CEO 84-108 -- November 29, 1984

VOTING CONFLICT OF INTEREST

TOWN COUNCIL MEMBERS EMPLOYED BY AND DOING BUSINESS WITH LARGE CORPORATION IN TOWN

To: Mr. Michael Kahn, Town Attorney, Town of Malabar

SUMMARY:

A Town Council member who is employed by a large corporation located in the Town is prohibited from voting on a matter which would inure to the special gain of the corporation by Section 112.3143, Florida Statutes, as amended by Chapter 84-357, Laws of Florida. CEO's 78-27, 79-76, 81-52 and 82-53 are referenced. However, a council member who is the president and sole shareholder of a firm which has contracted to do work for the corporation would not be prohibited from voting on a measure which inures to the special gain of the corporation unless he or his firm also stand to benefit, as the corporation is not a principal by whom the council member is retained. CEO's 76-209, 80-3 and 80-49 are referenced.

QUESTION 1:

Is a Town Council member prohibited from voting on a matter which would inure to the special gain of a large corporation which employs him and which is located in the Town?

This question is answered in the affirmative.

In your letter of inquiry and in a conversation with our staff, you have advised that Mr. Robert Theriault is a member of the Town Council of the Town of Malabar. You also advise that he is employed by a large telecommunications and electronics corporation which is located in the Town and which has a pervasive effect on the economy of the Town and of the entire County.

In addition, you have advised that recently a matter involving the corporation came before the Council upon which the subject Council member abstained from voting. Because of the size of the corporation, you anticipate a number of measures coming before the Council involving the corporation, including rezoning applications, variance applications, and site plan reviews. You question whether the subject Council member is required to abstain from voting on matters such as these when they affect the corporation.

Section 112.3143, Florida Statutes, as amended by Chapter 84-357, Laws of Florida, prohibits a municipal public officer from voting upon a measure which inures to his special private gain, and from knowingly voting upon a measure which inures to the special gain of a principal by whom he is retained. In previous opinions interpreting the identical language in the former law, we have advised that a public official's employer is a "principal by whom he is retained." See CEO 78-27, CEO 79-76, CEO 81-52 and CEO 82-53. As the Legislature chose to use the same language when designating the situations in which a public official now must abstain from voting, we are of the opinion that our prior interpretations remain valid.

Accordingly, we find that the subject Town Council member would be prohibited from voting on a measure which inures to the special gain of the corporation which employs him.

QUESTION 2:

Is a Town Council member prohibited from voting on a measure which inures to the special gain of a large corporation in the Town, where the Council member is the president and sole shareholder of a firm which has contracted to do work for the corporation?

You have advised that Mr. Lloyd Behrendt also is a member of the Malabar Town Council and that he is the president and sole shareholder of a public relations firm. You also have advised that his firm is doing work on a project basis for the corporation referenced in your first question and in the past has contracted with the corporation to do public relations work and to prepare films and other audio-visual aids.

We are of the opinion that the subject Council member is not required by Section 112.3143, Florida Statutes, as amended, to abstain from voting on a measure which would inure to the special gain of the corporation with which his public relations firm is contracting. See CEO 76-209 (hardware store sales manager not retained by customers of store), CEO 80-3 (city commissioner owning contracting company not retained by company contracting with his company for rock-loading operations), and CEO 80-49 (real estate guide publisher not retained by persons advertising in the guide).

This is not to say that the subject Council member never would be required to abstain on a measure benefiting the corporation, as it is conceivable that his public relations firm could stand to gain by reason of a particular measure before the Council affecting the corporation. For example, see CEO 78-96, Question 1, where the commission to a city council member's real estate firm was contingent in part on the rezoning of a parcel of property.

Your question is answered accordingly. For further guidance as to the phrase "special gain," in addition to the above-referenced opinions see CEO 77-129 and CEO 84-80. In addition, your inquiry raises questions concerning the effect of abstentions required by the new voting conflicts law on the quorum and voting requirements of Section 166.041, Florida Statutes. As we do not have the authority to render an opinion interpreting that provision, we suggest that you contact the Attorney General for an opinion on that subject.