CEO 89-28 -- June 14, 1989

CONFLICT OF INTEREST; VOTING CONFLICT

CITY COMMISSIONER VOTING ON MEASURES AFFECTING CLIENTS OF FORMER SPOUSE

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

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, where a City Commissioner's former spouse is retained as a consultant and publicist for entities which appear before the City Commission, even though the Commissioner receives alimony payments from the former spouse. Neither the marital relationship nor the receipt of alimony is considered to be an "employment or contractual relationship" within the scope of this prohibition. Nor would the Commissioner be prohibited by Section 112.3143, Florida Statutes, from voting on measures affecting a client of the former spouse, as such measures would not inure to the special private gain of the Commissioner.

QUESTION:

Would a prohibited conflict of interest or a voting conflict of interest be created where you, a City Commissioner, are called upon to vote on a matter affecting a person or entity retaining your former spouse as a consultant?

Your question is answered in the negative.

In your letter of inquiry you advise that you serve as a member of the City Commission of the City of Miami. You also advise that your former spouse is a consultant and publicist for many private entities throughout the State. Other than your receipt of alimony payments from your former spouse, a non-contingent obligation, you have no contractual or business relationship with your former spouse, you advise. You question whether you may vote on a matter in which the entity or person appearing before the City Commission has retained your former spouse.

As a preliminary matter, although you have not raised the issue, we address the question of whether any provision of the ethics laws would prohibit your accepting alimony from a former spouse who is consulting for entities coming before the City Commission or would prohibit your former spouse from consulting with these entities. The only provision of the Code of Ethics for Public Officers and Employees which might apply under these circumstances provides as follows:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.--No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), Florida Statutes (1987).]

This provision prohibits you from engaging in employment and contractual relationships which present a conflict of interest with your responsibilities as a City Commissioner.

We previously have not considered marriage to be an employment or contractual relationship within the scope of Section 112.313(7)(a). See CEO 85-52 (Section 112.313(7)(a) addresses conflicts of interest based on the employment or contractual relationships of the public officer rather than of the officer's spouse), and CEO 86-60 (Section 112.313(7)(a) does not address conflicts of interest based on a spouse's interests). Therefore, it would be incongruous to conclude that the obligation to pay alimony resulting from the dissolution of a marriage would constitute an employment or contractual relationship for purposes of Section 112.313(7)(a). In addition, we are of the opinion that the obligation to pay alimony, being authorized by law and imposed by court order, does not constitute a contractual type of relationship. See CEO 84-101, in which we concluded that membership on the medical staff of a hospital does not constitute an employment or contractual relationship with the hospital because of the way in which staff membership is authorized and governed by law. For these reasons, we conclude that the Code of Ethics does not prohibit your accepting alimony from a former spouse who is consulting with entities coming before the City Commission, and would not prohibit your former spouse from consulting with those entities while you serve on the City Commission.

Regarding voting conflicts for local officials, Section 112.3143(3), Florida Statutes, provides:

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.

This provision prohibits you from voting on a measure which inures to your special private gain or to the special gain of a principal by whom you are retained and requires that certain disclosures be made under these circumstances. It does not address in specific terms measures in which an official's spouse or former spouse may be involved.

In past opinions, we have advised that if a measure would inure to the special private gain of the spouse of the voting official and the spouse contributes to the support of the official, the measure would inure to the special private gain of the official. See CEO 80-6 and CEO 83-29. However, if the measure under consideration would not benefit the spouse directly, but instead would benefit the spouse's employer or clients, we have concluded that there would be no special gain to the spouse or the official and that no voting conflict of interest would be created. See CEO 83-49 and CEO 80-6. It appears that measures benefiting your former spouse's clients generally would not benefit him, unless his compensation is made contingent upon action by the City Commission. Under the rationale of our opinions dealing with spouses, therefore, it does not appear that you would be prohibited from voting on measures affecting clients of your former spouse.

Beyond this observation, however, we see a significant distinction between the situation of a public official and his or her spouse whose interests generally may be said to be shared and the situation of an official and a former spouse where interests which once were aligned may even be at odds with one another. When the obligation of support owed by the former spouse of an official has been set by a court, matters benefiting the former spouse do not result in the same benefit being passed on to the public official because the duty to pay alimony remains fixed. We recognized this distinction in CEO 87-72, in which we concluded that a county commissioner was not prohibited from voting on a matter affecting property owned by his former spouse. There, we also noted that Section 112.3143 does not address the question of whether an official must abstain from voting because of possible bias or prejudice.

Accordingly, we find that you are not prohibited from voting on a matter affecting a person or entity retaining your former spouse as a consultant. Nor are you precluded from accepting alimony from a former spouse who is consulting for entities coming before the City Commission. In addition, the Code of Ethics does not prohibit your former spouse from consulting with entities which may appear before the City Commission.