CEO 88-46 -- July 29, 1988

VOTING CONFLICT OF INTEREST

WATER AND SEWER DISTRICT COMMISSIONER

VOTING ON REIMBURSEMENT OF LEGAL FEES

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

SUMMARY:

A water and sewer district commissioner is not prohibited by Section 112.3143, Florida Statutes, from voting on issues concerning the reimbursement of legal fees and costs which he incurred in connection with a complaint filed against him with the Commission on Ethics. Section 112.313(5), Florida Statutes, allows a public officer to vote on matters affecting his expenses, as provided by law. The common law provides that a public officer is entitled to representation at the public expense in a lawsuit arising from performance of official duties while serving a public purpose. CEO's 85-19 and 84-116 are referenced.

QUESTION:

Is a water and sewer district commissioner prohibited by Section 112.3143, Florida Statutes, from voting on issues concerning the reimbursement of legal fees and costs which he incurred in connection with a complaint filed against him with the Commission on Ethics?

Your question is answered in the negative.

In your letter of inquiry you advise that .... is a Commissioner of the Lanark Village Water and Sewer District. You further advise that a complaint was filed with the Commission on Ethics which alleged that Mr. Harrison had violated Section 112.3143, Florida Statutes, when he voted in his capacity as Commissioner on a measure which would have extended a central sewage system along property which he owned. He retained private counsel to represent him in the matter.

Based on the preliminary investigation of the complaint and on the recommendation of the Commission's Advocate, the Commission found that there was "no probable cause" to believe that the Commissioner had violated the voting conflict law as alleged in the complaint. You question whether the Commissioner is prohibited by Section 112.3143, Florida Statutes, from voting on measures concerning the reimbursement of the legal fees and costs which he incurred in connection with the complaint filed against him with the Commission on Ethics.

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 (1987).]

This provision prevents a local officer from voting on a measure which would inure to his special private gain. We previously have advised that the prohibition would apply where the official stands to gain or lose as a direct result of the outcome of the measure being considered.

In CEO 84-116 we advised that Section 112.3143 required a city commissioner to abstain from voting on issues concerning reimbursement by the city of legal fees incurred by him in the defense of a lawsuit. In that instance, the commissioner was not sued in his official capacity, and it was unclear whether the lawsuit arose out of his official duties. We found that the decision of whether to reimburse the commissioner the legal fees would inure to his special private gain as he would be required to pay the fees personally if the city did not reimburse him.

The Code of Ethics also provides:

SALARY AND EXPENSES. -- No public officer shall be prohibited from voting on a matter affecting his salary, expenses, or other compensation as a public officer, as provided by law. [Section 112.313(5), Florida Statutes (1987).]

We previously advised that this provision clearly permitted a public officer to vote on a matter affecting his travel expenses, as provided by Section 112.061, Florida Statutes, regardless of the more general prohibition contained in Section 112.3143. See CEO 85-19. In our view, Section 112.313(5) also would permit a public officer to vote to reimburse himself for legal fees when such reimbursement is "provided by law."

The Florida courts previously have concluded that payment of attorney's fees by a governmental unit may be authorized under certain circumstances in view of the common law principle that public officers are entitled to a defense at the expense of the public in defending against unfounded allegations of official misconduct, arising from performance of official duties and while serving a public purpose, notwithstanding the absence of statutory authorization. See Nuzum v. Valdes, 407 So. 2d 277 (Fla. 3d DCA 1981); Ellison v. Reid, 397 So. 2d 352 (Fla. 1st DCA 1981); Markham v. State Department of Revenue, 298 So. 2d 210 (Fla. 1st DCA 1974). Relying on Ellison v. Reid, supra, the Florida Attorney General opined that a city was authorized to pay for the defense of its former city manager who was charged with a violation of the Code of Ethics if the Commission on Ethics found no probable cause and dismissed the complaint and where the city's governing body determined that the alleged misconduct arose from the performance of the manager's official duties and while serving a public purpose. See AGO 85-51.

Statutory law also provides for the payment of attorney's fees in a number of instances. For example, Section 286.011(7), Florida Statutes, provides for reimbursement of legal fees to public officers who are charged with violations of that section, the Sunshine Law, and subsequently are acquitted. A broader authorization appears at Section 111.07, Florida Statutes, which provides in relevant part:

If any agency of the state or any county, municipality, or political subdivision of the state is authorized pursuant to this section to provide an attorney to defend a civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action of any of its officers, employees, or agents and fails to provide such attorney, such agency, county, municipality, or political subdivision shall reimburse any such defendant who prevails in the action for court costs and reasonable attorney's fees.

The question presented is whether the phrase "as provided by law" in Section 112.313(5) contemplates a common law authorization for the payment of expenses in addition to a statutory authorization for the payment of expenses which would be similar in nature. The legislative intent of Section 112.313(5) in this context is not clear. We have found nothing in the legislative history of Section 112.313(5) which would bear on this issue.

However, in view of the statutory authorizations for payment of attorney's fees, it would appear inconsistent to conclude that an official may vote on the payment of attorney's fees for his representation in a civil or criminal court case but not in a Commission on Ethics proceeding. Further, we note that through the enactment of Section 2.01, Florida Statutes, the Legislature has expressly adopted the common law as being in force in this State. For these reasons, we conclude that a common law authorization for the payment of attorneys fees would be "as provided by law" for purposes of Section 112.313(5).

Accordingly, we find that the subject Commissioner is not prohibited by Section 112.3143(3), Florida Statutes, from voting on issues concerning the reimbursement of legal fees and costs which he incurred in connection with a complaint filed against him with the Commission on Ethics.