CEO 77-119 -- July 21, 1977

CONFLICT OF INTEREST

MEMBER OF GOVERNING BOARD OF WATER MANAGEMENT DISTRICT OBJECTING TO OR PARTICIPATING IN CONSIDERATION OF CONSUMPTIVE USE PERMIT APPLICATION WHICH WOULD ADVERSELY AFFECT WATER LEVEL ON HIS PERSONAL PROPERTY

To: L. M. Blain, Attorney for Southwest Florida Water Management District, Tampa

Prepared by: Bonnie Johnson

SUMMARY:

No provision of the Code of Ethics for Public Officers and Employees prohibits one who is a member of the governing board of a water management district from privately filing written objections to a proposed consumptive use permit for the withdrawal of water from a well field located near his property where such withdrawal has the potential of adversely affecting the water level on surrounding property, including his own. At the time the governing board considers the application, however, the subject board member is faced with a voting conflict pursuant to s. 112.3143, F. S. 1975, inasmuch as the matter is of private interest to him and potentially would inure to his special private gain. Should he exercise his right to vote under that section, he is required to file a Memorandum of Voting Conflict within 15 days. Alternatively, he may choose to abstain from voting under the terms of s. 286.012.

QUESTIONS:

1. Would a conflict of interest be created were a member of the governing board of a water management district to file written objections to a proposed consumptive use permit for the withdrawal of water from a well field located near property owned by the board member, where such withdrawal would, in the board member's opinion, adversely affect surrounding property including his own?

2. What is the standard of duty for a member of the governing board of a water management district relative to participation in and voting upon the issuance of a consumptive use permit, where said board member's personal property stands to be adversely affected were such permit to be granted?

Question 1 is answered in the negative.

You advise in your letter of inquiry that Mr. Bexley and members of his immediate family own property upon which he engages in farming and cattle raising as his primary source of income. A well field of a public water supply system is located near the Bexley property and, pursuant to s. 373.116, F. S., and rules numbered 16J-2.07 and 16J- 2.08, F.A.C., Mr. Bexley has received notice that an application has been made with the Southwest Florida Water Management District (SWFWMD) by the public water supply system for a consumptive use permit in accordance with the provisions of part II, Ch. 373, F. S., and Ch. 16J-2, F.A.C.

Mr. Bexley is of the opinion that the withdrawal of water from this well field will adversely affect the water level on surrounding property, including his own, and believes that such permit should not be granted by SWFWMD without a public hearing as provided for in s. 373.229, F. S. As a member of the governing board of SWFWMD, which board regulates the issuance of consumptive use permits, Mr. Bexley questions whether a prohibited conflict of interest would be created were he to file such objections while remaining on the SWFWMD board.

No provision of the Code of Ethics for Public Officers and Employees addresses a public officer's appearing, in his own behalf, before any agency of government, including his own agency. Although s. 112.3145(4) requires quarterly disclosure of a public officer's clients represented for compensation before agencies at his level of government, pro bono representations and representations in one's own behalf are not even required to be disclosed. Accordingly, we find no conflict of interest to be created were the subject SWFWMD board member to file with that board written objections to the granting of a consumptive use permit, the issuance of which would adversely affect his personal interests.

Once the SWFWMD governing board begins consideration of the application, however, certain standards of duty attach to Mr. Bexley as a member of the board. This leads directly into your second question.

Relative to voting conflicts of interest, the Code of Ethics provides as follows:

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.]

Accordingly, no public officer is denied the right to vote on any matter. In our opinion, this provision contemplates that, even where an official may have a private interest in the issue, he may, in his own discretion, be able to maintain impartiality and cast his vote in the public interest. See CEO 76-62. Therefore, we find that the subject SWFWMD board member may participate in discussion of the proposed permit and may exercise his right to vote on such permit, in his own discretion.

However, inasmuch as the matter being considered potentially will inure to Mr. Bexley's private gain, i.e., if the permit is denied, a voting conflict would be created under the above-quoted s. 112.3143. Should he choose to participate in discussion or vote on the matter, he therefore would be required to disclose such conflict via the filing of a Memorandum of Voting Conflict, CE Form 4, with the person recording the minutes of the meeting at which the vote occurred. Alternatively, he may recuse himself from participation and voting pursuant to s. 286.012, F. S., which provides as follows:

Voting requirement at meetings of governmental bodies. -- No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act, and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is, or appears to be, a possible conflict of interest under the provisions of s. 112.311, s. 112.313, or s. 112.3143. In such cases said member shall comply with the disclosure requirements of s. 112.3143.

Reading this statute in conjunction with s. 112.3143, quoted above, no public officer may abstain from voting unless he has or appears to have a conflict of interest pursuant to the enumerated provisions of the Code of Ethics. Where the public officer perceives a conflict, he looks to s. 112.3143, which offers two alternatives: He may exercise his right to vote in spite of the conflict, whereupon he is required to file a Memorandum of Voting Conflict (CE Form 4), or he may abstain from voting on the matter.