CEO 77-142 -- August 24, 1977

VOTING CONFLICT OF INTEREST

COMMISSION MEMBER VOTING ON PURCHASE OF LAND FROM CORPORATION, AN OWNER AND OFFICER OF WHICH IS ALSO AN OFFICER OF A BANK OF WHICH THE COMMISSIONER IS A DIRECTOR AND OWNER

To: G. Kenneth Gilleland, Attorney, Game and Fresh Water Fish Commission, Tallahassee

Prepared by: Phil Claypool

SUMMARY:

No prohibited conflict of interest is created where a member of the Game and Fresh Water Fish Commission is a stockholder and member of the board of directors of a bank, the president and chairman of the board of directors of which is also an owner of a family-held corporation which owns a tract of land the commission contemplates purchasing for a wildlife management area. Although s. 112.313(7)(a), F. S., prohibits a public officer from having any employment or contractual relationship with a business entity which is doing business with his agency, it is not the bank which would be doing business with the commission but, rather, the corporation, in which the commissioner holds no interest. Nor, pursuant to s. 112.3143, is the commissioner prohibited from voting on the land purchase. Under the provisions of s. 286.012, however, he may abstain from voting when he has or even appears to have a conflict of interest under the Code of Ethics. Where an officer chooses to vote upon a measure in which he has a personal, private, or professional interest which inures to his special private gain or the special gain of a principal by whom he is retained, s. 112.3143 requires that he disclose the nature of his interest in a written memorandum. In the instant case, however, even if he could be deemed to have a personal interest in the matter by virtue of his relationship with the vendor of the land, the sale of the land will not inure to his special private gain or to the special gain of the bank of which both he and the vendor are directors. Accordingly, the subject commissioner may choose to vote upon the measure, in which case he need not file a Memorandum of Voting Conflict, or he may elect to abstain from voting on the measure if he feels he cannot remain independent and impartial.

QUESTIONS:

1. Would a prohibited conflict of interest exist were the Game and Fresh Water Fish Commission to purchase land from a corporation where an owner of the corporation is the president and chairman of the board of a bank in which a commission member is a shareholder and a director?

2. Would a voting conflict of interest exist were a member of the Game and Fresh Water Fish Commission to participate in the discussion of and vote on the purchase of land from a corporation where an owner of the corporation is the president and chairman of the board of a bank in which the commission member is a shareholder and a director?

Question 1 is answered in the negative.

In your letter of inquiry you advise that Mr. Randolph Thomas, a member of the Game and Fresh Water Fish Commission, is a stockholder and member of the Board of Directors of the Green Cove Springs Bank. You also advise that the president and chairman of the board of directors of that bank is also an owner of a family-held corporation which presently owns a tract of land which the commission is considering purchasing as a wildlife management area. In addition, you state that neither the bank nor the subject commissioner has a beneficial interest in the property.

The Code of Ethics for Public Officers and Employees provides in relevant part:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), F. S. 1975.]

This provision prohibits a public officer from having any employment or contractual relationship with a business entity which is doing business with his agency and from having such a relationship that would impede the full and faithful discharge of his duties.

In the situation you have presented, the subject commissioner's agency is the Game and Fresh Water Fish Commission. Should the commission purchase the land from the corporation which presently owns it, that corporation would be doing business with the commissioner's agency. From the facts you have presented, it is clear that the subject commissioner does not have an employment or contractual relationship with that corporation. Moreover, it is clear that he does not have an employment or contractual relationship with his fellow director of the bank, either by virtue of his serving on the board or by virtue of his ownership of stock in the bank. Furthermore, under these circumstances we find that the subject commissioner's relationship with the bank would not impede the full and faithful discharge of his duties. As you have advised, the bank has no beneficial interest in the property.

Accordingly, we find that no prohibited conflict of interest would exist were the Game and Fresh Water Fish Commission to purchase land from a corporation where an owner of the corporation is the president and chairman of the board of directors of a bank in which the subject commission member is a shareholder and a director.

Question 2 is answered in the negative.

The Code of Ethics provides in relevant part:

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.]

Thus, a public officer is not prohibited from voting on measures in which he has a conflict of interest. Under the provisions of s. 286.012, F. S. 1975, he may abstain when he has or even appears to have a conflict of interest under the Code of Ethics. In accordance with that provision, we have advised that an officer may abstain when he feels that, or it appears that, he cannot remain independent and impartial in relation to any official matter. See CEO's 77-56, 77-57, and 77-62.

However, should an officer vote upon a measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of a principal by whom he is retained, he must disclose the nature of his interest in a written memorandum. Here, even if we were to deem the subject commissioner's interest to be a personal one by virtue of his relationship with the vendor of the land, the sale of the land will not inure to the commissioner's special private gain or to the special gain of the bank.

Accordingly, the subject commission member may choose to vote upon the measure, in which case he need not file a memorandum of voting conflict, or he may choose to abstain from voting on the measure if he feels that he cannot remain independent and impartial.