CEO 88-3 -- February 4, 1988

VOTING CONFLICT OF INTEREST

REQUIREMENT OF LOCAL OFFICER TO DISCLOSE

VOTING CONFLICT WHEN NOT ATTENDING MEETING

OR PORTION OF MEETING AT WHICH VOTE OCCURRED

To: (Name withheld at the person's request.)

SUMMARY:

Under Section 112.3143(3), Florida Statutes, a local official who does not attend a meeting at which he would be presented with a voting conflict of interest is not required to announce publicly the nature of the conflict or to file a memorandum of voting conflict within 15 days of the meeting. However, an official who temporarily absents himself from the portion of a meeting at which he would be presented with a voting conflict of interest still is required to announce the basis of the conflict and to file a memorandum of voting conflict as provided in Section 112.3143(3), Florida Statutes.

QUESTION:

Are you, a member of a regional planning council, required by Section 112.3143, Florida Statutes, to disclose a voting conflict of interest on a matter involving a client of your law practice if you do not attend the meeting at which the vote will occur or if you do not attend the portion of the meeting at which the project will be considered?

In your letter of inquiry you advise that you serve as a member of the East Central Florida Regional Planning Council, which provides recommendations and determinations with regard to developments of regional impact, among other matters. You advise that these recommendations are formulated after a public hearing and a vote by the members of the Council.

You further advise that you anticipate that the Council will review a proposed development of regional impact on which you have worked as an attorney in the past. You anticipate that you may be requested by the developer of the project to consult with him in the future.

You advise that it is possible that the project will be the only item on the Council's public hearing agenda on the day on which it is heard. If that is the case, you more likely than not will refrain from attending the meeting, since there would be little purpose to your attending the meeting because of your inability to vote on the project. Under such circumstances, you question whether you would be required to file a voting conflict of interest memorandum.

Alternatively, you advise that two or more projects may be scheduled for public hearing on the day on which this particular project will be considered. In that case, you would attend the meeting. One course of action would be for you to attend all public hearings held at that meeting and to vote on all items on the agenda, other than this particular project. You question whether you would be required to file a voting conflict of interest memorandum if you absented yourself from the proceeding during the time of the public hearing and vote on this project.

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 or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. 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. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one-acre, one-vote basis is not prohibited from voting. [Section 112.3143(3), Florida Statutes (1987).]

This provision prohibits a local public officer from voting on a measure which would inure to the special gain of a principal by whom he is retained and requires the officer to announce publicly at the meeting the nature of his interest in the matter from which he is abstaining and to file a memorandum of voting conflict within 15 days of the vote.

In our view, this provision is applicable to members of a regional planning council, as the term "public officer" is defined to include persons serving on advisory bodies. See Section 112.3143(1), Florida Statutes. In previous opinions we have applied this provision regarding "local" public officers to commissioners of an inland navigation district (CEO 85-19), commissioners of an erosion prevention district (CEO 87-14), trustees of a community college (CEO 87-21), and supervisors of a community development district (CEO 87-66). We are of the opinion that the term "local public officer" should be interpreted by analogy with the definitions of "local officer" and "state officer" provided in the financial disclosure law, Section 112.3145, Florida Statutes. In that provision, the term "state officer" includes appointed members of boards having statewide jurisdiction, and the term "local officer" includes appointed members of boards of political subdivisions of the State. See Section 112.3145(1)(a)2 and (c)2, Florida Statutes.

Section 112.3143(3) requires a local official not only to abstain from voting, but also to make certain disclosures. Therefore, the failure to make a disclosure when required to do so would violate the law just as would the failure to abstain. The statute contains not only a prohibition upon a public official, but also requires the affirmative duty of disclosure so that interested parties and the public will understand why the official is abstaining from voting.

This provision was placed into the law through the enactment of Chapter 84-357, Laws of Florida (House Bill 10, 1984 General Session). Our staff has reviewed the available documents and tape recordings which memorialize the legislative history of that bill, and discovered no indication that the 1984 Legislature considered how Section 112.3143(3) should affect a public official who was absent from an entire meeting at which he would have been presented with a voting conflict of interest.

During the January 11, 1984, House Ethics and Elections Committee meeting at which the bill was considered, however, Representative McEwan inquired whether it was possible that the bill would give an official an easy way to "walk." Representative Tom Brown, the bill's sponsor, answered:

That's the reason we included the filing of the form, so that you have a verification of that conflict. Now, I would suspect that such a person who filed a conflict when no conflict indeed existed and used it simply as an excuse to walk would be in violation of the law.

Nothing in the legislative histories of Chapters 84-318 and 86-148, Laws of Florida, which contain the only other amendments made to Section 112.3143, Florida Statutes, since its enactment in 1975, addressed the application of the statute when an official is absent from all or a part of a meeting.

When an official is absent from an entire meeting at which he would have been presented with a voting conflict of interest under this provision, he obviously has satisfied the requirement of abstaining from voting. When the official is absent from the entire meeting, it clearly would be impossible for him to publicly state to the assembly the nature of his interest in the matter. Finally, we do not read the statute as imposing upon an official the duty of filing a memorandum of voting conflict with respect to a matter which arose at a meeting which he did not attend at all. We recognize that public officials will have legitimate reasons for not attending meetings, such as illness or public or private commitments which they feel take precedence. Where the Legislature has not provided clearly that disclosure would be required under these circumstances, and where the question apparently did not arise during the legislative process, we are reluctant to impose on an official the affirmative duty of having to go back and review matters which occurred at the meeting he did not attend in order to determine whether he is required to file a memorandum of voting conflict for that meeting.

However, these considerations are not present if a public official simply absents himself from the portion of a meeting at which he would be presented with a voting conflict of interest. In that case, the official would be present at the meeting and could announce the nature of his interest. Further, he would be fully aware that a measure was being considered with respect to which he is required to file a memorandum of voting conflict. We view Representative Brown's statement as indicating that his bill was intended to require disclosure of voting conflicts of interest, even though the official may not be present at part of the meeting. In the absence of any additional guide to legislative intent, we conclude that requiring an official to announce the nature of his conflicting interest before leaving the meeting fulfills one of the goals of Representative Brown's bill -- that of informing the public of an official's conflict in the most direct and effective manner possible at the meeting.

In reaching these conclusions, we have considered Section 286.012, Florida Statutes, which provides:

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.

This statute clearly applies only to an official who is "present at any meeting" of his governmental agency. In AGO 074‑289, the Attorney General advised that this provision sets forth a clear statutory duty which "may not be avoided by the 'temporary' absence of a member during the vote on a particular matter which comes before the body of which he is a member during a meeting at which he is present." As long as a member in attendance at a meeting is sufficiently nearby that he can be reached or called, even though he physically may have left the room temporarily, the Attorney General concluded that the member must be considered as being present for the purposes of this statute. We are in full agreement with the position of the Attorney General in this matter and do not intend to condone a public official's absence from a meeting in order to avoid having to disclose a conflict of interest.

Accordingly, we find that as a member of a regional planning council you are not required to follow the disclosure provisions of Section 112.3143(3), Florida Statutes, if you are absent from the entire meeting at which you would be presented with a voting conflict of interest. However, we conclude that you would be required to publicly announce the basis of a conflict of interest and to file a memorandum of voting conflict within 15 days after the vote occurs even if you were to attend the meeting but to absent yourself temporarily from the portion of the meeting during which you would be presented with a voting conflict of interest.