CEO 85-77 -- October 24, 1985

VOTING CONFLICT OF INTEREST

SCHOOL BOARD MEMBER OWNING BUSINESS NEAR PROPOSED LOCATION OF SCHOOL DISTRICT ADMINISTRATIVE COMPLEX

To: Mr. Edward J. Marko, Attorney for Broward County School Board

SUMMARY:

A school board member who owns a retail clothing business near the site of a proposed school district administrative complex is not prohibited by Section 112.3143, Florida Statutes, from voting on matters relating to the use of the school district's property. Given the particular nature of the board member's business any gain or loss resulting from measures relating to the use of the school district's property would be too speculative and remote to constitute "special gain" requiring the board member to abstain from voting.

QUESTION:

Is a school board member who owns a retail clothing business near the site of a proposed school district administrative complex prohibited by Section 112.3143, Florida Statutes, from voting on matters relating to the use of the school district's property?

Your question is answered in the negative.

In your letter of inquiry you advise that Mr. Neil Sterling currently serves as a member of the Broward County School Board. Prior to Mr. Sterling's election to the School Board, the Board voted to adopt a resolution selecting certain real property in downtown Fort Lauderdale for an administrative complex and related parking facilities. The School Board since has acquired title to all properties necessary for the project, but no construction efforts have taken place as the City has enacted restrictive ordinances that have delayed further steps with regard to the project.

You also advise that the mother of the subject School Board member owns real estate directly across the street from the proposed site of the administrative complex. The Board member owns and serves as president of a retail clothing store which is located upon his mother's property.

The City would like to obtain portions of the downtown site that have been acquired by the School Board. The City intends to restore and renovate structures presently located on the site and to create a landscaped plaza there in order to create a historical district to revitalize and entice new businesses to the area.

The City has presented a proposal to the School Board which would alter the previous plans for development of the administrative complex. Therefore, several measures are likely to come before the School Board for a vote concerning the utilization of the District's properties.

A measure may be proposed to relocate the administrative complex and parking facilities within two to three blocks of the clothing store. This measure would involve a sale to the City of School Board property located directly across from the clothing store to enable the City to proceed with plans for building restoration and plaza development. The City's plans also propose the construction of a new commercial building to be located on property immediately south of the store.

Another measure may involve the sale as surplus property of all School Board owned properties in the area, with the new administrative complex and parking facilities to be relocated over one mile from the clothing store. Development of the property near the store then would be determined by the purchaser of the property. The Code of Ethics for Public Officers and Employees provides in relevant part:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, 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. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one- acre, one-vote basis is not prohibited from voting. [Section 112.3143(3), Florida Statutes (Supp. 1984).]

This provision prohibits a public officer from voting on any measure which inures to the special private gain of the officer or of any principal by whom he is retained.

We previously have advised that an official is not prohibited from voting on measures affecting the value of property owned by his parent. See CEO 85-27. Therefore, the question we must decide is whether the measures under consideration would inure to the special gain of the Board member's retail clothing business. We have advised that the requirements of Section 112.3143 do not turn on the nature of the official's vote--whether it is for or against the measure--but rather on whether the interest which he holds is such that he or his principal would stand to gain or lose as a direct outcome of the decision. See CEO 84-116, CEO 83-50, and CEO 76-24.

Nevertheless, it is our opinion that any gain or loss resulting to the member's business would be too speculative and remote to allow us to conclude that any of the measures under consideration would inure to the "special gain" of the clothing business. Presumably all retail businesses in the area would benefit somewhat by the location of a large office building in the area. However, it would be purely a matter of speculation and conjecture on our part to attempt to conclude that the Board member's business would derive any special gain from proceeding with the School Board's original plan, from shifting the location of the administrative complex slightly, or from declaring the property surplus and leaving it undeveloped for the near future.

For the reasons expressed above, we do not address the question of the impact of these measures on the value of the property on which the Board member's business is located. Nor do we intend to address the impact of these types of decisions on retail businesses of any variety other than that owned by the subject Board member, as we recognize that the effects of locating a large office complex on a nearby restaurant would differ from the effects on a nearby plumbing supply business.

Accordingly, we find that the subject Board member is not prohibited by Section 112.3143, Florida Statutes, from voting on matters relating to the use of the School District's property.