CEO 76-209 -- December 16, 1976

VOTING CONFLICT OF INTEREST

MATTERS SUFFICIENT TO CREATE CONFLICT REQUIRING DISCLOSURE

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

Prepared by: Phil Claypool

SUMMARY:

Pursuant to s. 112.3143, F. S. 1975, a Memorandum of Voting Conflict is required to be filed when a public officer votes on a measure in which he has a personal, private, or professional interest which inures to his private gain or to that of a principal by whom he is retained. The applicability of the provision thus turns on the nature of the measure being considered and that measure's relationship to the officer's interests rather than on the identity of a party to the measure and that party's relationship to the voting officer. Where a customer of an officer's hardware store appears before his public body on a matter up for vote, and where the officer does not stand to gain or lose as a direct result of the outcome of the vote, no voting conflict of interest requiring disclosure is deemed to be constituted. A public officer acquires and nurtures many friendships and relationships with his constituency and would be faced with perpetual disclosure were such relationships alone deemed to constitute voting conflicts. Accordingly, the voting conflict of interest provision is found to be limited in scope to matters beneficial to the officer personally or to an interest in which he is personally involved.

QUESTION:

Am I, a city councilman, required to file a Memorandum of Voting Conflict whenever a customer of the hardware store in which I hold a material interest and by which I am employed appears before the city council on a matter requiring a vote?

Your question is answered in the negative.

In your request and in telephone conversation with our staff, you have stated that you are a member of the ____ and that you are the general sales manager of a ____ hardware company, in which you own less than 10 percent of the outstanding stock. Your hardware company does virtually all of its business selling wholesale to independent hardware companies, although it also sells directly to some contractors. Your business has been quite successful and does a large volume of business with about 2,500 different accounts.

As a city councilman, you are a public officer; therefore, you are required to comply with the following provision of the Code of Ethics for Public Officers and Employees:

Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, 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. [Section 112.3143, F. S. 1975; emphasis supplied.]

Note that a Memorandum of Voting Conflict, CE Form 4, is required to be filed only when you have voted on a measure in which you have a personal, private, or professional interest which inures to your private gain or to the gain of any principal who has retained you. Thus, the applicability of this provision turns on the nature of the measure being considered by the city council and that measure's relationship to your interests rather than on the identity of the party before the council and his relationship to you. Whether the measure inures to your special private gain or the special gain of your principal is a question of whether the interest which you hold is such that you, or your principal, would stand to gain or lose as a direct result of the outcome of the council's decision. See CEO 76-24, question 3.

An instructive example of this distinction is found in the contrast between two of our past opinions, CEO's 76-62 and 76-51. In the first of these opinions we found a voting conflict where a county commissioner/veterinarian was considering voting on an ordinance which required the vaccination of animals by licensed veterinarians. In the second opinion we found no voting conflict in a county commissioner's voting upon a matter in which his son represented a party.

A public officer, by the very nature of his position, acquires and nurtures many friendships and relationships with his constituency. Were he required to acknowledge and disclose every instance in which these relationships might affect his consideration of a proposal, every public officer would be faced with a never- ending task of disclosure. Recognizing this situation, it is our position that this provision be limited in scope to matters beneficial to the officer personally or to an interest in which he is personally involved.

Accordingly, we find that you are not required to file a Memorandum of Voting Conflict whenever a customer of the hardware company in which you hold a material interest and by which you are employed appears before the city council on a matter which requires a vote. There may be instances, however, in which the measure being considered would directly benefit you or your hardware company as well as a customer of the company, and in those instances you would be required to comply with the voting conflict provision quoted above.

Although you are not required to file a Memorandum of Voting Conflict whenever a customer appears before the council, we recommend that, in an abundance of caution, you disclose publicly at the meeting the relationship between your company and the customer, particularly when the council is approving the city's purchase of goods or services from that customer, in an effort to avoid even the appearance of impropriety.