CEO 92-1 -- January 24, 1992

VOTING CONFLICT

CITY COUNCILMAN VOTING ON MEASURE OPPOSED BY

BUSINESS DOING BUSINESS WITH

HIS COMPANY

To: Eddie Cabellero, City Councilman, City of Tampa

SUMMARY:

Section 112.3143, Florida Statutes, prohibits a local public official from voting on a matter which would inure to his special private gain, to the special gain of a principal by whom he is retained, to the gain of the parent organization or subsidiary of a corporate principal by which he is retained, or to the special private gain of a relative or business associate of the public officer. The applicability of this provision turns on the nature of the measure's relationship to the public official's interests rather than on the identity of the party before the public official's agency. Accordingly, a city council member is not prohibited from voting on an amendment to the city's comprehensive plan which is opposed by a company that deals with his company at "arms length" and sells his company both services and wholesale products, when neither he nor his company would be affected either directly or indirectly by the passage or defeat of the plan amendment.

QUESTION:

Are you, a member of a City Council, prohibited from voting on a plan amendment to the city's comprehensive plan which was opposed by a company which sells your company both services and wholesale products?

Your question is answered in the negative.

Through your letter of inquiry, you advise that you are a member of the City Council of the City of Tampa. You also advise that the City Council has been requested by a business in the general vicinity of 22nd and Long Street to consider an amendmentto the City's Comprehensive Plan. You advise that this amendment is opposed by a second company in the area and some neighborhood property owners. You advise that property owned by the second company was not involved in the amendment. However, if the plan amendment were approved, it theoretically would increase the available density of adjoining properties and, thereby, "theoretically, increase the potential value of the [second company's] property."

You advise that you also operate a retail coffee business and buy wholesale coffee supplies from the second company. You advise that neither you nor anyone to whom you are related have any ownership interest in the second company. You also advise that the second company has no ownership interest in your company and that none of the corporate officers of the second company are corporate officers of your company.

You advise that the second company is a wholesaler manufacturer and sells its products to your company. You advise that the second company charges you based on market prices for its products and services and factored into its market price is overhead, which includes labor cost, costs, energy, accounting, and profit. You also advise that the second company handles delivery of your retail sales for 10 percent of all of your company's sales. You also pay the second company an additional 15 percent to answer your telephones and to do the accounting for your company's customers.

You are concerned that your business relationship with the second company, which opposes the Comprehensive Plan Amendment, may require you to abstain from voting, although you advise that neither you nor your company would be affected directly by the plan amendment and neither you nor your company would be affected by any impact that the amendment would have on the second company.

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; 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. [Section 112.3143(3)(a), Florida Statutes (1991).]

This provision prohibits a local public official from voting on a matter 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 special gain of the parent organization or subsidiary of a corporate principal by which he is retained, or which he knows would inure to the special private gain of his relative or business associate. This section was amended by Chapter 91-85, Laws of Florida, effective October 1, 1991, to include the parent organization or subsidiary of a corporate principal, relative, and business associate.

"Business associate is defined at Section 112.312(4), Florida Statues, as follows:

'Business associate' means any person or entity engaged in or carrying on a business enterprise with a public officer, public employee, or candidate as a partner, joint venturer, corporate shareholder where the shares of such corporation are not listed on any national or regional stock exchange, or coowner of property.

Because the second company charges you market prices for its products and services, and otherwise appears to deal with your company at "arms length," the second company does not appear to us to fit the definition of "business associate"; therefore, the issue left for our determination is whether you would be voting on a measure that would inure to your special private gain.

We noted in CEO 76-209 and most recently in CEO 91-48 that this issue 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 the party's relationship to you. Whether the measure inures to your special private gain or to the special private gain of your principal is a question of whether the interest you hold is such that you would stand to gain or lose as a direct result of the outcome of the Council's decision. Because neither you nor your company would be affected in any way by the passage of the plan amendment or its failure to pass and, therefore, it would not inure to either your special gain or to the special gain of your company, we are of the opinion that you are not required to abstain from voting on the amendment.

Accordingly, we find that a voting conflict of interest would not be created by your voting on a comprehensive plan amendment where the plan amendment is opposed by a company that provides both services and wholesale products to your company.