CEO 83-50 -- July 28, 1983

VOTING CONFLICT OF INTEREST

METROPOLITAN PLANNING ORGANIZATION MEMBER VOTING ON MATTERS CONCERNING EXTENSION OF ROAD AFFECTING HIS PROPERTY

To: Ms. Karen A. Edwards, Assistant County Attorney, Orange County

SUMMARY:

No voting conflict of interest was created where a metropolitan planning organization member voted to amend a motion concerning the scheduling of the extension of a road, where part of property owned by him would have to be acquired as right-of-way for the proposed road. Under the circumstances, the motion was preliminary in nature and did not inure to his gain. Nor was a voting conflict of interest created where the member voted on a motion regarding acceleration of design and production efforts for the planned extension of the road, where the effect of the motion was neither to alter the priorities for expending funds already available nor to speed up the right-of-way acquisition for the project. CEO 78-74 is referenced.

QUESTION 1:

Was a voting conflict of interest created where a metropolitan planning organization member voted to amend a motion concerning the scheduling of the extension of a road, where part of property owned by him would have to be acquired as right-of-way for the proposed road?

This question is answered in the negative.

In your letter of inquiry you advise that Mr. Robert S. Harrell is a member of the Orange County Commission and of the Orlando Urbanized Area Metropolitan Planning Organization (MPO). You also advise that the Commissioner is a partner in a partnership which owns approximately 9.5 acres of property in the County. For several years, the MPO has planned the extension of a road which would require the Department of Transportation to acquire approximately 2.5 to 3 acres of this property. Currently, the acquisition of right-of- way for this extension is scheduled for 1986-87.

Prior to the Commissioner's first meeting as a member of the MPO, you advise, a local church appeared before the MPO requesting that the priority of the road extension be advanced, either by completing the extension earlier or by segmenting construction of the extension. The MPO requested analysis of these alternatives, and a staff report was presented at the first MPO meeting attended by the Commissioner.

A motion was made at that meeting to (among other things) accelerate design and production efforts and to have the Department of Transportation to begin construction of the project in segments, if funds were not available to construct the entire project after completion of all design and production efforts. Following discussion, a motion was made to amend the original motion to delete this recommendation, which motion passed with the Commissioner voting in favor of the motion. You question whether a voting conflict of interest requiring the filing of a memorandum of voting conflict under Section 112.3143, Florida Statutes, was created when the Commissioner voted on the motion to amend the original motion.

Section 112.3143, Florida Statutes, provides as follows:

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 CEO 78-69, we recognized that MPO's have been created to plan transportation development in urbanized areas. In order for a community to receive federal highway or urban mass transportation funds for a specific project, that project must be consistent with the plan developed by the MPO. In our view, as a member of a body with these responsibilities, the subject Commissioner is a "public officer" for purposes of Section 112.3143.

In CEO 76-24, we advised that the factor which creates a duty to file a memorandum of voting conflict is not the nature of the official's vote -- whether it is for or against the measure -- but is whether the interest which he holds is such that he or his principal would stand to gain or lose as a direct result of the outcome of the Board's decision. Therefore, the fact that the subject Commissioner apparently voted against his interests by voting to amend the motion does not matter.

However, we are of the opinion that generally preliminary or procedural motions do not "inure" to the benefit of a public officer or a principal by whom he may be retained. See, for example, CEO 78-74, regarding a vote to take a matter off a consent agenda and to be taken up for discussion. Here, it appears that the decision of whether to amend the motion would not affect the Commissioner's property. What, if anything, would be done by the MPO which would affect the property awaited a vote on the final motion regarding the extension, whether that motion were amended or not.

Accordingly, we find that no voting conflict of interest was created by the Commissioner's vote to amend the motion regarding the road extension project.

QUESTION 2:

Was a voting conflict of interest created where a member of a metropolitan planning organization voted on a motion regarding acceleration of design and production efforts for the planned extension of a road, which extension would require the acquisition of property owned by the member?

This question also is answered in the negative.

In your letter of inquiry you advise that after the motion to amend the original motion passed, a vote was taken on the motion as amended, which passed unanimously. The Commissioner cast his vote in favor of the motion as amended and did not file any disclosure pursuant to Section 112.3143. The effect of the final motion, you state, was neither to alter the priorities for expending funds already available nor to speed up the right-of-way acquisition for the project. Although the design and production efforts on the project were accelerated under the motion, right-of-way acquisition and construction could occur sooner only if "unanticipated funding" for the road project became available. Finally, you advise that subsequently the Department of Transportation suggested that the project could be funded from newly authorized gas tax funds. When the MPO voted to begin right-of-way acquisition in 1983-84 and construction in 1984-85 with this new funding, the Commissioner abstained from voting and filed a memorandum of voting conflict.

In our view, the measure voted upon by the Commissioner did not inure to his special private gain, and he was not required to file a memorandum of voting conflict after voting on the motion to accelerate design and production efforts regarding the proposed road extension. Although accelerating design and production efforts apparently could result in an earlier acquisition of the Commissioner's property than otherwise would be possible, the actual priority of acquiring the right-of-way and beginning construction was not advanced. We believe that a decision regarding acquisition of right-of-way would inure to the Commissioner's gain, but the motion upon which he voted was preliminary to acquisition matters and did not have that effect.

Accordingly, we find that no voting conflict of interest necessitating the filing of a memorandum of voting conflict under Section 112.3143, Florida Statutes, was created when the Commissioner voted on the motion regarding the acceleration of design and production efforts in order to take advantage of any unanticipated funding which might have become available.