A contractor-member of a county construction industry licensing board is not prohibited by Section 112.3143(3), Florida Statutes, from voting on the competency card application of an individual who is in the same professional category as the board member. Under the circumstances presented, such a measure would not inure to the special private gain of the public officer or of a principal by whom he is retained. CEO's 80-3 and 82-74 are referenced.

QUESTION:

Is a contractor member of a county construction industry licensing board prohibited by Section 112.3143, Florida Statutes, from voting on the competency card application of an individual who is in the same professional category as the board member?

Your question is answered in the negative.

In your letter of inquiry you advise that the Sumter County Construction Industry Licensing Board is composed of 10 members consisting of five contractors and five laypersons. The Board meets once a month and is charged primarily with the issuance of local competency cards and the regulation of the construction industry in the County. You question whether a prohibited conflict of interest would be created were a contractor-member of the Board to vote on the competency card application of an individual who is in the same professional category as the board member. For example, a member/contractor may be a general contractor and the applicant may be requesting a competency card in the category of general contractor.

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 (1985).]

This provision prohibits a county officer from voting on a matter which inures to his special private gain and from knowingly voting upon a measure which would inure to the special gain of a principal by whom he is retained.

In previous opinion CEO 80-3, we advised that the fact that a city commissioner might gain by a competitor's loss was too speculative to find a voting conflict of interest. We also found that whatever gain his employer might receive by denying a competitor's request would not constitute "special gain," as all of the competitors of the requesting company seemingly would share in that benefit.

Similarly, in CEO 82-74, we found no voting conflict of interest to be created were a city commissioner, who was also president of a broadcast and cable television company, to participate in discussion and vote regarding the city's cable television franchise. As it appeared that the commissioner's company would benefit by his vote only through the possibility that a competitor would be hurt, any gain was found to be speculative and not to constitute "special gain."

By applying this rationale to the case at hand, it appears that although the contractor-member could vote in such a manner as to limit the number of contractors in the county, thereby minimizing his competition, any gain realized by voting on a competency card application would be remote and speculative, and in any event would not constitute "special private gain."

Accordingly, we find that a contractor-member of a county construction industry licensing board is not prohibited from voting on the competency card application of an individual who is in the same professional category as the board member.