CEO 95-17 -- August 31, 1995

CONFLICT OF INTEREST

CITY-COUNTY PLANNING COMMISSION MEMBER, A CIVIC ACTIVIST

OPPOSED TO DEVELOPMENT OF REGIONAL MALL, VOTING TO

REDUCE DENSITIES ON OTHER PROPERTY OWNED BY

THE MALL DEVELOPERS WHO HAVE FILED A

CIVIL RIGHTS LAW SUIT AGAINST HER

To: Tracy J. Robin, Attorney for the Hillsborough County City-County Planning Commission (Tampa)

SUMMARY:

No prohibited conflict of interest was created where a city-county planning commissioner, who also is a community spokesperson opposed to a variety of development projects in the area of the county in which she lives and a former member of a task force established to promote public participation and provide input into long-range use planning issues affecting the area and disbanded in 1989, voted on a comprehensive plan amendment affecting the allowable densities on certain parcels of land in the area, including several parcels owned by property owners who have filed a civil rights lawsuit against her for her activities opposing their DRI application for a proposed shopping mall.

Section 112.313(7)(a), Florida Statutes, requires that a prohibited conflict of interest be based upon a conflicting employment or contractual relationship. As it does not appear that the commissioner either was employed by or had a contractual relationship with the task force or that the task force was doing business with or subject to the regulation of the planning commission, no violation of the first part of Section 112.313(7)(a) existed. Furthermore, as the personal views and philosophy of public officers and the private organizations with which they are associated are irrelevant to the question of whether a conflict of interest exists, the commissioner's former affiliation with the task force and her prior pronouncements concerning development in the area did not create a continuing or frequently recurring conflict of interest or impediment to the full and faithful discharge of her duties as a planning commissioner.

Although it could be argued that the commissioner's voting in favor of the property owners on the plan amendment might have resulted in the dismissal of the lawsuit, the issue of whether a voting conflict existed turned on the nature of the measure being considered by the planning commission and that measure's relationship to the commissioner's interests, rather than on the identity of the property owners appearing before the planning commission and the property owners' relationship to the commissioner. Under the circumstances presented, the plan amendment does not have any relationship to the civil rights lawsuit filed against the commissioner and others. Furthermore, it would be speculative to assume, particularly where the subject matter underlying the civil rights lawsuit is unrelated to the plan amendment, that the planning commission's decision on the plan amendment would have inured to the commissioner's special private gain or loss. Because it appears that no special private gain would have inured to the commissioner or to her husband under the circumstances, Sections 112.3143(3) and 112.3143(4), Florida Statutes, were inapplicable.

The property owners' argument about the possibility of the commissioner retaliating against them because of the lawsuit relates to a possible misuse of position in violation of Section 112.313(6), Florida Statutes, not to whether a prohibited conflict of interest existed. No final conclusion can be drawn whether a violation exists under this provision, as it requires a determination of intent which can only be made through investigation and hearing.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit an appointee to a city-county planning commission, who also is outspoken against a variety of development projects in the area of the county in which she resides and was a member of an area task force established to promote public participation and provide for input into long-range planning issues, from voting on a comprehensive plan amendment affecting the allowable densities on certain parcels of land in the area, including several parcels owned by property owners who have filed a civil rights lawsuit against the Commissioner for her activities in opposing their DRI application on other property on which they propose to build a shopping mall?

Your question is answered in the negative.

Your letter of inquiry advises that you are requesting this opinion on behalf of Jan T. Smith, Chair of the Hillsborough County City-County Planning Commission ("Planning Commission"), which was created by Chapter 78-523, Laws of Florida, to conduct continuous planning and make recommendations to the Hillsborough County Commission, municipalities within the County, and other appropriate public bodies concerning the orderly growth and development of the County. You advise that the Planning Commission functions as the local land planning agency under the provisions of Section 163.3161, et seq., Florida Statutes (the "Local Government Comprehensive Planning and Land Development Regulation Act"). It is composed of ten appointed commissioners, who serve without compensation other than reimbursement for expenses.

You write that the Planning Commission's function is to coordinate planning and land use activity and to prepare comprehensive plans for adoption by the County and the municipalities within the County. It also reviews requests for amendments to the comprehensive plans and makes recommendations on those requests to the appropriate local governing body. Furthermore, it reviews proposed land development regulations and makes recommendations to local governing bodies concerning the relationship of the proposed regulations to the adopted comprehensive plans. You claim that all of these activities are advisory in nature.

You advise that prior to being appointed in 1991 to the Planning Commission, the Commissioner was a civic activist in the community of Lutz, a rural residential area located in the Northwest part of the County. Her concerns, you write, related to the County's water resources and the impact of projected growth in that area of the County. She also became well known as a community spokesperson opposed to a variety of development projects in the area, including the proposed development of a regional mall. You advise that her concern about water resources and her outspoken opposition to development that would alter the rural nature of the Lutz area has continued even after her appointment to the Planning Commission.

You write that in 1988 or 1989, the owners ("property owners") of the proposed mall property applied for DRI development approval. In April 1994, their application was denied by the County Commission. You submit that the Commissioner appeared at hearings before a Zoning Hearing Master in her private capacity, as a concerned citizen and not as a member of the Planning Commission, to voice her opposition to the proposed mall, but the property owners still were concerned about her appearance. In December 1993, the Commissioner also appeared in her private capacity, as a concerned citizen before the Governor and Cabinet sitting as the Administration Commission, in opposition to the Recommended Order which potentially allowed for the development of the mall, you advise.

Consequently, in January 1995, the property owners filed a civil rights lawsuit under 42 U.S.C. Section 1983 against the Commissioner, individually and in her official capacity as a member of the Planning Commission, the Board of County Commissioners, and the State of Florida. With respect to the claims against the Commissioner in her individual capacity, you advise that the property owners essentially claim that the Commissioner improperly used her official position to prejudice the proceedings against them before both the Zoning Hearing Master and the Administration Commission. However, you contend that this lawsuit appears to be nothing more than a strategic lawsuit against public participation (a "SLAPP" suit) designed to chill the Commissioner's involvement in pending appeals and any other related matters.

You further advise that at the April 8, 1995 Planning Commission meeting, the property owners appeared and submitted a letter and motion requesting that the Commissioner recuse herself from considering proposed Plan Amendment 95-01, which sought to change the land use of approximately 2,900 acres of land lying on the West side of North Dale Mabry Highway, West and Northwest of the proposed mall site. The Plan Amendment would effectively reduce the allowable densities in that area ("downplanning" of Lutz Area Properties), you advise. You also advise that the property owners also own a couple of relatively small parcels in the Plan Amendment area. However, none of their property subject to the plan amendment is involved in the civil rights lawsuit, you advise.

The property owners' motion claims that the Commissioner has a personal and financial interest adverse to them in the "downplanning the Lutz Area Properties." They claim that as a Lutz resident and member of the Lutz Task Force (an entity established by the Planning Commission in 1987 to promote public participation and provide input into long range use planning issues affecting the Lutz community and disbanded in 1989), and a named defendant in a $291 million lawsuit, the Commissioner has an "untenable conflict of interest." It asserts that even after the settlement negotiated between the County and the property owners was "sanctioned" in a final order rendered by the Governor and Cabinet sitting as the Administration Commission, the Commissioner initiated the "downplanning" in violation of the Administration Commission's mandate. The property owners argue that the Commissioner's actions with respect to the proposed "downplanning" arguably could relate to a defense to her liability. Moreover, they claim that her actions may also provide her with a means to retaliate against them for their filing suit against her. They contend that the Commissioner's participation and voting on these matters would violate Section 112.313.

You advise that the letter was read by the Commissioner into the record at the Planning Commission meeting. In order to comply with Section 112.3143(3), Florida Statutes, she also made a brief statement of disclosure which referenced the lawsuit. After noting that she was unaware of the existence of any conflict, the Commissioner participated in the discussion and voted in favor of the Plan Amendment, you advise. Thereafter, her written Memoranda of Disclosure was prepared and filed with the Recording Clerk.

Lastly, you advise that the Commissioner is employed as an office manager by her husband, a pediatric physician, and her home is located two-thirds of a mile Southeast of the proposed mall site. Her home is neither part of the property which was subject to the DRI application nor located within any part of the area subject to Plan Amendment 95-01. Due to questions raised by the property owners in their letter and motion, the Commissioner requests that we advise her whether any prohibited conflicts of interest existed under these circumstances.

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

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.]

VOTING CONFLICTS.--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 loss; which he knows would inure to the special private gain or loss of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he 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 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. [Section 112.3143(3)(a), Florida Statutes.]

VOTING CONFLICTS.--No appointed public officer shall participate in any matter which would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained; or which he knows would inure to the special private gain of a relative or business associate of the public officer, without first disclosing the nature of his interest in the matter. [Section 112.3143(4), Florida Statutes.]

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes.]

For purposes of this provision, the term "corruptly" is defined as follows:

'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(9), Florida Statutes.]

Section 112.313(7) prohibits the Commissioner from having a contractual or employment relationship with a business entity or agency if the entity or agency is doing business with or is subject to the regulation of her agency. It also prohibits her from holding any employment or contractual relationship that will create a continuing or frequently recurring conflict between her private interests and the performance of her public duties or that would impede the full and faithful discharge of her public duties.

Under the circumstances presented, it appears that the Commissioner neither is employed by nor has a contract with the Lutz Task Force, which, we are informed, was disbanded by the Planning Commission prior to her appointment to the Planning Commission in 1991; therefore, we find that she has no employment or contractual relationship with the Task Force. Under the circumstances presented, it also does not appear that the Task Force, which was disbanded in 1989, is doing business with or subject to the regulation of the Planning Commission. Hence, it does not appear that the Chairman's former membership or association with the Task Force creates a prohibited conflict of interest under the first part of Section 112.313(7)(a). See CEO 84-118 (Member of a city-county planning commission serving on a chamber of commerce task force which makes recommendations regarding growth management and land use planning) and CEO 81-39 (Member of a city planning commission serving as an officer in a nonprofit private association formed to study and to make recommendations concerning state and local taxation and local government). Nor do we find that the Commissioner's former affiliation or membership with the Task Force creates a continuing or frequently recurring conflict of interest or impediment to the full and faithful discharge of her duties as a Planning Commissioner, as we adhere to our previously expressed opinion (See CEO 81-39) that the personal views and philosophy of a public officer and the private organizations with which she is or was associated are irrelevant to the question of whether a conflict of interest is prohibited by Section 112.313(7)(a). Section 112.313(7)(a) requires that a prohibited conflict of interest be based upon certain conflicting employment or contractual relationships, which we do not find present here.

Section 112.3143(3)(a), Florida Statutes, prohibits the Commissioner from voting on a measure which inures to her special private gain or loss, to the special private gain or loss of a principal by whom she is retained, or to the special private gain or loss of a relative or business associate. It also contains an affirmative duty of disclosure so that interested parties and the public will understand why she abstained from voting. The Commission on Ethics has promulgated CE Form 8B for this purpose. Additionally, Section 112.3143(4) prohibits the Commissioner, as an appointed public officer, from "participating" in any matter which would inure to her special private gain or loss or to the special private gain or loss of her principal without first disclosing her conflict prior to her participation in the matter. For purposes of this provision, the term "participation" has been defined at Section 112.3143(4)(c) to mean "any attempt to influence the decision by oral or written communication whether made by the officer or at his direction."

Under the circumstances presented, we must determine whether the Commissioner's vote on the DRI application and/or the Plan Amendment inured to her special private gain, to the special private gain of a relative, to the special private gain of a principal by whom she is retained, or to the special private gain of a business associate. Because it does not appear that the Commissioner's votes on either the DRI application relative to the proposed mall or the Plan Amendment inured to the special private gain of a relative, business associate, or principal by whom she is retained, we find that unless her votes inured to her own special private gain, no voting conflict of interest existed. We have no information indicating that either the DRI application or the Plan Amendment had any affect upon the medical practice of the Commissioner's husband (who also is her relative and principal by whom she is retained). We also have been advised that the home of the Commissioner and her husband is located outside of the area subject to the DRI application and the Plan Amendment. Therefore, we have no reason to believe that their property would be impacted by the decision of the Planning Commission.

With respect to the issue of whether the Planning Commission's decision on the Plan Amendment inured to the Commissioner's special private gain, we initially note that the measure, as we have been advised, did not involve any real property in which the Commissioner held an interest. Nor do we have any indication that it would have affected any other property in which she held an interest. Hence, the only other issue that we must determine is whether the civil rights lawsuit with its attendant prayer for significant damages presented a conflict of interest such that the Commissioner would stand to gain or lose as a direct outcome of the Planning Commission's decision on the Plan Amendment. CEO 93-21.

In CEO 86-57, we opined that we did not feel that the threat of a lawsuit or appeal of an official's actions should be sufficient to disqualify that official from taking any action. "Otherwise," we wrote, "any person might be able to disqualify an entire board from taking action simply by advising the board that he would appeal their decision or file a lawsuit against them if the board were to take action adverse to the individual." In CEO 86-57, an applicant for a concealed weapons permit had threatened that depending on the outcome of their vote on his application, he would file a lawsuit against the county commission. However, one possible distinction here is that the civil rights lawsuit already had been filed, claiming significant damages against the Commissioner at the time of the Planning Commission's consideration of the Plan Amendment. Moreover, the claim and the lawsuit, as you have informed us, relate to the Commissioner's actions relative to the DRI application, rather than to the Plan Amendment.

Although it may be argued that the Commissioner's voting in favor of the position of the property owners on the Plan Amendment might have resulted in a dismissal of the lawsuit, we previously have held that the issue of whether or not a voting conflict exists turns on the nature of the measure being considered by the public body and that measure's relationship to the public officer's interests, rather than on the identity of the party before the public body and that party's relationship to the public officer. See CEO 92-29 and CEO 91-48. Consequently, we find that under the circumstances presented the Plan Amendment had no direct relationship to the civil rights lawsuit filed against the Commissioner.

We also have recognized that any gain or loss to a public officer resulting from a particular measure may be too remote and speculative to constitute "special gain." Thus, in CEO 93-21, we found that a city planning and zoning commissioner could vote on a developer's special zoning exception request to change uses of lots one city block from lots owned by her and her husband. We found that, because there was no indication that the commissioner would be voting on a measure which inured either to her special private gain or to that of her husband, no voting conflict of interest would exist were she to vote on the special zoning exception request. We opined that any benefit to the commissioner's and her husband's property would be too remote and speculative. Similarly, in CEO 86-44, we advised that a city council member was not prohibited from voting on a site plan for a shopping center located adjacent to the florist store he owned and operated. In CEO 85-77, we found that a school board member who owned a retail clothing business near the site of a proposed school district administrative complex was not prohibited from voting on matters relating to the use of the school district's property. In CEO 91-17, we found that a city council member was not prohibited from voting on the road alignment being considered, where the member owned property abutting the road but which would not be directly affected by the proposed configuration of roads. We noted that while it was perceived that property values along the street would be enhanced for commercial development, even if the property values did increase, the council member's property would have to be rezoned for commercial usage. Therefore, we concluded that any benefit to the council member's property would be too remote and speculative to constitute "special gain." Finally, in CEO 93-4, we advised that Section 112.3143(3), Florida Statutes, would not be violated were a city commissioner to vote on rent increases at the city's mobile home park, where he proposed to build an r.v. park across the street from the city park. There, we found that the assumption that the commissioner could charge higher rents at his "still to be built" park if the city increased the rent at the city-owned park was too remote and speculative to create a voting conflict.

Likewise, here we find that although the Commission's decision on the Plan Amendment in favor of the property owners might have resulted in a dismissal of the law suit, it would be speculative to assume, particularly where the subject matter underlying the civil rights lawsuit is unrelated to the Plan Amendment, that the Planning Commission's decision on the Plan Amendment would have inured to the Commissioner's special private gain or loss. Additionally, the property owner's argument concerning the Commissioner possibly retaliating because of the lawsuit relates to a possible misuse of position by the Commissioner in violation of Section 112.313(6), Florida Statutes, which will be addressed below, not to whether a voting conflict of interest existed.

Section 112.313(6), prohibits the Commissioner from using or attempting to use her official position or any resource which may be within her trust to secure a special privilege or benefit, where her actions are taken with wrongful intent for the purpose of obtaining a benefit for herself or another and are inconsistent with the proper performance of her public duties. In previous opinions, we have observed that this statute requires a determination of intent which is extremely difficult to make while rendering an advisory opinion, since intent is to be determined from an examination of all relevant circumstances. On the basis of evidence presented through investigation and hearing, we are able to make a determination of intent when a complaint has been filed concerning a given situation; however, in rendering an advisory opinion, we are hindered by a lack of access to information concerning all the circumstances of the situation as well as to information concerning the credibility of the individuals involved. See CEO 93-6, CEO 91-28, CEO 82-82 and CEO 77-129. Therefore, we will not make a final determination as to whether the Commissioner's voting in favor of the Plan Amendment after a final order in favor of the property owners was rendered by the Administration Commission constituted violations of Section 112.313(6), Florida Statutes. The information provided to us is insufficient to indicate that the Commissioner acted with wrongful intent and in a manner which was inconsistent with the proper performance of her public duties.

Accordingly, we find that under the circumstances presented the Commissioner did not violate Section 112.3143(3) by voting on the Plan Amendment which affected 2,900 acres of land, including a couple of relatively small parcels of land owned by the property owners who had filed a civil rights lawsuit against the Commissioner. We also find, consistent with the Third District Court of Appeal's decision in Izaak Walton League of America v. Monroe County, 448 So. 2d 1170 (Fla. 3d DCA 1984), that no voting conflict of interest was created by the Commissioner's prior pronouncements opposing development in the Lutz area. In that case, the Court concluded that members of a county commission were not disqualified from voting on a rezoning matter because of prior public pronouncements. See CEO 90-61 and CEO 84-118. Consequently, because we have concluded that no special private gain would have inured to the Commissioner or to her husband under the circumstances, then Section 112.3143(4) also was inapplicable.

ORDERED by the State of Florida Commission on Ethics meeting in public session on August 31, 1995, and RENDERED this _____ day of September, 1995.

__________________________

William J. Rish

Chairman