CEO 95-29 -- October 13, 1995

VOTING CONFLICT OF INTEREST

SCHOOL BOARD MEMBER VOTING ON MATTERS

AFFECTING FORMER EMPLOYER

To: Ann-Margaret Emery, Esquire, Chiumento, Katz & Guntharp, P. A. (Palm Coast)

SUMMARY:

The voting conflicts law [Section 112.3143(3)(a), Florida Statutes] does not require a school board member to abstain from voting on measures that would inure to the special private gain or loss of a corporation which formerly employed him. The voting conflicts law requires that the principal/agent relationship exist at the time of the vote on a measure, the receipt of post-employment benefits does not constitute employment or a principal/agent relationship, and the member has no duty or authority to act in behalf of the corporation. CEO's 77-183 and 78-27 are referenced.

QUESTION:

Is a member of a district school board subject to the requirements of the voting conflicts law [Section 112.3143(3)(a), Florida Statutes] regarding measures which would inure to the special private gain or loss of a corporation from which he has retired, but from which he receives severance and retirement benefits?

Your question is answered in the negative.

By your letter of inquiry and additional written information supplied to our staff, we are advised that Dennis Fitzgerald serves as a member of the Flagler County School Board. We are advised further that until his recent retirement, he was employed by a corporation which is the largest land developer in the County and, therefore, that while employed he refrained from voting on any matter which might have inured to the special private gain of his employer. In addition, we are advised that although the member is no longer employed by the corporation, he nevertheless will receive severance benefits from it until March 1996 and retirement benefits after March 1996, under severance and retirement packages that are not subject to renegotiation.

Also, we are advised that the member is not obligated to perform duties for the corporation and is not authorized to bind or act for the corporation, notwithstanding his receipt of or entitlement to severance and retirement benefits. In essence, we are advised that the member's relationship with the corporation is merely that of a recipient of fixed and earned benefits who has no duty or authority to work for, or to act in behalf of, the corporation.

Further, you relate to us that you can conceive of no measures likely to come before the School Board which could affect the corporation such that the member's severance and retirement benefits would be affected. We also are advised that the member is not a "business associate" of the corporation within the meaning of Section 112.312(4), Florida Statutes.

The voting conflicts law provides in relevant part:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which would inure to his special private gain or loss; which he knows would inure to the special private gain or loss 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 or loss 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.]

This provision requires abstention from voting, public disclosure of conflict, and the filing of a memorandum (CE Form 8B), regarding measures which would inure to the special private gain or loss of a local public officer, or to the special private gain or loss of certain other persons or entities, including "any principal by whom [the local public officer] is retained."

While it is clear that the corporation was the member's "principal" during his employment with it (see, for example, CEO 78-27), it also has been established that the statute speaks in the present tense, thus requiring that the retention by a principal exist at the time of a vote on a measure affecting the principal. See, for example, CEO 77-183. In addition, because the member is no longer employed by and does not possess authority to act in behalf of the corporation, he would not be its agent or it his principal, notwithstanding the fact that he is drawing severance benefits from the corporation and shortly will be receiving retirement benefits from it.

Accordingly, we find that Section 112.3143(3)(a) does not require the member's abstention, disclosure, and filing of a memorandum regarding measures which would inure to the special private gain or loss of his former employer.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 12, 1995, and RENDERED this 13th day of October, 1995.

__________________________

William J. Rish

Chairman