CEO 96-12 -- May 1, 1996
VOTING CONFLICT OF INTEREST
COUNTY COMMISSIONER VOTING ON MEASURES AFFECTING VALUE
OF PROPERTIES INCLUDING PROPERTIES OWNED BY HIM
To: Neal D. Bowen, Osceola County Attorney (Kissimmee)
SUMMARY:
A county commissioner was not and is not required to abstain from voting, publicly declare his interest, and file a memorandum of voting conflict regarding measures concerning a public/private convention center project which would increase the value of various properties, including properties owned by the commissioner. The number of properties affected is of sufficient size such that the gain to the commissioner would not be Aspecial@ under the voting conflicts law. CEO=s 78-96, 84-80, 85-5, 87-18, 87-95, 91-18, 92-52, 93-10, 93-12, 93-19, and 94-10 are referenced.
QUESTION 1:
Was a county commissioner presented with a voting conflict requiring his abstention and compliance with the other requirements of Section 112.3143(3)(a), Florida Statutes, regarding a measure to endorse continuing discussion between the county and developers concerning a proposed convention center project?[1]
Under the circumstances set forth in this opinion, your question is answered in the negative.
By the County Commissioner=s January 26, 1996 letter of inquiry and accompanying materials, your letter of March 13, 1996 and accompanying materials, and the Commissioner=s March 19, 1996 meeting and discussion with one of our staff attorneys[2], we are advised that Charles Owen serves as an Osceola County Commissioner. We are advised further that the Commissioner is an owner of a 1.9-acre parcel and three[3] parcels below 1.5 acres in size which will have their market value raised by the construction of a convention center project.
Within his January 26 letter the Commissioner writes:
I have an ownership interest in a parcel of land consisting of 1.4 acres located on the north side of Highway U.S. 192, west of the city of Kissimmee and east of Interstate 4. Due to its proximity to Disney World and other central Florida attractions, this area is predominantly devoted to tourism related land uses. My parcel is used for a commercial >go-kart= type race track operation, which I co-own and co-operate with my brother, Paul Owen. Recently, I have been approached by certain developers/promoters who propose to construct and operate in Osceola County a complex consisting of a merchandise mart, a hotel, retail space, office space, and a county convention center. The project would be built on approximately 45 acres of privately owned land. The County owns some vacant adjacent land, a portion of which would be conveyed to the developers and some of which would be retained by the County for the convention center. The convention center=s construction would be funded, at least in part, by a bond issue secured by a pledge of the tourist development tax pursuant to Fla. Stat. 125.0104(5)(a). The County will seek a general law amendment by the Legislature of Fla. Stat. 125.0104(3)(n) to authorize an additional one cent levy for this purpose. The details and structure of this transaction have yet to be worked out. On 1-22-96, however, the proponents of the project made an appearance before the County Commission the purpose of which was to inform the Commissioners of the general concept of the proposal and seek the Board=s endorsement for continuing discussions with the ultimate goal of reaching a final agreement for development of the project. A certified copy of the motion passed by the Board is enclosed. The three points under discussion at that meeting are enclosed and entitled >Request of the Board= under the >Osceola Center= letterhead. I voted in favor of the motion. Pursuant to the motion, I will be the Commissioner engaged in the discussions with the developers. The purpose of the County=s participation in the project would be to provide the County with a multi-faceted facility which would provide additional revenues to the County in the form of new development and increased property values and stimulate the County=s economy through increased employment opportunities, tourism enhancement, and commercial activities.
An aerial map is enclosed which depicts the site of the proposed project and my parcel. The proposed project is colored in green. My property is marked by the red dot. My property is approximately 400 feet from the site of the proposed project. There is no access from my parcel to the site or, for that matter, to Poinciana Boulevard which would abut the easterly side of the proposed project=s site as depicted on the enclosed >Osceola Center Conceptual Master Plan=. The only access would be via Highway 192, a heavily traveled major arterial roadway. The pattern of ownership of tracts and parcels in the vicinity is diverse and numerous. I have enclosed a map indicating ownership of various larger parcels in the neighborhood.
In addition, within your March 13 letter you write:
By way of narrative introduction, please be advised that since Mr. Owen=s initial request for opinion, the site for the proposed convention center/trademart has changed. The site selection process has been expanded to include several sites along the U.S. Highway 192 Corridor. Exhibit A shows the sites, one of which will be selected in the near future.
Mr. Owen will be bringing with him, in support of his request for an advisory opinion, two maps. These maps will clearly demonstrate that the >size of the class= as applied to properties owned by Mr. Owen in the West 192 Corridor of the county negate any >special= benefit or enhancement thereby negating a voting conflict. One map, a copy of which is enclosed as Exhibit B, depicts Mr. Owen=s parcels contrasted with other, non-residential parcels (i.e., commercial, tourism uses, etc.) in the corridor of 1.5 acres or greater. This map shows that there are 605 such parcels that would benefit as much or more than Mr. Owen=s by the presence of a convention center/trademart complex no matter where it might be located within the corridor.
The second map (marked Exhibit C), which Mr. Owen will bring with him to your meeting, consists of 23 pages and provides a more close-up view of the study area. It shows Mr. Owen=s parcels and all other parcels in the corridor which are tourist service center, commercial restricted, commercial tourist, PUD, and the proposed sites of the convention center/trademart project. This series of maps provides more detail, including actual ownership and use of some parcels. It indicates 384 such parcels in its study area that would be affected by the proposed project besides Mr. Owen=s parcels.
In conclusion, it is asserted that given the hundreds of parcels similar to Mr. Owen=s in the affected area which would be benefited as much or more than Mr. Owen=s parcels, the >size of the class= doctrine would negate any voting conflict situation. Please remember that the West 192 Corridor is the >road to Disney World=. It is heavily developed with tourism-related uses and virtually all vacant properties in the area are zoned for or otherwise being held for eventual tourism/commercial uses. In fact, much of the land in the corridor is owned by Disney or its affiliates.
Further, the Commissioner advised our staff attorney at the March 19 meeting that he had spoken with appraisers and that they were of the view that the increase in value to his parcel (the parcel located approximately 400 feet from a possible site)[4] would not vary significantly from the increase in value to many other properties located farther from this proposed site, because there was no direct access from his parcel to this site. Any such access, the Commissioner advised, would require the obtaining of legal access, including access for a Acurb cut.@
The voting conflicts law applicable to local public officers such as the Commissioner provides:
No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(3); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting 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 person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143(3)(a), Florida Statutes.]
This statute requires a local public officer=s abstention from voting, public statement of private interest, and filing of a memorandum (CE Form 8B) regarding any measure which would inure to his special private gain, to that of his relatives, or to that of certain other persons or entities.[5]
Inasmuch as it has been represented that the project would increase the value of the Commissioner=s properties, we find that measures advancing or favorable to the project, such as the instant measure for continuing discussion with the ultimate goal of reaching a final agreement for development of the project, would inure to the Commissioner=s private gain and to that of his brother.[6] However, such a finding does not end our inquiry. It is our view, long held and often stated, that even when a measure inures to the private gain of a public official, it will nevertheless not inure to the official=s Aspecial@ private gain if the class of persons or properties affected by the measure is sufficiently large. See CEO 78-96 (38 out of 5,000 acres involved), CEO 84-80 (1 out of 500 persons whose property would be downzoned), CEO 85-5 (90% out of 250 residents affected), CEO 87-18 (300 out of 29,000 acres), CEO 87-95 (1 out of 650 property owners affected), CEO 91-18 (385 other property owners in the area affected by varying degrees), CEO 92-52 (owner of two five-acre parcels out of 276 parcels of varying size affected by a 4.5 mile road-widening project), CEO 93-12 (297 firefighters affected), and others. Under the facts you and the Commissioner represent to us (Commissioner owner of four non-residential parcels out of 605 similar parcels affected by project), he falls within the applicability of this Asize of the class@ doctrine, with the result that he was not required to comply with Section 112.3143(3)(a) regarding the instant measure. When a measure affects a class of sufficient size, the gain is of a Ageneral@ nature and thus is not the AspecialA gain addressed by the voting conflicts law.[7]
Accordingly, we find that the Commissioner was not subject to the voting conflicts law regarding this measure.
QUESTION 2:
Was the Commissioner required to comply with Section 112.3143(3)(a) regarding a measure to enter into a memorandum of understanding regarding the County=s and the developers= continued interest in the project?
Pursuant to the Commissioner=s conversation with our staff, we are advised further that he abstained from voting on a second measure regarding the project. This measure, we are advised, concerned whether the County Commission would enter into a memorandum of understanding supporting the project. The memorandum, he advised, was necessary to enable the developers to seek financing for their portions of the project.
In accord with our response to Question 1 above, we find that Section 112.3143(3)(a) did not require the Commissioner=s abstention, public statement of interest, and filing of a memorandum as to this measure. The size of the class affected by the project would be sufficiently large such that no Aspecial@ gain would result to the Commissioner.
QUESTION 3:
Would the Commissioner be required to abstain and otherwise comply with Section 112.3143(3)(a) regarding other measures concerning the project, including a measure to enter into a formal agreement between the County and the developers concerning construction and operation of the project?
As with our findings above, it is our view that such measures would not require the Commissioner=s abstention, public declaration of interest, and filing of CE Form 8B, under Section 112.3143(3)(a), provided the class affected by the measures remains sufficiently large.
This question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 29, 1996, and RENDERED this 1st day of May, 1996.
__________________________
William J. Rish
Chairman
[1] This opinion focuses on the voting conflicts law contained within Section 112.3143(3)(a), notwithstanding that Commissioner Owen=s January 26, 1996 letter to us also inquired as to whether his participation in the discussions with the developers would constitute a prohibited conflict or other prohibited conduct. Section 112.3143(4), Florida Statutes, which concerns Aparticipation@ in matters inuring to the special private gain of a public official or to that of certain other persons or entities, only applies to appointed officials and not to elected officials such as the Commissioner. Further, a county commissioner=s discussion with developers about a potential public/private project, especially when authorized by the county commission, would not constitute a Acorrupt@ use of official position under Section 112.313(6), Florida Statutes.
[2] At this meeting, the Commissioner exhibited several large color-coded maps showing possible sites for the convention center project, the location of his properties, the location of numerous properties owned by persons or entities other than himself, and various other information.
[3] Our staff advises us that at the March 19 meeting the Commissioner advised that AEXHIBIT B@ attached to your March 13 letter should have referred to three parcels below 1.5 acres in size, rather than to four.
[4] The Commissioner advised our staff attorney that this site is no longer being considered for location of the project.
[5] This opinion does not concern gain to persons or entities other than the Commissioner and his co-owner/brother, as it is not indicated that any such other persons or entities (i.e., any principals by whom the Commissioner is retained) would stand to gain or lose from any project measures.
[6] While the final measure voted upon regarding an action, project, or endeavor which causes gain or loss to the voting official is subject to the requirements of Section 112.3143(3)(a), the statute is not limited to the final measure. The voting conflicts law applies to any measure which is necessary to the advancement or approval of a project or requested action. See, for example, CEO=s 93-10 and 94-10.
[7] The Asize of the class@ doctrine itself is subject to the exception that it will not apply if there are circumstances unique to the voting official or his property that would render the effect of a measure upon the voting official or his property materially different from its effect on similarly situated persons or properties. See, for example, CEO 93-19. We do not view the proximity of one of your parcels to one of the possible project sites (a site in consideration at the time of this vote but no longer in consideration) to be such a circumstance, inasmuch as you have represented to us that there was no direct access from your parcel to this site and inasmuch as you represent, pursuant to your contact with appraisers, that your parcel thus would not have its value affected more than parcels located farther from this site.