CEO 90-20 -- March 8, 1990

CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST

CITY COUNCIL MEMBER ALSO A MEMBER OF CITIZENS'

GROUP WITH PENDING LAWSUIT AGAINST CITY

To: John Scianna, City Council Member (Palm Bay)

SUMMARY:

No prohibited conflict of interest would be created were a city council member to hold membership in a citizens' group which has a pending lawsuit against the city. Section 112.313(7)(a), Florida Statutes, would not be violated, as the group is neither doing business with nor regulated by the city, and no continuing conflict would be presented as the council member resigned as chairman of the group and removed his name as a plaintiff to the lawsuit. However, a voting conflict of interest would be created under Section 112.3143, Florida Statutes, as any vote on the lawsuit would inure to the special private gain of the council member as a property owner with a special assessment against his property.

QUESTION 1:

Would a prohibited conflict of interest be created were you, a city council member, to be a member of a citizens' group which has filed a lawsuit against the city?

This question is answered in the negative.

In your letter of inquiry, you have advised that you currently serve as a City Council member in the City of Palm Bay. Prior to your election, you served as chairman of a citizens' group seeking a charter amendment restricting the imposition of special assessments against property owners. You, along with other members of the group, filed a class action lawsuit questioning the propriety of a special assessment levied for street repaving and repair, which included an assessment on your property. While this suit was pending, a referendum supported by this group was approved by the voters which restricted the use of such assessments. Subsequently, you were elected to the City Council, with part of your campaign platform including the special assessment issue. You now have resigned as chairman of the citizens' group and had your name removed as a plaintiff in the suit. However, the lawsuit is still pending against the City. You inquire whether this situation presents a prohibited conflict of interest and whether you may vote on matters pertaining to the lawsuit.

Section 112.313(7)(a), Florida Statutes, provides:

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.

This section would prohibit you from holding employment or a contractual relationship with the citizens' group if it were doing business with or regulated by the City. Under the facts presented, however, we see no basis for finding that the group is doing business with or regulated by the City.

The second provision of this section would prohibit you from holding a contractual relationship which would create a continuing or frequently recurring conflict between your private interests and the performance of your public duties or that would impede the full and faithful discharge of those duties. In CEO 82-14, we advised that membership in a voluntary, unincorporated association is a contractual relationship. However, we determined that mere membership was not sufficient to create a prohibited conflict under the above provision, while service as an officer or director may create such a conflict. Although you formerly served as chairman of the association, you resigned this post immediately after your election to the Council. In addition, you had your name removed as a plaintiff to the class action lawsuit. Under these facts, where apparently one reason for your election to the Council was your position regarding these special assessments and you acted to the degree possible to remove yourself from the ongoing lawsuit as a private party, we do not find that a prohibited conflict of interest would be created under this provision. While in CEO 82-7 and similar opinions we held that public officials could not represent parties with claims against their government entities, we do not find those opinions to be applicable where you have removed yourself from any representation of the group either in the lawsuit or before the Council.

Accordingly, we find that no prohibited conflict of interest exists where you serve as a City Council member and a lawsuit is pending against the City by a citizens' organization of which you are a member.

QUESTION 2:

Are you prohibited by Section 112.3143, Florida Statutes, from voting on measures before the Council concerning the lawsuit filed against the City by a citizens' group of which you are a member?

This question is answered in the affirmative.

You also indicate that you may be called upon to vote on matters pertaining to the lawsuit. 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.

In CEO 82-64, we advised that a voting conflict would exist were parks and recreation commissioners to vote on measures which would direct city funds to an organization or a geographic area in which commissioners held interests. Under the rationale of these opinions, you would be precluded from voting on a measure which would affect the assessment against your property if that measure inured to your "special private gain." One measure of whether a gain is "special" is the size of the class affected by the measure. Newspaper articles submitted with your letter of inquiry indicate that about 300 property owners are affected by the special assessment which is at issue in the lawsuit, with assessments ranging from $200 to $2,000. Given the direct, personal financial effect striking the assessment would have on your interests, and the clearly defined class of persons who would be benefited, we find that you would be required to abstain from voting on any measure concerning the lawsuit and comply with the disclosure requirements of the above section. Similarly, in CEO 77-14 we advised that a city councilman would be presented with a voting conflict of interest when called upon to vote on measures relating to a lawsuit brought against the city by a condominium association of which he was a director.

Accordingly, we find that you are prohibited from voting on matters pertaining to the lawsuit brought by a citizen's group of which you are a member regarding special assessments on property owned by you and other members of the group.