CEO 83-42 -- June 16, 1983

VOTING CONFLICT OF INTEREST

CITY MAYOR VOTING ON SETTLEMENT OF LAWSUIT BETWEEN CITY AND HIS LANDLORD

To: Ms. Jennifer Hurst, City Attorney, City of North Miami

SUMMARY:

No voting conflict of interest would be created under Section 112.3143, Florida Statutes, were a city mayor to vote on a proposed stipulation and settlement of a lawsuit between the city and his landlord, as the stipulation would not inure to his special private gain or the gain of a principal by whom he is retained. However, abstention from voting on the proposed stipulation would be permitted by Section 286.012, Florida Statutes, because of the appearance of a conflict of interest based on his contractual relationship with the landlord.

QUESTION:

Would a voting conflict of interest be created were a city mayor to vote on a proposed stipulation and settlement of a lawsuit between the city and his landlord?

This question is answered in the negative.

In your letter of inquiry you advise that the Mayor of the City of North Miami presently is a tenant in a high-rise building. You also advise that the owner of the building, his landlord, has been involved in litigation with the City to sustain building permits which the City claims to have lapsed, that would allow completion of construction of buildings seventeen stories high despite a City Charter amendment adopted after the litigation began which would limit the height of virtually all buildings to four stories and forty feet. As a result of settlement negotiations between the parties, you advise that a proposed stipulation and settlement of a lawsuit will be considered by the City Council. You question whether the Mayor may vote or abstain from voting on the proposed stipulation and settlement.

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 (1981).]

In addition, Section 286.012, Florida Statutes (1981), states:

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.

In previous opinions, we have advised that a public official faced with a voting conflict of interest under Section 112.3143 either may abstain from voting or may vote and file the required memorandum of voting conflict (Commission on Ethics Form 4). See, for example, CEO 81-79. If the official chooses to abstain from voting, no memorandum is required to be filed. See CEO's 76-62, 76-182, and 77-57.

We are of the opinion that no voting conflict of interest would be created under Section 112.3143 were the subject Mayor to vote on the proposed stipulation and settlement. It does not appear that the settlement would inure to the private gain of the Mayor. Nor does it appear that the settlement would inure to the private gain of any principal by whom he is retained. In a previous opinion, CEO 79-61, we advised that a landlord is not "retained" by a tenant. Similarly, we do not believe that a tenant is "retained" by his landlord within the contemplation of the statute.

However, as we advised in CEO 79-61, it is our opinion that the Mayor could abstain from voting on the proposed stipulation and settlement because of the appearance of a conflict of interest based on his contractual relationship with the landlord. In this regard, see also CEO 79-14.

Accordingly, we find that the Mayor may vote or abstain from voting on the proposed stipulation and settlement. If he does vote, he is not required to file a memorandum of voting conflict.