Can a member of a Florida public board abstain from a vote just to avoid the appearance of bias?

Plain-English summary

The Palm Beach County Commission on Ethics asked the Attorney General's office a question that sounds simple but trips up a lot of board members: if you are sitting at the table when a vote comes up, can you just abstain to avoid looking biased? The answer is generally no.

Florida's voting statute, section 286.012, says a member of a state, county, or municipal board who is present when an official act is taken "may not abstain from voting," and a vote must be recorded for each member present. There is one carve-out: a member may abstain when there is, or appears to be, a possible conflict of interest under the state ethics statutes (sections 112.311, 112.313, or 112.3143), in which case the member follows the disclosure rules. The office applied a familiar interpretive rule: when a statute spells out express exceptions, that is strong evidence no other exceptions were intended.

Crucially, "conflict of interest" in these statutes is about economic interests, a situation where regard for a private interest tends to lead to disregard of a public duty. It is not about general bias or prejudice. The office pointed to Izaak Walton League of America v. Monroe County, where a court held section 286.012 did not let a county commissioner be disqualified from voting on grounds of predisposition amounting to bias. The office agreed with the Florida Commission on Ethics that non-economic bias toward someone affected by a measure is not a valid basis to abstain. The office also flagged the limits of its own role: it interprets state law, not local ordinances or charter procedures, and questions about what specific facts create a "conflict of interest" go to the Florida Commission on Ethics.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion concluded (2011)

The office concluded that, under section 286.012, a member of a county board or commission who is present at a meeting must vote and may abstain only when there is or appears to be a possible conflict of interest under sections 112.311, 112.313, or 112.3143. It reasoned that the statute's express exception implies no others were intended, and that the relevant "conflict of interest" is economic, defined in section 112.312(8) as a situation in which regard for a private interest tends to lead to disregard of a public duty. Non-economic bias or prejudice does not qualify, a point the office said was consistent with Izaak Walton League of America v. Monroe County and with the Commission on Ethics' own reading that "non-economic bias or prejudice... would not constitute a basis for a valid abstention pursuant to Section 286.012."

The office noted that this rule applies even to quasi-judicial bodies. In Attorney General Opinion 88-62, it had concluded that a municipal code enforcement board member could not disqualify himself, because Chapter 162 provided no disqualification mechanism and any board rules had to conform to section 286.012. The office also marked the boundaries of its authority: it could not comment on the local ordinance procedures governing the ethics commission (that was for the county attorney), and questions about which fact patterns create a conflict of interest are for the Florida Commission on Ethics under section 112.322(3). This was an informal advisory letter, not a formal opinion.

Common questions

Q: If I am present for a vote on a Florida board, do I have to vote?
A: Per section 286.012, yes. A member present when an official decision is taken may not abstain, and a vote is recorded for each present member, unless a possible conflict of interest exists under the ethics statutes.

Q: When can I abstain?
A: Only when there is, or appears to be, a possible conflict of interest under sections 112.311, 112.313, or 112.3143. In that case you abstain and comply with the disclosure requirements of section 112.3143.

Q: Can I abstain because I feel biased or have already made up my mind?
A: No, not on that basis. The opinion, following Izaak Walton League and the Commission on Ethics, treated the conflict that justifies abstention as economic. Non-economic bias or prejudice is not a valid reason to abstain.

Q: Who decides whether my situation is a real "conflict of interest"?
A: The Florida Commission on Ethics. The Attorney General's office repeatedly directs those fact-specific questions to the Commission, which can issue advisory opinions under section 112.322(3).

Background and statutory framework

Section 286.012 is Florida's general "no abstention" rule for governmental bodies: presence plus an official act equals a duty to vote, subject only to the conflict-of-interest exception. That exception ties into the Code of Ethics, where section 112.312(8) defines "conflict" or "conflict of interest" in economic terms and sections 112.311, 112.313, and 112.3143 set the substantive standards and voting-conflict disclosure rules. Jurisdiction is split by design: the Attorney General opines on the meaning of section 286.012 as a matter of state law, while the Florida Commission on Ethics interprets and applies the ethics statutes to specific facts. The opinion sits at that seam, reading the voting duty broadly and the abstention exception narrowly.

Citations and references

Statutes:

• section 286.012, Florida Statutes (voting requirement at meetings of governmental bodies)
• sections 112.311, 112.313, 112.3143, Florida Statutes (conflict-of-interest and voting-conflict standards)
• section 112.312(8), Florida Statutes (definition of conflict of interest)
• section 112.322(3), Florida Statutes (Commission on Ethics advisory opinions)
• section 16.01(3), Florida Statutes (Attorney General's opinion authority)

Cases:

• Izaak Walton League of America v. Monroe County, 448 So. 2d 1170 (Fla. 3d DCA 1984), section 286.012 does not permit disqualification for bias
• Biddle v. State Beverage Department, 187 So. 2d 65 (Fla. 4th DCA 1966), express exceptions imply no others
• State Road Department v. Levato, 192 So. 2d 35 (Fla. 4th DCA 1966)

Prior Attorney General opinions referenced: 88-62, 87-17, 86-61, 85-40.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/abstension-from-voting
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1655

Original opinion text

Mr. Edward Rodgers

Chairman, Palm Beach County

Commission on Ethics

2633 Vista Parkway

West Palm Beach, Florida 33411

Dear Mr. Rodgers:

On behalf of a majority of members of the Palm Beach County Commission on Ethics, you have requested our assistance in determining whether a member of a local commission on ethics who is present at a meeting of the board may abstain from voting on a measure to avoid creating an appearance of impropriety. Attorney General Bondi has asked me to respond to your letter.

Initially, I must advise you that this office is limited by section 16.01(3), Florida Statutes, to providing legal opinions on questions of state law. Thus, the discussion herein is based on an examination of statutes and case law involving section 286.012, Florida Statutes. This office has no authority to comment on the procedures established by local ordinance for the conduct of meetings or hearings of the Palm Beach County Commission on Ethics. You may wish to discuss your concerns with the county attorney who can more fully explore any procedures established in the ordinance or charter provision creating the commission and describing its procedures.

Section 286.012, Florida Statutes, provides:

"Voting requirement at meetings of governmental bodies.—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."

Thus, the Legislature has determined that a member of a county board or commission may only abstain from voting "when, with respect to any such member there is, or appears to be, a possible conflict of interest under the provisions of" sections 112.311, 112.313, or 112.3143, Florida Statutes. It is a rule of statutory construction that express exceptions in a statute provide a strong inference that no other exceptions were intended.[1] The phrase "conflict of interest" as used in sections 112.311, 112.313, and 112.3143, Florida Statutes, means "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest."[2] However, as this office has advised on a number of occasions, any question as to what fact situations may constitute a "conflict of interest" under this statutory definition must be directed to the Florida Commission on Ethics.[3]

An opinion of the Ethics Commission, citing opinions of this office, stated that "it is clear that, when adopting the Code of Ethics (which contains the statutes referenced in section 286.012), the Legislature was concerned primarily with the effect of a public official's economic interests and relationships upon the performance of his public duties. . . . "[4] This opinion was cited by the court in Izaak Walton League of America v. Monroe County,[5] in its holding that section 286.012, Florida Statutes, did not permit disqualification from voting of a county commissioner on the grounds of predisposition amounting to bias and prejudice.

I would note that other boards and commissions, including quasi-judicial administrative bodies, conduct quasi-judicial proceedings under section 286.012, Florida Statutes. In Attorney General Opinion 88-62, this office was asked to consider under what circumstances a member of a municipal code enforcement board could recuse himself. Once created, the board was required to adopt rules relating to the conduct of meetings, but the opinion points out that any such rules adopted by the board would be required to conform to section 286.012, Florida Statutes. The opinion reviewed the provisions of Chapter 162, Florida Statutes, for the creation of these quasi-judicial administrative boards and noted that nothing in that chapter provided for the disqualification of a member or members of the code enforcement board from consideration of matters coming before the board. Thus, the opinion concludes that a member of the code enforcement board may not disqualify himself from considering a matter before the board and that, as provided in section 286.012, Florida Statutes, a member who is present at a meeting must vote unless a conflict of interest exists or appears to exist.

While the Commission on Ethics has no jurisdiction to administer section 286.012, Florida Statutes, it has interpreted the "appears to be a possible conflict" language of that statute. As the Commission advised in its letter to Mr. Farach of June 2, 2011, "non-economic bias or prejudice on the part of a public officer toward someone affected by a measure would not constitute a basis for a valid abstention pursuant to Section 286.012."[6] This office would concur in the Commission's analysis and conclusion.

Thank you for considering the Florida Attorney General's Office as a source for assistance in this matter. I trust that these informal comments will be helpful to you. This informal advisory opinion is provided in an effort to be of assistance. The comments expressed herein are those of the writer and do not constitute a formal Opinion of the Florida Attorney General.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/tsh

[1] See Biddle v. State Beverage Department, 187 So. 2d 65 (Fla. 4th DCA 1966); and State Road Department v. Levato, 192 So. 2d 35 (Fla. 4th DCA 1966), cert. discharged, 199 So. 2d 714 (Fla. 1967).

[2] Section 112.312(8), Fla. Stat.

[3] See e.g., Op. Att'y Gen. Fla. 87-17 (1987), 86- 61 (1986), and 85-40 (1985); and see s. 112.322(3), Fla. Stat., providing that public officers seeking interpretations of the Code of Ethics or the applicability of these statutes may request an advisory opinion of the Commission on Ethics.

[4] See CEO 79-14, dated March 22, 1979.

[5] 448 So. 2d 1170 (Fla. 3d DCA 1984).

[6] Letter to Manual Farach from Virlindia Doss, Florida Commission on Ethics, dated June 2, 2011.