CEO 84-50 -- June 7, 1984

VOTING CONFLICT OF INTEREST; CONFLICT OF INTEREST

PLANNING COUNCIL MEMBER VOTING ON MATTER AFFECTING PROPERTY OWNED BY ORGANIZATION OF WHICH HE IS DIRECTOR; SCHOOL BOARD MEMBER SELLING PRODUCT TO SCHOOL SYSTEM EMPLOYEES

To: Mr. John R. Espey, Chairman, Pinellas County School Board

SUMMARY:

No voting conflict of interest was created under Section 112.3143, Florida Statutes, where a county planning council member voted to approve a land use amendment regarding property owned by a nonprofit organization, where he serves without compensation on the board of directors of the organization. CEO's 83-93 and 83-70 are referenced. Under the rationale of CEO's 75-127 and 80-68, a school board member may not solicit sales of a product from school district employees and should not work with school related organizations to sell the product. However, a school board member may sell to employees of the school district who approach him, without solicitation on his part, to purchase the product from him.

QUESTION 1:

Was a voting conflict of interest created where you, a county planning council member, voted to approve a land use amendment regarding property owned by a nonprofit organization, where you serve without compensation on the board of directors of the organization?

This question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that you serve as a member of the Pinellas County Planning Council. As a member of that Council, you voted to approve a land use amendment on property owned by the Y.M.C.A. You serve in a volunteer capacity without compensation as a member of the Board of Directors of the Y.M.C.A. You did not stand to gain personally from the amendment, and, although you are a realtor, you had no interest as a realtor in the property. Nevertheless, you filed a memorandum of voting conflict on the day of the vote.

The Code of Ethics for Public Officers and Employees 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, Florida Statutes (1983).]

This provision specifically permits a public officer to vote on any matter, but requires the filing of a memorandum of voting conflict if the official votes on a matter which presents him with a conflict of interest under the terms of the provision.

We previously have advised that a public officer does not have a voting conflict of interest under this provision when voting on matters affecting a nonprofit organization which he serves as an officer or director without compensation, as the official is not "retained" by the organization. See CEO 83-93 and CEO 83-70. Nor did the land use amendment inure to your special private gain.

Accordingly, we find that you were not required by Section 112.3143, Florida Statutes, to file a memorandum of voting conflict following your vote on the land use amendment.

QUESTION 2:

Would a prohibited conflict of interest be created were you, a school board member, to sell a weight loss product as a distributor to employees of the school district?

In your letter of inquiry and in a telephone conversation with our staff, you have advised that the School Board requires the School Superintendent to have an annual physical. In this instance, the Superintendent was reported to be healthy, but the suggestion was made that he needed to lose weight. As you also needed to lose weight, you proposed a contest between the two of you at the School Board's December meeting, with the contest to begin in January after the holidays. You advised that both of you were contacted by representatives of various weight loss programs. You became interested in one product and became an authorized distributor because you would receive a discount on your purchases. During the course of the contest, you did not disclose what product you were using to lose weight, and you advise that you have not sold the product to any employee of the School District. You question whether your actions constituted a misuse of your public position.

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

MISUSE OF PUBLIC POSITION. -- No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes (1983).]

For purposes of this provision, the term "corruptly" is defined to mean

done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(7), Florida Statutes (1983).]

We have observed in previous opinions, such as CEO 77-129 and CEO 82-82, that this statute requires a determination of intent which is extremely difficult to make in rendering an advisory opinion, since intent is to be determined by an examination of all relevant circumstances. However, as you have advised that you have not made any sales to employees of the School District, it is clear that your actions could not be construed as a misuse of your position to make sales to subordinates within the school system.

You also question whether the Code of Ethics prohibits you from selling this product to an employee of the School District on a voluntary basis. Our response to this question is guided by our determinations in previous opinions CEO 75-127 and CEO 80-68. In CEO 75-127, we concluded that a school board member should not solicit the sale of insurance to school personnel at their residences during their nonduty hours. In CEO 80-68, we advised that a school board member should not act as an insurance broker to administer an insurance program offered privately to school district employees through a teachers' union and an association of administrative personnel. For the reasons expressed in these opinions, we conclude that you may not solicit sales of this product from school district employees and that you should not work with school related organizations to sell the product.

However, we do not believe that the Code of Ethics absolutely prohibits a school board member from making any type of sale to an employee of the school district. In CEO 75-127 we found a significant distinction between a retailer/customer relationship where a prospective buyer comes to the seller, without solicitation by the seller, and the relationship which results from direct solicitation by the seller, noting that such solicitations of persons over whom a public officer exercises substantial authority would conflict with his public duties.

Accordingly, we find that you may sell the weight loss product to employees of the School District who approach you, without solicitation on your part, to purchase the product from you. However, you should not solicit sales from employees or work with school related organizations in selling the product.