CEO 87-27 -- April 23, 1987

CONFLICT OF INTEREST

TOWN COUNCIL MEMBERS VOTING ON REZONING OF TOWN

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

SUMMARY:

Town council members are not prohibited by Section 112.3143, Florida Statutes, from voting to rezone all of the single-family residential property within the town to commercial property in order to sell the property to a single purchaser, where the council members are homeowners in the town. While the council members are potential distributees of any sale, the rezoning would affect all of the residents of the town, who would be compensated based on an equitable formula. CEO's 83-50, 85-62, and 85-5 are referenced.

QUESTION:

Are town council members prohibited by Section 112.3143, Florida Statutes, from voting on the rezoning of all single-family residential property within the town to commercial property in order to sell the property to a single purchaser, where the council members are homeowners in the town and are potential distributees of the proceeds of any such sale?

Your question is answered in the negative.

In your letter of inquiry you advise that the Town of Golfview is one of the oldest incorporated municipalities in Palm Beach County, and consists of 116.973 acres with a population of 210. Golfview is zoned single-family residential except for strip commercial zoning along the western boundary of the town. Over the years the area has changed from a rural setting to a highly urbanized environment. The Town is adjacent to the Palm Beach International Airport, and the County is in the process of building a new airport terminal which is closer to the Town than the existing terminal, thereby intensifying the urban character of the area.

These changes have prompted local homeowners to discuss the possibility of rezoning the single-family residential area of Golfview to commercial and selling this area as one parcel to a single purchaser for a multi-use commercial/office/hotel complex. A property owners' association was formed as a result of these discussions. This association has conducted preliminary discussions with potential purchasers. The association has proposed that if single-family residential properties are rezoned commercial and sold to a single purchaser, each homeowner will be compensated based on an equitable formula considering the size of the property and the value of existing improvements to the property. It is vital that 100 percent of the homeowners agree to this parcel, and, therefore the association has circulated an agreement which would bind homeowners to the concept and the distribution formula.

You question whether members of the Town Council who are also homeowners in the Town would be prohibited by Section 112.3143, Florida Statutes, from voting to rezone the single-family residential property of the Town to commercial property in order to sell the property to a single purchaser. Each of the Council members would be a potential distributee of the proceeds of the sale should the rezoning and the sale occur.

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 (1985).]

This provision prohibits a public officer from voting on any measure which inures to his special private gain. In previous opinions, we have advised that the requirements of this provision do not turn on whether the official's vote is for or against a measure, but rather on whether the interest he holds is such that he would gain or lose as a direct outcome of the decision. See CEO 83-50. We also have advised that whether a measure inures to the "special" gain of an officer will turn in part on the size of the class of persons who stand to benefit from the measure. In CEO 85-62, we advised that a city council member was not prohibited by Section 112.3143, Florida Statutes, from voting on an ordinance providing for site-specific zoning for a redevelopment area where the council member's corporation owned a one-acre parcel of property within the several square miles included in the redevelopment area. In that instance, we determined that the size of the class of persons affected by the rezoning measure was large enough so that any gain on the part of the council member would not constitute "special" gain.

Similarly, in CEO 85-5, we found that a town commissioner and zoning board member was not prohibited from voting on the rezoning of a mobile home park by virtue of the fact that he lived in the park. There, the rezoning appeared to affect equally all of the park residents, who comprised approximately 90 percent of the town's population. Therefore, the class of persons affected by the rezoning measure was large enough so that we were able to conclude that any gain received by the subject officer as a park resident would not be "special" private gain.

In the present case the rezoning measure will affect all of the single-family residential property owners in the Town. If and when a purchaser is found for the property, all homeowners will be treated alike under the provisions of the compensation formula.

Accordingly, we find that the Town Council members are not prohibited by Section 112.3143, Florida Statutes, from voting to rezone the single-family residential property within the Town to commercial property.