CEO 91-6 -- January 30, 1991

CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST

COUNTY TOURIST DEVELOPMENT COUNCIL MEMBER

VOTING ON MEASURE AWARDING FUNDS TO FESTIVAL

BEING COORDINATED BY SPOUSE'S COMPANY

To: Mary Greenwood, Assistant County Attorney, Monroe County (Key West)

SUMMARY:

No prohibited conflict of interest would be created were a county tourist development council to recommend funding a local festival sponsored by a local tourist association and coordinated by a company whose spouse is a member of the council. The council member should abstain from voting on matters involving the festival while his wife's company is under contract with the association to organize the festival. CEO's 76-213, 80-84, 83-29, 86-54, and 88-43 are referenced.

QUESTION:

Would a prohibited conflict of interest or voting conflict of interest be created were a Monroe County Tourist Development Council Member to vote upon a measure that would award funds to an association which sponsors a festival coordinated by his spouse's company?

Your question is answered in the negative with regard to a prohibited conflict of interest, and in the affirmative with regard to a voting conflict of interest.

In your letter of inquiry and in telephone conversations with our staff, you relate that Mr. John O'Brien is a member of the Tourist Development Council of Monroe County. His wife, along with another individual, formed a company specializing in support advertising, printing, and marketing services for the hospitality industry and tourist-related businesses. In June, 1990, the coordinator of a local festival resigned. The private association of businesses responsible for the festival then contracted with the company to coordinate the festival.

You further relate that the festival, as do other events in the county, requests tourist development tax revenues to promote and advertise the event each year. The Tourist Development Council makes recommendations on these requests for funds to the County Commission, which then votes upon the allocations. You question whether it would be a conflict of interest for the Council member to vote upon recommendations to fund the festival. You also indicate that pending an opinion from this Commission, the Council member has declared a conflict whenever any vote has been taken concerning the festival, has given his reasons, and then has abstained from voting.

The Code of Ethics for Public Officers and Employees provides in relevant part:

DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee of his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1989).]

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 (1989).]

The first of these provisions prohibits a Council member from acting in an official capacity to purchase any services, either directly or indirectly, from any business in which his spouse is a partner. We consistently have construed the term "indirectly" to exclude situations where the spouse's company acted as a subcontractor. See CEO 76-213, CEO 86-54, and CEO 88-43. In the situation you have described, the spouse's company is not receiving funding directly, but instead is a subcontractor to the association which sponsors the festival. Therefore, we conclude that it is not a violation of Section 112.313(3), Florida Statutes, for the Tourist Development Council to recommend funding the festival through the association.

However, we are of the opinion that the Council member should abstain from voting on matters involving the festival while his wife's company is under contract to coordinate the festival. Section 112.3143(3), Florida Statutes, as provided above, prohibits a local public officer from voting upon any measure which inures to his special private gain. The Commission has previously taken the position that if the matter being voted upon would inure to the gain of the spouse of a public officer, the public officer has a personal or private interest in the matter and should follow the procedures contained in Section 112.3143, Florida Statutes. See CEO 80-84, CEO 83-29, and CEO 86-54.

Accordingly, we find that no prohibited conflict of interest would be created were the Tourist Development Council to recommend funding the local festival sponsored by the association and coordinated by a company whose spouse is a member of the Council, but that the Council member should abstain from voting on matters involving the festival while his wife's company is under contract to the association to organize the festival.