CEO 87-82 -- October 29, 1987

CONFLICT OF INTEREST; VOTING CONFLICT

CITY ADVISORY COMMITTEE MEMBERS MAKING RECOMMENDATIONS

REGARDING USE OF PROPERTY LOCATED NEAR THEIR BUSINESSES

To: (Name withheld at the person's request.)

SUMMARY:

No prohibited conflict of interest exists where members of a city advisory committee created to make recommendations to the city commission regarding the transfer of the city equipment yard to another location and the redevelopment of the property are the president or the owner of companies located near the property. Under the circumstances presented, the advisory committee members' employment would not create a continuing or frequently recurring conflict of interest or impede the full and faithful discharge of their public duties, in violation of Section 112.313(7), Florida Statutes. Whether a committee member would be prohibited by Section 112.3143, Florida Statutes, from voting on a measure coming before the committee would depend on the nature of the measure and its impact on the member's employer or company.

QUESTION 1:

Does a prohibited conflict of interest exist where a member of a city advisory committee created to make recommendations to the city commission regarding the transfer of the city equipment yard to another location and the redevelopment of the property is the president or the owner of a company located near the property?

This question is answered in the negative.

In your letter of inquiry you advise that .... serves as a member of the Coral Gables Industrial Section Business Village Advisory Committee and that he is president of an engineering company located within the City. You also advise that ...., another member of the Committee is the majority stockholder of another company located within the City.

You advise that the primary purpose of the Committee is to make recommendations regarding the transfer of the City's equipment yard to another location. According to the resolution which created the five-member Committee, the Committee will recommend an implementation plan for the redevelopment of the equipment yard property to the City Commission and will prepare a request for proposals package for interested developers to be approved by the City Commission.

Finally, you advise that the engineering company is owned by a family which owns the real property upon which the company is located; this property and business are located close to the City equipment yard. The other company owns the property on which the business is located, which is approximately 1/4 mile from the equipment yard.

The Code of Ethics for Public Officers and Employees provides in relevant part:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), Florida Statutes (1985).]

Under the circumstances presented, it does not appear that either company is doing business with or is subject to the regulation of the Advisory Committee or the City Commission. Therefore, the remaining question is whether the employment of the two Committee members presents them with a continuing or frequently recurring conflict of interest or impedes the full and faithful discharge of their duties on the Advisory Committee.

In prescribing the Code of Ethics, the Legislature declared its intent to be that no officer of a city have any interest, engage in any business or professional activity, or incur any obligation "which is in substantial conflict with the proper discharge of his duties in the public interest." Section 112.311(5), Florida Statutes. In our view, the fact that companies which the Committee members either own or are employed by are located on, or have interests in, property located near the equipment yard does not create such a substantial conflict of interest as to disqualify them from serving on the Advisory Committee. First, we note that the Committee serves solely an advisory function and is not responsible for any final determination regarding the use or development of the equipment yard property. Secondly, we note that as expressed in the resolution creating the Committee the City Commission is of the opinion that the property "could be put to a more economically feasible use." In other words, the purpose for creating the Committee was to improve the equipment yard property; the natural result of such improvement would be to increase the value of nearby properties.

Accordingly, we find that no prohibited conflict of interest exists where a member of the Advisory Committee is the president or the owner of a company located near the City equipment yard.

QUESTION 2:

Is a member of the Industrial Section Business Village Advisory Committee prohibited by Section 112.3143, Florida Statutes, from voting on matters involving the equipment yard?

Regarding voting conflicts for local officials, the Code of Ethics provides as follows:

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 (1985).]

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

Whether a particular measure will inure to the special gain of a Committee member or a principal by whom he is retained will depend on the nature and effect of the measure being voted upon by the Committee. With respect to the Committee member who is president of the engineering company, it does not appear that he has any personal interests which would be affected by matters coming before the Committee. However, it is possible that his employer, the engineering company, may stand to gain or lose by virtue of a particular measure being considered by the Committee. With respect to the other Committee member, the majority stockholder of a company which owns and is located on property near the equipment yard, it is possible that a measure before the Committee could be said to inure to his special gain (or loss) by virtue of the impact of the measure on his company or on the value of the property owned by his company. One example of this might be a proposal to locate a competing business on the equipment yard property. However, not every matter involving the property necessarily will inure to the special gain of this Committee member. See CEO 85-77 (school board member owning business near proposed location of school district administrative complex), and CEO 85-87 (city council member voting on redevelopment of property located next to bank which employs him).

Your question is answered accordingly.