CEO 91-3 -- January 30, 1991

VOTING CONFLICT OF INTEREST

CITY CONTRACTORS' REGULATORY BOARD MEMBER

VOTING ON DISCIPLINARY MATTERS INVOLVING GENERAL CONTRACTOR

FOR WHOM THE MEMBER WAS A SUBCONTRACTOR

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

SUMMARY:

A member of a city's contractors' regulatory board is prohibited from voting by Section 112.3143(3), Florida Statutes, on disciplinary matters affecting a general contractor, when at the time of the vote, the board member had a subcontract with the general contractor. Because suspension or revocation of the general contractor's license is a possible result of the disciplinary proceeding, the measure would inure to the special private gain of the subcontractor/board member.

QUESTION:

Was a member of a city contractors' regulatory board, who had subcontracted with a general contractor who was before the Board for possible disciplinary proceedings on two cases, prohibited from voting on those cases?

Your question is answered in the affirmative.

In your letter of inquiry you advise that . . . . is a member of the City of Cape Coral Contractors' Regulatory Board, a board whose members are appointed by the City Council. The Board is composed entirely of persons employed in the construction trade, pursuant to the ordinance which established the Board. The duties of the Board include the issuance of local competency licenses in the construction trade, as well as hearing cases brought by the City against contractors for offenses enumerated in the City's licensing ordinances, including such things as building code violations, abandonment of construction, or fraud. The Board, upon finding that a locally licensed contractor has violated the ordinance, has the power to discipline the contractor by reprimanding him, or by suspending or revoking his license. In the case of a state-certified contractor, the Board has the authority to suspend or revoke the contractor's ability to obtain permits from the City of Cape Coral. The decisions of the Board are final unless appealed to the City Council by either the City or the contractor.

On February 28, 1990, two cases were heard by the Board involving a locally licensed residential building contractor. In both cases the Board voted to find the general contractor not guilty of charges that the contractor had violated City ordinances by departing from the plans or specifications for a project without the written consent of the owner and the City's building department. At the time of the vote, the subject Board member's corporation had active contracts with the general contractor facing disciplinary action, but the Board member did not abstain from voting on the matters or declare any conflict of interest. The Board member in question did file a conflict disclosure form thirty days after the vote was taken, after a homeowner who was dissatisfied with the vote of the Board complained to the City Council.

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.]

In addition, Section 112.3143(2)(b), Florida Statutes, prohibits an appointed official from participating in a matter in which he has an interest until he discloses the nature of that interest pursuant to statutory procedures.

We have not previously rendered an opinion that directly addresses the issue raised by this matter. That issue is whether the vote on disciplining the general contractor would benefit the Board member. If action that could have been taken by the Board would have resulted in gain or loss to the subcontractor/Board member, then the Board member should have abstained from voting in the disciplinary proceedings. It is conceivable that the subcontractor/Board member could have been adversely affected by a decision to suspend or revoke the local contractor's license, which the Board had the authority to do, because the property owner would have to hire a new contractor presumably with new subcontractors. Under this scenario, it is possible that the subcontractor/Board member would not be allowed to complete the work he had undertaken or was going to undertake for the general contractor. In that event, votes in the disciplinary proceedings would have inured to the subcontractor/Board member's special private gain, resulting in a violation of Section 112.3143, Florida Statutes.

Accordingly, we find that the subject Board member was prohibited from voting on disciplinary proceedings involving a contractor with whom the Board member was under subcontract at the time of the vote, as the outcome of the vote could have inured to the subcontractor/Board member's special private gain.