Can a member of a local board be disqualified from an agency proceeding for bias or interest in Florida?

Plain-English summary

The chairman of the Palm Beach County Commission on Ethics asked whether a member present at a board meeting could abstain from voting to avoid an appearance of impropriety, and pressed for a formal opinion after an earlier informal response. The Attorney General again declined to issue a formal opinion. Under section 16.01(3), the office advises only on questions of state law, and the question turned on the local ordinance procedures governing the county ethics commission, which the AG cannot interpret. It suggested the commission's own attorney was the right source.

The earlier informal response had addressed the abstention question through section 286.012, the state law on the duty to vote. In this follow-up, the office offered an additional pointer: section 120.665, part of Florida's Administrative Procedures Act, provides a mechanism for disqualifying agency personnel. It allows an individual serving as an agency head to be disqualified from an agency proceeding for bias, prejudice, or interest when a party shows just cause through a timely filed suggestion. If the disqualified person was appointed, the appointing power may name a substitute; if elected, the Governor may; and if a quorum remains, no substitute is needed.

The office suggested the commission consult its attorney about adopting a rule modeled on section 120.665 or on the model rules of administrative procedure, so it could tailor a disqualification rule to its needs. These were informal comments, not a formal opinion.

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.

Common questions

Q: Did the Attorney General decide whether the ethics commission member could abstain?
A: Not formally. The office declined to issue a formal opinion because the question turned on local ordinance procedures it cannot interpret under section 16.01(3), and it pointed the commission to its own attorney.

Q: Is there a state law for disqualifying a board member from a proceeding?
A: The opinion pointed to section 120.665, part of the Administrative Procedures Act, which allows an individual serving as an agency head to be disqualified from an agency proceeding for bias, prejudice, or interest when a party shows just cause by a timely suggestion.

Q: What happens to the seat if a member is disqualified?
A: Under section 120.665, an appointed individual's seat may be filled by the appointing power, and an elected individual's by the Governor. But if a quorum remains after the disqualification, no substitute need be appointed.

Q: Could the commission write its own disqualification rule?
A: The office suggested it could. It recommended the commission consult its attorney about adopting a rule modeled on section 120.665 or on the model rules of administrative procedure, tailored to the commission's needs.

Background and statutory framework

Section 16.01(3), Florida Statutes, limits the Attorney General to opinions on questions of state law, which is why the office repeatedly declined to construe the Palm Beach County ethics ordinance. The substantive abstention question had been handled through section 286.012, which addresses a member's duty to vote and the narrow circumstances for abstaining.

Section 120.665 supplies the state-law analog the office offered as a model. It overrides the voting-conflict rules of section 112.3143 for disqualification purposes, letting an agency-head individual be removed from a particular proceeding for bias, prejudice, or interest on a showing of just cause, and it keeps agency business moving by providing for substitutes or relying on a remaining quorum. The opinion presented it as guidance the commission could adapt, not as a binding answer to the local-procedure question.

Citations and references

Statutes:

• § 16.01, Fla. Stat. (Attorney General duties)
• § 286.012, Fla. Stat. (Duty to vote)
• § 120.665, Fla. Stat. (Disqualification of agency personnel)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/board-proceeding-disqualification-of-member
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8158

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 May 6, 2011, you 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. This office responded to you in an Informal Attorney General Opinion dated June 9, 2011. By letter of July 11th, you again requested that this office issue a formal opinion on your question.

As you were advised in our earlier response, this office is limited by section 16.01(3), Florida Statutes, to providing legal opinions on questions of state law. Thus, the discussion in the Informal Attorney General Opinion was 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. As was suggested in our earlier response, you may wish to discuss your concerns with the county attorney or the attorney who advises the Palm Beach County Commission on Ethics who can more fully explore any procedures established in the ordinance or charter provision creating the commission and describing its procedures.

However, In an effort to provide you with additional assistance, I would note that section 120.665, Florida Statutes, a section of Florida's Administrative Procedures Act, makes provision for the disqualification of agency personnel as follows:

"(1) Notwithstanding the provisions of s. 112.3143, any individual serving alone or with others as an agency head may be disqualified from serving in an agency proceeding for bias, prejudice, or interest when any party to the agency proceeding shows just cause by a suggestion filed within a reasonable period of time prior to the agency proceeding. If the disqualified individual was appointed, the appointing power may appoint a substitute to serve in the matter from which the individual is disqualified. If the individual is an elected official, the Governor may appoint a substitute to serve in the matter from which the individual is disqualified. However, if a quorum remains after the individual is disqualified, it shall not be necessary to appoint a substitute.

(2) Any agency action taken by a duly appointed substitute for a disqualified individual shall be as conclusive and effective as if agency action had been taken by the agency as it was constituted prior to any substitution."

Thus, the Florida Statutes make provision for the disqualification of an individual who is serving in an administrative agency proceeding when bias, prejudice, or interest is shown. The statute provides a procedure for establishing just cause for disqualification and makes provision for filling the seat of the disqualified individual so that business may continue to be conducted by the board or agency. I am enclosing a copy of section 120.665, Florida Statutes, with the annotations of cases construing this statute for your consideration.

The Palm Beach County Commission on Ethics may wish to consult with its attorney to determine whether adopting a rule making substantially the same provision for conducting the business of the commission is appropriate. I am also advised that various the model rules of administrative procedure may contain similar provisions and the attorney for the commission may wish to research and provide to the commission several such disqualification provisions in order that the commission may tailor a rule of conduct to suit its particular needs.

I trust that these informal comments may be helpful to you in addressing your concerns.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/tsh

Enclosure: s. 120.665, Fla. Stat. Annot.