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HomeMy WebLinkAbout11-08-2006 Abstention from VotingRECEIVED BROWN, GARGANESE, WEISS & UAGRESTA d WINTER SPf3tt:< OFFICE OF THE CITY CL.EkK Attorneys at Lazy Debra S. Babb-Nutcher° Joseph E. Blitch Usher L. Brown Suzanne D'Agresta° Anthony A. Garganese° J.W. Taylor Jeffrey S. Weiss *Board Certified Civil Trial Lawyer "Board Certified City, County & Local Government Law Offices in Orlando, Kissimmee, Cocoa, Ft. Lauderdale & Tampa November 8, 2006 Andrea Lorenzo-Luaces, City Clerk City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Re: Abstention from Voting (City of Winter Springs 1193) Dear Andrea: Michael O'Brien Colgan Scott J. Domstein Mitchell B. Haller Katherine W. Latorre Amy J. Pitsch Erin J. O'Leary Catherine D. Reischmann William E. Reischmann, Jr. Of Counsel This letter is provided in response to your email correspondence of November 2, 2006 in which you pose several questions regarding the authority of elected and appointed public officers to abstain from voting on official matters, as well as the proper procedures to follow should the member abstain. Abstention / Voting Conflicts Florida law imposes upon all members of a municipal board the duty to vote on all official matters before them. § 286.012, Fla. Stat. Abstaining from a vote is prohibited unless there is, or appears to be, a possible conflict of interest. Id. Section 112.3143(3)(a), Florida Statutes, which addresses voting conflicts, prohibits municipal officers from voting in an official capacity upon any measure which would inure to his or her special private gain or loss or to the special private gain or loss of a corporate principal by which he or she is retained, to the parent organization or subsidiary of a corporate principle by which he or she is retained, or to the special private gain or loss of a relative or business associate of the public officer. A "special private gain" as described by the voting conflicts statute, "almost always (if not always) refers to a financial interest of the public officer that is directly enhanced by the vote in question." George v. City of Cocoa, 78 F.3d 494, 496 (11th Cir. 1996). Further, the possibility of 225 East Robinson Street, Suite 660 • P.O. Box 2873 •Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa (866) 425-9566 • Ft. Lauderdale (954) 670-1979 Website: www.orlandolaw.net • Email: firm@orlandolaw.net Andrea Lorenzo-Luaces, City Clerk November 8, 2006 Page 2 financial or economic gain to the public officer must be direct and immediate, not remote and speculative, to constitute a prohibited voting conflict. Id. at 498. Thus, in order for a public officer to abstain from voting on any official matter during a meeting at which that officer is present, a voting conflict, as explained herein, must exist. I am hard- pressed to think of any circumstance under which a public officer would have a valid voting conflict with regard to the approval of meeting minutes. As such, all public officers present during a meeting at which minutes are being approved should cast a vote either for or against approving such minutes. Even if a public officer was absent at the meeting for which the minutes were prepared, that officer must still cast his or her vote either for or against approving those minutes. Declaring Voting Conflict Should a valid voting conflict exist, all public officers are required, prior to the vote being taken, to publicly state to the assembly the nature of the officer's interest in the matter being voted upon 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 board's recording secretary, who shall incorporate the memorandum in the minutes of the meeting. § 112.3143(3)(a), Fla. Stat. The Florida Commission on Ethics Form 8B serves as the memorandum local public officers must complete and submit as part of the meeting's recorded minutes. Appointed public officers have an additional duty with regard to declaring voting conflicts. Appointed public officers are prohibited from participating in any matter for which a voting conflict exists without first disclosing the nature of his or her interest in the matter. See § 112.3143(4), Fla. Stat. "Participate" means any attempt to influence the decision by oral or written communication, whether made by the officer or at the officer's direction. § 112.3143(4)(c), Fla. Stat. The appointed public officer is required to disclose the nature of his or her conflict in a written memorandum filed with the board's recording secretary prior to the meeting in which consideration of the matter will take place. § 112.3143(4)(a), Fla. Stat. Form 8B is also used for this purpose. The memorandum shall be incorporated into the minutes of the meeting, becomes public record upon filing, shall be immediately provided to the other members of the agency and shall be read publicly at the next meeting held subsequent to the filing of the memorandum. Id. So while appointed public officers are permitted to participate with regard to a matter with which they have a voting conflict, they must first disclosure such conflict prior to participation any can not vote. In contrast, elected public officers are free to participate in a matter for which they have a voting conflict prior to disclosing such conflict. The same is true even if an appointed public officer does not realize that a voting conflict exists prior to the meeting at which the issue is to be addressed. In such case, the disclosure is required to be made orally at the meeting when it becomes known that a conflict exists. § 112.3143(4)(b), Fla. Stat. A written memorandum disclosing the nature of the conflict shall then be filed within 15 days after the oral disclosure with the recording secretary for the board. Id. The memorandum shall be incorporated into the minutes of the meeting at which the oral disclosure was Andrea Lorenzo-Luaces, City Clerk November 8, 2006 Page 3 made, becomes public record upon filing, shall be immediately provided to the other members of the agency and shall be read publicly at the next meeting held subsequent to the filing of the written memorandum. Id. Please note that a written memorandum evidencing a public officer's voting conflict is required to be filed with the recording secretary as set forth above even if the public officer leaves the room during the applicable discussion or during the actual vote. I trust this letter addresses the issues raised in your email correspondence. If, at anytime, you desire to discuss any of these issues further, please don't hesitate to contact our office. Very truly yours, pvzxfi��- Kate Latorre Assistant City Attorney