CEO 99-7 -- June 8, 1999

 

CONFLICT OF INTEREST; VOTING CONFLICT

 

CITY COMMISSIONER CONTRACTOR OPERATING IN CITY

AND VOTING ON BUILDING INSPECTION MEASURE

 

To:      Joseph P. Mawhinney, Lakeland City Attorney

 

SUMMARY:

 

No prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, where a city commissioner operates as a building contractor within the city.  The city commission does not regulate contractors, there is no indication that the commissioner holds employment or a contractual relationship with a business entity that is doing business with the city commission, and no frequently recurring conflict or impediment to the full and faithful discharge of public duty is present.

 

Further, the voting conflicts law contained in Section 112.3143(3)(a), Florida Statutes, would not be violated were the commissioner to vote on a measure whereby building inspections would be conducted using multi-trade inspectors.  Any gain or loss from the measure to contractors, including the commissioner, would be remote and speculative and would not be Aspecial.@  CEOs 86-62, 90-71, 94-1, and 94-13 are referenced.

 

QUESTION 1:

 

Does a prohibited conflict of interest exist under Section 112.313(7)(a), Florida Statutes, where a city commissioner is a building contractor operating in the city?

 

Your question is answered in the negative.

 

By your letter of inquiry and subsequent correspondence between you and our staff, we are advised that Donald R. Gifford (Amember@) serves as a member of the Lakeland City Commission and that he is a State-certified building contractor and owner of a local construction company.  In addition, you advise that the City is considering a proposed change in the manner in which it conducts inspections of permitted building activity.  Currently, you advise, the City utilizes building inspectors who are assigned inspection responsibilities for one only of four specific trade disciplines [plumbing, electrical, mechanical, and building (structural)].  Under the proposal, you advise, one inspector would be responsible for examining all work for all trade disciplines on a particular permitted job (multi-trade inspectors/inspections).

Regarding the history of the proposal, you advise that the idea of multi-trade inspections first surfaced about five years ago, when the City Manager inquired as to the possibility of changing from single-trade to multi-trade inspectors; that the City Manager=s interest in the subject was prompted by the fact that Polk County utilized a multi-trade inspection system; but that upon City staff concluding that there was some question as to the legality of multi-trade inspections the idea was laid to rest.  In addition, you advise that about two years ago representatives from the Polk County Builders= Association (Abuilders association@), upon learning that the City was considering increasing building permit fees, appeared before the City Commission and advocated that possibilities for increasing efficiency within the City=s building inspection division be investigated before any fee increase was imposed, and that in response to that appearance of the builders association before the City Commission the matter was referred to a workshop with the City Commission=s community development committee, chaired by a City Commissioner other than the member.  Continuing, you advise that multiple workshop meetings were held and various proposals were offered and discussed, resulting in better communication and understanding between local builders and the City=s building, permitting, and inspection divisions.  Further, you advise that on the initiative of the builders association the concept of multi-trade inspectors received considerable attention at the workshops and that the City Commission ultimately asked the City Manager to make a recommendation regarding a proposed change concerning multi-trade inspectors.  In response, you advise, the City Manager recommended that the single-trade inspection process not be disturbed, and you advise that the City Commission has taken no further action on the matter.  Regarding the member, you advise that he became an advocate for a change to multi-trade inspections once the proposal was made by the builders association, but that there is nothing to suggest that he initiated the proposal through the builders association or otherwise was responsible for first bringing the matter up for discussion or consideration by the City Commission, and that he is not and has never been a member, officer, or director of the builders association.[1]

Section 112.313(7)(a), Florida Statutes, provides:

 

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.--No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee . . .; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties, or that would impede the full and faithful discharge of his or her public duties.

 

The first part of this statute prohibits a public official (e.g., a city commissioner) from holding employment or a contractual relationship with a business entity which is subject to the regulation of, or which is doing business with, his public agency.  As nothing in the situation you present to us indicates that the member holds a contractual relationship with any business that is doing business with the City, we find that the Adoing business@ prong of the first part of the statute is inapplicable to your inquiry.  In addition, we find that the Asubject to the regulation@ prong of the statute is not violated in the member=s situation.  Any regulation of building contractors, their companies, or their clients occurring within the City is the responsibility of the City=s building/inspection department/division, an Aagency@ separate and distinct from the City Commission.[2]  See, for example, CEO 86-62.  Further, nothing has been presented to us that indicates that the member=s livelihood creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that it impedes the full and faithful discharge of his public duties, under the second part of Section 112.313(7)(a).

Accordingly, we find that the member=s situation is not violative of Section 112.313(7)(a), Florida Statutes.

 

QUESTION 2:

 

Would the multi-trade inspection proposal inure to the member=s special private gain or loss such that he would be required to abstain from voting on the measure and otherwise comply with Section 112.3143(3)(a), Florida Statutes?  

 

This question is answered in the negative.

 

Continuing, you advise that the multi-trade inspection proposal has been promoted primarily by local building contractors and the builders association and that the member has been an advocate for the proposal.[3]  Further, you advise that the proposal is being advanced on the basis of increasing efficiency in scheduling inspections, which may result in expediting construction schedules, but you maintain that any extrapolation that the change would result in a monetary benefit to a contractor would appear to be speculative, in that there has been no showing that the proposal would result in any direct monetary benefit or consequence to building contractors.  More specifically, you state that you have been unable to identify any tangible economic benefit which would be enjoyed by a contractor as a result of the proposed change in the manner of inspections, that the proposed change has been promoted as more efficient as to the scheduling of inspections, and that costs savings, if any, resulting from greater efficiency would inure to the ultimate benefit of the property owner and not to the benefit of the contractor.  Also, you point out that there are approximately 780 general contractors registered to do business in the City; that there are approximately 3,500 contractors of various disciplines registered to pull permits within the City; that the member=s business focuses on restoration work, as opposed to new construction; and that contractors other than the member are regarded as dominating the local construction business.

The voting conflicts law applicable to local public officers, codified at Section 112.3143(3)(a), Florida Statutes, provides:

 

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.

 

This statute would require the member=s declaration of interest, abstention from voting, and timely filing of CE Form 8B (memorandum of voting conflict) in regard to the proposal, if the proposal would inure to his special private gain or loss. 

In construing the statute, it is our view that it does not apply when, at the time of the vote on a measure, there is sufficient uncertainty of the effects of the measure that any gain or loss would be remote and speculative.  See, for example, CEO 94-1 (no voting conflict for city commissioners to vote to pay for publishing a book which contained the commissioners= photographs) and CEO 94-13 (city council members not prohibited from voting to rezone a tract of land to allow a shopping center simply because two council members had businesses located in an existing shopping center across the street).  Similarly, we find that any gain or loss to the member from multi-trade inspections would be too remote and speculative for the voting conflicts law to apply.[4]

Accordingly, we find that Section 112.3143(3)(a), Florida Statutes, does not apply to the member regarding the proposal in question.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 3, 1999 and RENDERED this 8th day of June, 1999.

 

 

 

__________________________

Charles A. Stampelos

Chair

 


[1]This historical information is contained in your May 3, 1999 letter to our staff.

2The statutory term Aagency@ does not necessarily encompass the whole of a city or other political subdivision, but is defined, with emphasis supplied, at Section 112.312(2), Florida Statutes, as follows:

'Agency' means any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.

3As an elective, rather than an appointive, public officer, the member is not subject to the Aparticipation@ provisions of Section 112.3143(4), Florida Statutes.  Section 112.3143(4) provides:

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.

  (a)  Such disclosure, indicating the nature of the conflict, shall be made in a written memorandum filed with the person responsible for recording the minutes of the meeting, prior to the meeting in which consideration of the matter will take place, and shall be incorporated into the minutes.  Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.

  (b)  In the event that disclosure has not been made prior to the meeting or that any conflict is unknown prior to the meeting, the disclosure shall be made orally at the meeting when it becomes known that a conflict exists.  A written memorandum disclosing the nature of the conflict shall then be filed within 15 days after the oral disclosure with the person responsible for recording the minutes of the meeting and shall be incorporated into the minutes of the meeting at which the oral disclosure was made.  Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.

  (c) For purposes of this subsection, the term 'participate' means any attempt to influence the decision by oral or written communication, whether made by the officer or at the officer's direction.

[4]Further, assuming arguendo that the proposal would cause gain or loss to the member, we find that the gain or loss would not be Aspecial@ within the meaning of the voting conflicts law, given the large class (approximately 780 general contractors/3,500 contractors of various disciplines registered to pull permits) of persons potentially affected.  See, for example, CEO 94-1 and CEO 90-71.