CEO 97-4 -- January 23, 1997

VOTING CONFLICT OF INTEREST

AIRPORT AUTHORITY MEMBER REPRESENTING INDIVIDUAL WHOSE

CORPORATION OPERATES AIRCRAFT THAT MAY BECOME REGULATED

BY AIRPORT AUTHORITY

To: Mr. Richard D. Yovanovich, Attorney (Naples)

SUMMARY:

The voting conflict laws [Sections 112.3143(3) and 112.3143(4), Florida Statutes] would not require an airport authority member to abstain from participating in and voting on a proposed ordinance that would ban the operation of a certain type of aircraft at the airport operated by the authority. Although a client of the authority member is the sole owner of a corporation which operates a small fleet of aircraft, including the type affected by the ban, and although there are only about 100 of the type of aircraft registered in the United States, there is no indication that the proposed ban will have a tangible and definite economic impact on the corporation or its owner, the authority member's principal.

QUESTION:

Does a member of an airport authority have a voting conflict under Sections 112.3143(3) and 112.3143(4), Florida Statutes, regarding a proposed rule prohibiting the operation of certain aircraft at the airport where, as an attorney, he represents an individual whose corporation operates aircraft of the type subject to the ban?

Based upon the circumstances presented, your question is answered in the negative.

In your letter of inquiry and additional written information provided to our staff, we are advised that you seek this opinion on behalf of Louis X. Amato, who serves as a member of the City of Naples Airport Authority. You relate that the Authority member in question is an attorney who, in his private law practice, represents an individual and his wife in a dispute against a developer concerning the construction of a home. This client is also the sole stockholder in a corporation operating an air ambulance business out of Ft. Lauderdale. However, none of the legal work performed by the Authority member for this client relates to the client's business, you advise.

You further advise that the Authority is considering the adoption of a rule prohibiting all Stage I jet aircraft from operating at the Naples Municipal Airport. There are probably fewer than one hundred Stage I jet aircraft registered in the United States, you advise. Further, you relate that the corporation owned by the Authority member's client operates a fleet of eight aircraft, three of which are Stage I jets. Although other planes in the corporation's fleet could continue to fly into the Airport if the ban were to be imposed, the corporation's Stage I jets would have to utilize other airports in the vicinity that are less convenient than the Airport.

The voting conflict laws state in pertinent part:

(3)(a) No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(3); or which he or she 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 the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her 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.

(4) No appointed public officer shall participate in any matter which would inure to the officer's special private gain or loss; which the officer knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained; or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer, without first disclosing the nature of his or her interest in the matter. [Section 112.3143, Florida Statutes (1995).]

Section 112.3143(3) prohibits the Airport Authority member from voting on a matter which inures to his special private gain or loss, or to the special private gain or loss of a "principal" by whom he is retained, or to the special private gain or loss of a relative or business associate. It also contains an affirmative duty of disclosure so that interested parties and the public will understand why he is abstaining from voting. Additionally, Section 112.3143(4) prohibits the Authority member, as an appointed public officer, from "participating" in any matter which would inure to his special private gain or loss or to the special private gain or loss of his principal without first disclosing his conflict prior to his participation in the matter. For purposes of this provision, the term "participation" is defined in Section 112.3143(4)(c) to mean "any attempt to influence the decision by oral or written communication whether made by the officer or at his direction."

We previously have opined that a client who retains an attorney/public officer to represent him is a "principal" by whom the public officer is retained. See CEO 86-37. Thus, under the circumstances presented, we must determine whether the Authority member's vote on the proposed rule inures to the special private gain or loss of his client. In CEO 91-20, Question 3, we examined whether a voting conflict of interest was created where a city commissioner/attorney represented individuals who were officers, directors, or employees of corporations that appeared before the City Commission. There, we found no conflict to exist, although we acknowledged that we could conceive of situations where the interests of individual clients were so intertwined with those of the corporation--such as where the officer is the sole owner of a corporation--that a measure voted upon which inured to the gain of the corporation would also inure to the gain of the individual.

The Authority member's situation is the extension of that described in CEO 91-20. Even though the corporation operating the air ambulance service is not the Authority member's principal, if the proposed ban inures to the special private gain or loss of his client who is the sole owner of the corporation, then the Authority member would have a voting conflict under Section 112.3143, Florida Statutes.

However, based upon the information submitted, we cannot conclude that the proposed ban inures to the special private gain or loss of the corporation. While we recognize that the size of the class of Stage I aircraft is small--fewer than 100 registered aircraft in the United States--it is not apparent from the information submitted how banning their operation at the Airport would have a negative economic effect on the corporation. At most, the effect appears to be an inconvenience, since the corporation's Stage I planes could land at neighboring airports and since the corporation has other planes in its fleet that could still utilize the Airport. In other opinions, we have advised that where the effect of the vote was remote and speculative and did not involve clearly identified, tangible economic interests, no voting conflict was created. Thus, because we do not have any information which would suggest that the proposed ban would affect the financial interests of the Authority member's client or of the corporation he owns, we are of the view that the Authority member would not be required to abstain from voting on or participating in matters concerning the proposed ban on Stage I jets.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on January 23, 1997, and RENDERED this 28th day of January, 1997.

__________________________

Mary Alice Phelan

Chair