CEO 88-31 -- April 28, 1988

VOTING CONFLICT OF INTEREST

CITY COUNCIL MEMBER VOTING ON ANNEXATION OF PROPERTY

WHICH ADJOINS PROPERTY IN WHICH SHE OWNS AN INTEREST

To: Ms. Kathy Schmidt, Councilman, City of Venice

SUMMARY:

A city council member is not prohibited by Section 112.3143, Florida Statutes, from voting on the annexation of property which adjoins property in which she owns an interest. Any gain or loss resulting from the annexation of the property would be too remote and speculative to constitute "special private gain" requiring the council member to abstain from voting. CEO's 85-17, 85-46, 85-77, and 85-87, are referenced.

QUESTION:

Are you, a city council member, prohibited by Section 112.3143, Florida Statutes, from voting on the annexation of property which adjoins property in which you own an interest?

Your question is answered in the negative.

In your letter of inquiry you advise that you are a member of the Venice City Council. You further advise that the owner of a large tract of land located east of the City has requested annexation of his property. The property is contiguous to the City on the north end of the west boundary of the property. The owner plans to develop the property into a planned unit development incorporating various types of housing and a golf course. He has stated that he intends to develop the property in the County if the City refuses annexation.

You own five acres of land with your former husband which is adjacent to the south end of the west edge of the property which may be annexed. Presently your property is not contiguous to the City on any side; however, it will become contiguous if the large tract of land is annexed. You question whether you may vote on the annexation of this 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 (1987).]

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

In CEO 85-17, we advised that a city commissioner was prohibited by Section 112.3143, Florida Statutes, from voting on a petition for annexation of property owned by a developer who employed him. There, it appeared that the annexation petition would inure to the special gain of the developer. In a sequel to that opinion, CEO 85-46, we advised that the city commissioner was not prohibited by Section 112.3143, Florida Statutes, from voting on a petition for annexation of property, where the development company which employed the commissioner had sold the property but retained a mortgage on the property and also owned adjoining property. Under the circumstances presented, we determined that any gain or loss derived by the commissioner's employer from the annexation would be too remote and speculative to inure to the special gain of the employer.

Similarly, it is our opinion that any gain or loss resulting to you from the annexation of the subject property would be too remote and speculative to allow us to conclude that such matter would inure to your "special private gain." We have found no special private gain to exist in other instances in which there was uncertainty at the time of the vote as to whether there would be any gain or loss to an officer. For example, in CEO 85-77 we advised that a school board member who owned a retail clothing business near the site of proposed school district administration complex was not prohibited from voting on matters relating to the use of the school district's property. Also, in CEO 85-87 we advised that a city council member who was the vice president of a bank was not prohibited from voting on the sale and redevelopment of property located one block from the main office of the bank.

Accordingly, we find that you are not prohibited by Section 112.3143, Florida Statutes, from voting on the annexation of property which adjoins property in which you own an interest.