CEO 91-72 -- December 6, 1991

VOTING CONFLICT OF INTEREST

TOWN COMMISSIONER VOTING ON MATTERS INVOLVING

TOWN'S FIRE DEPARTMENT AND ITS CHIEF WHERE CHIEF IS

COMMISSIONER'S SON

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

SUMMARY:

A town commissioner is not prohibited by Section 112.3143(3), Florida Statutes, from voting on the town's budget which includes provisions to purchase firefighting equipment which will be used by his son, the town's volunteer fire chief. Because the equipment can be used by other members of the fire department when necessary, and because the equipment is actual firefighting equipment as opposed to support equipment such as fire station furniture, the gain to the son is not "special" or "private." CEO 83-95 is referenced.

In addition, the commissioner is not prohibiting from voting to waive a town festival vending fee for the benefit of a fire department support organization of which his son is a member.

QUESTION 1:

Were you, a Town Commissioner, prohibited from voting on the Town's budget which provided for the purchase of firefighting equipment which would be used by your son who is the Town's fire chief?

Your question is answered in the negative.

In your letter of inquiry and subsequent communication with our staff, you advise that you are a recently-elected member of the Town Commission of Melbourne Beach, a small municipality of approximately 3,000 people in central Florida. You further advise that the Town is served by a volunteer fire department, which is considered to be both a nonprofit corporation and a department of the Town's government. The corporate arm is organized for recruiting and training new firefighters and for providing a social setting for the relaxation of firefighters after they have fought fires or trained. The corporation has no operational command authority over the department; however, the corporation does retain by agreement some say in the use of fire station bays. The corporation is not paid or compensated for the firefighting services or equipment it provides to the Town. You further relate that the department, as opposed to the corporation, is the formal arm of the Town's government which "employs" one firefighter (actually, a paid part-time maintenance worker who is also a volunteer firefighter) and supervises most of the firefighting equipment, which is Town-owned. The Town Commission, through its annual budget, funds the department so that it may purchase fire equipment ranging from trucks to fire hoses to tools.

Your son, who lives with his family financially and physically independent of you, is the department's Chief, having achieved that position prior to your being elected. In addition, you relate, as a member of the department your son is "under the control and a member of the corporation and under the control of the Town government." The Chief is the department's head and reports to the Town Manager. The Chief is not an officer or director of the corporation and he is not paid for his services to the Town nor reimbursed for his expenses.

As a Commissioner, you have voted (two budget workshop votes and two votes on the final budget) on the Town's budget, which included items for the Fire Department, including a new "command vehicle" (a specially-equipped light truck valued at approximately $18,000) and a "bunker jacket"--firefighting equipment which would be owned by the Town but used "exclusively" by the Chief, your son. A bunker jacket is a piece of protective clothing worn in fighting fires or in firefighting training. The jacket purchased for the Chief could be worn by other firemen, if necessary. Groups or lots of bunker jackets and firemen's boots are purchased through the Town's budget. The Town Commission drafts the budget at a workshop after the Town's department heads have submitted their budgetary requests to the Town Manager. The Commission votes on the budget draft and then the actual budget is voted on twice in public. All votes are on the entire budget as a whole and not on specific items in the budget.

The Chief is on call for the Fire Department 24 hours per day, every day. You relate that this constant commitment to respond requires that the Chief keep certain Department fire-response equipment with him at all times, including boots, bunker jacket, maps, and a command vehicle. You advise further that the new command vehicle is particularly necessary because when the Chief has used his civilian automobile in the capacity of a command vehicle traffic has failed to yield or ignored the civilian vehicle and thus it has been particularly difficult for the Chief to negotiate heavily-traveled highway A1A in responding to fire calls in the Town. In addition, you relate that, as Chief, your son has the confidence of the other firefighters and that his presence with the Department and 24-hour on-call status generate high morale which gives the Department an effectiveness it otherwise would lack.

You ask whether your voting as outlined above constituted a prohibited voting conflict of interest under the voting conflicts law as amended by Chapter 91-85, Laws of Florida, effective October 1, 1991.

Section 112.3143(3)(a), Florida Statutes, is the portion of the voting conflicts law applicable to you, since you are an elected local public officer. That section provides:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain of a relative or business associate of the public officer. 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.

This section, assuming your votes occurred on or after October 1, 1991, prohibits your voting on measures which inure to the special private gain of a relative. For purposes of the new voting conflicts law, "relative" would include your son. Prior to October 1, 1991, the voting conflicts law in most circumstances was not construed to prohibit votes on measures inuring to the special private gain of relatives and, thus, would not have prohibited your votes under the circumstances you present.

The answer to your question, therefore, is controlled by whether the gain to your son from the issuance of the firefighting equipment would be "special" and "private." For the reasons stated below, we find that the gain would be neither special nor private.

In CEO 83-95, we opined that a commissioner of a fire protection and rescue service district would not have a voting conflict were he to vote on matters such as the purchase of furniture or a coffee pot which he would use at one of the district's fire stations as an employee of the county ambulance service. In that opinion, we reasoned, since other personnel would be in a position to use the items, the gain would not be "special" to the commissioner. Similarly, since other fire department personnel could use the equipment issued to your son, as necessary, and since the items have a direct, functional use in combating fires, as opposed to a support use such as that afforded by fire station furniture or a fire station coffee pot, its gain to your son is not special. Further, we find that any private gain to your son from the purchases is only incidental to the public gain caused by the provision of firefighting equipment.

Accordingly, we find that your votes were not prohibited by the voting conflicts law.

QUESTION 2:

Would you be prohibited from voting on a measure to waive, on behalf of the Fire Department support corporation, a fee necessary for organizations to engage in vending at a Town-operated festival?

This question is answered in the negative.

You advise us further that you will be called upon to vote on matters relating to the corporation, such as waiver of an approximate $500 vending fee applicable to the corporation's food and drink sales at a Town government-operated festival. Other organizations would still be subject to paying the fee.

Since the fee waiver would not inure to your own special private gain and since the corporation is not your "principal" or your "relative," your vote on the measure would not violate the voting conflicts law. Our response to this question is based on our determination that, under the facts you present, your son is not an officer or director of the corporation, does not receive pay from it, and is not in effect its alter ego.

Your question is answered accordingly.