CEO 01-8 -- June 12, 2001
VOTING CONFLICT
VILLAGE COUNCIL MEMBER VOTING ON MATTERS CONCERNING PROPERTY ADJOINING HIS ON WHICH THE VILLAGE COUNCIL PROPOSES TO BUILD A GOVERNMENTAL CENTER
To: Name withheld at person's request (Fort Lauderdale)
SUMMARY:
A Village Council member may be prohibited by Section 112.3143(3)(a), Florida Statutes, from voting on the siting of a governmental center on a tract of land adjacent to which the Village Council member owns property. Because of the size of the Council member's adjoining parcel of land and the fact that it remains essentially undeveloped, it appears that any benefit inuring to the Village Council member as a result of the vote of the siting of the governmental center would not be remote or speculative. There are circumstances present here which are unique to the Village Council member and to his adjoining property by which he could stand to gain or lose more than any of the other owners of property in the vicinity of the proposed governmental center by the Council's voting on the siting of the governmental center.
The Village Council member is cautioned that absent the condemnation of his property by the Village Council, he is prohibited by Section 112.313(3), Florida Statutes, from selling his property to the Village Council, even at cost.
QUESTION:
Would measures related to the siting of a governmental center on a tract of land which is adjacent to a parcel of land owned by a member of the Village Council inure to the special gain or loss of the Village Council member, thereby precluding him from voting on such measures pursuant to Section 112.3143(3)(a), Florida Statutes?
Under the circumstances presented, your question may be answered in the affirmative. However more information is needed for a definitive answer.
In your letter of inquiry and responses to questions of staff, you advise that you are requesting this opinion on behalf of . . . , a member of the Village of Islamorada Village Council. You ask whether a voting conflict of interest would be created by the Council member's voting on the siting of a proposed Village governmental center on property which adjoins property he owns, as well as on various other matters involving the adjoining property which may come before the Village Council.
You advise that the Village of Islamorada ("Village") consists of four (4) islands, one of which is Plantation Key where the Council member owns an 11.75 acre parcel of land. The Island of Plantation Key, you write, consists of 280 commercial parcels of land and 3,500 residential parcels. You advise that approximately two-thirds of the Village's population resides on Plantation Key.
You advise further that two vacant shells[1] of buildings approximately 24 feet by 30 feet are located on the Council member's property. Although power and water were connected to the lots, you write, there currently is no existing utility service. You further advise that the Council member's parcel is adjacent to a 47.5 acre parcel known as Plantation Yacht Harbor ("PYH") on which the Village Council is considering establishing a governmental center. We are advised that there also are approximately eight (8) to ten (10) other parcels of land adjacent to the PYH parcel.
The exact location of the governmental center on the 47.5 acre tract has not yet been determined, you write. However, you relate that some of the drawings that have been prepared by consultants locate the governmental center on the corner of the PYH property which is closest to US1.[2]
You also advise that because the PYH parcel previously had been used as a resort and marina and already has the necessary connections, no new utilities would have to be brought to it and no new easements would have to be sought in the event that a governmental center is built on the site. The parcel's existing buildings are connected to all of the required utilities and infrastructure, i.e., water, sewer, electric, roads, etc., you write. While the zoning on the property[3] would have to be changed in order for the Village to establish a governmental center or other public facility on the PYH parcel (which, in all likelihood, would devalue the PYH parcel), you advise that it is unlikely that this change in zoning would affect the value of the Council member's property.
You also relate that the down-zoning of the PYH property to Government Use (GU) would not affect the current zoning on the Council member's property. You relate that the portion of the Council member's property which is adjacent to the PYH parcel is currently zoned Destination Resort (DR), while the portion of the Commissioner's property which lies across US1 is zoned NA.[4]
The DR zoning designation, you write, permits the Council member to build up to 15 housing units per acre, which would permit him to build approximately 105 hotel or condominium units. Provided the commercial moratorium is lifted, the Council member also has a vested right to build an "array" of commercial endeavors, you advise. Nevertheless, you indicate that the Council member has no plans to ever develop his parcel. He only purchased it, you advise, to stop development from occurring on it. Believing that his parcel should be used as a public park and never commercially developed, you relate that the Council member has announced publicly that he would like to sell his parcel to the Village for his costs.
You relate further that the Council member's 11.75 acre parcel might either increase or decrease in value in the event the Village decides to locate its governmental center or other public facility on the PYH property. However, currently, you advise, there is a building moratorium on commercial development on the Council member's property, as well in the rest of Monroe County, which will not affect or apply to the building of a governmental center or other public facility on the PYH parcel or on any other parcel.[5]
You suggest that because of the great number of properties in close proximity to the PYH parcel that might be affected by the building of the governmental center on the PYH parcel, any effect that the construction of the governmental center may have on the PYH parcel, which is uncertain at this point, would not be "special" for purposes of the application of the voting conflicts prohibition. Although there are only eight (8) to ten (10) parcels of land immediately adjacent to the PYH parcel, you advise that there are over 150 lots containing homes and condominiums on just two (2) of these parcels and that there are about a dozen parcels directly across US1 from the PYH parcel. You claim that all of these lots and parcels of land would be similarly affected by the building of the governmental center. Furthermore, you relate that there are 30 other parcels of land within 100 feet of the PYH parcel and about 1,000 parcels of land in a one mile radius from the PYH parcel. Consequently, there exists a substantially large group of surrounding property owners who conceivably would be similarly affected by the location of a governmental center on the PYH parcel, you suggest. You also suggest that because the PYH parcel is large enough to accommodate any government development or other municipal use which might be contemplated by the Village Council, there would be no potential benefit to the surrounding parcels as prospective acquisition sites by the Village Council.
Relevant to your inquiry is the following provision of the Code of Ethics for Public Officers and Employees:
VOTING CONFLICTS.--No county, municipal, or other local public officer shall vote in an official capacity upon any measure which inures 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 the officer 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 provision prohibits the Council member from voting on matters which would inure to his special private gain or loss, to the special private gain or loss of a principal by whom he is retained, or to the special gain or loss of his relative or business associate.
REMOTE AND SPECULATIVE TEST
As we noted in CEO 91-16 and CEO 91-17, we have found no special private gain to exist in situations where there was uncertainty at the time of the vote as to whether there would be any gain or loss to the public officer. Both of these opinions dealt with the question of whether city council members could vote on the alignment of a proposed road project, where the council members were not directly affected by the configuration of the roads. We found that although property values in the area might be enhanced by commercial development as a result of the project, the council members' properties still would have to be rezoned for commercial use. Therefore, we concluded that the road project would not inure to the council members' "special private gain" because any benefit to the Council members would be too remote and speculative.
Similarly, we found no voting conflict to exist in CEO 89-32, CEO 88-31, CEO 86-44, CEO 85-87, and CEO 85-77 because any resulting benefits under the circumstances presented were determined by us to be too remote and speculative. In CEO 89-32 we found, among other things, that a city commissioner was not prohibited from voting on a measure concerning the realignment or reconfiguring of parking spaces or the landscaping and replacing of a public right-of-way, where customers of the commissioner's nearby restaurant sometimes used the available parking in the right-of-way. We were unable to conclude there that an adjustment of existing parking spaces[6], none of which were specifically reserved for the commissioner's business, would inure to the special private gain of the commissioner or his restaurant. We also could not conclude that landscaping or re-paving of the public right-of-way would create a special private gain to the commissioner or to his business. Any benefit created by these actions, we wrote, would be too speculative for us to conclude that he was required to abstain from voting.
In CEO 88-31, we also advised that a city council member was not prohibited from voting on the annexation of property which adjoined property in which she owned an interest. The developer seeking annexation planned to develop the property into a large planned unit development ("PUD"). We opined that any gain or loss resulting to the city council member from the annexation of the subject property would be too remote and speculative to allow us to conclude that her voting on the annexation would inure to her "special private gain."
In CEO 86-44, we opined that a city council member was not prohibited from voting on a site plan for a shopping center which was to be located adjacent to the florist store which he owned and operated. There, any parking spaces or land lost because of the nature of the final site plan were to be replaced. Therefore, we concluded that any impact that the proposed mall would have on the florist business would be remote and speculative.
In CEO 85-87 we also advised a city council member who was vice president of a bank that he was not prohibited from voting on the sale and redevelopment of property located one block from the main office of the bank. We concluded that any gain or loss resulting to the bank from the redevelopment project in terms of the value of the land owned by the bank or its effect on the bank's business would be too speculative and remote to conclude that the bank would receive any "special gain" as a result of the redevelopment project.
And finally, we advised a school board member in CEO 85-77 that he was not prohibited from voting on matters relating to the use of the school district's property where he owned a clothing store near the site of the proposed school district administration complex. We found that although presumably all retail businesses in the area would benefit from the construction of a large office complex, it would be purely a matter of speculation and conjecture on our part for us to conclude that his business would derive any special gain from the school board's proceeding with its original plan, from shifting the location of the administration complex, or from declaring the property surplus and leaving it undeveloped.
Here, however, we are unable to find that with the required utilities and infrastructure already in place on the PYH property, and with the down-zoning of the PYH property to GU with its consequent devaluation of the property, the value of the Council member's property would not be affected by the proposed building of a governmental center on the PYH property, where the zoning on the Council member's property and the uses which could be made of his property would not immediately change or be affected by the proposed building of the governmental center. Although any gain or loss to the Council member's property as a result of the proposed building of a governmental center on the PYH property is uncertain at this time, because the Council member's property is the only large undeveloped parcel of property left adjacent to the PYH property, we are unable to find that the value of the Council member's property would not be impacted by the building of the governmental center. Therefore, in applying the remote and speculative test here, we are unable to determine without more information concerning the possible impact of the siting of the governmental center on the value of the Council member's property that no voting conflict of interest would exist were the Council member to vote on the building of the governmental center on the PYH property, that is, we are unable to determine that the effect of his vote on his property would be "remote and speculative."
SIZE OF CLASS TEST
We also have analyzed whether a particular vote would inure to the "special gain or loss" of a public officer by examining the "size of the class" of persons who stand to benefit or lose from the measure to be voted upon. See CEO 77-129. Where the class of persons is large, we have concluded that "special gain" will result only if there are circumstances unique to the officer under which he or she stands to gain more than the other members of the class. Where the class of persons benefiting from the measure is extremely small, we have concluded that the possibility of "special gain" is much more likely. See CEO 90-56. In other words, we have long held that when a measure affects a class of sufficient size, the gain is of a "general" nature and thus is not the "special" gain addressed by the voting conflicts law.
We also typically have concluded that no voting conflict was presented in situations where the interests of the public official involved one percent or less of the class. See CEO 78-96 (38 out of 5,000 acres involved); CEO 84-80 (1 out of 500 persons whose property would be down zoned); CEO 85-5 (90% of 250 residents affected); CEO 87-18 (300 out of 29,000 acres); CEO 87-27 (involving the rezoning of a town having a population of 210); CEO 87-95 (650 property owners affected); CEO 91-18 (385 other property owners in the area affected by varying degrees); CEO 92-20 (land-use measures affecting 1,000 condominium units and specifically 500 which could have their northerly view impeded by high-rise construction on their north); 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 persons is not so small a class that gain to a firefighter pension board trustee, as an individual member of the class, would be "special"); and CEO 96-12 (owner of four non-residential parcels out of 605 similar parcels affected by a proposed convention center project.)
In contrast, in CEO 90-64, we found that a city commissioner was prohibited from voting on a renovation project which would benefit property in which he owned an interest. There, the commissioner owned a 50% interest in one of 55 parcels which was to be affected by an assessment, and the parcels were owned by more than 40 persons or entities; moreover, the property's frontage was 2.7% of the total frontage upon which the assessment was to be based. Thus, we concluded that despite the commissioner's low proportionate share of the benefit of the renovation and of the relatively low assessment, the measure would inure to the "special private gain" of the commissioner because the situation involved a clearly defined class that consisted of a relatively small number of persons whose interests would be affected by the outcome of the vote on the project. See also CEO 92-37 (two percent or eight percent of the property to be affected or 5 of 60 sites and 5 of 168 sites is of sufficient size to result in a "special" gain); CEO 93-19 (measure to construct a sidewalk affecting 40 homes would not affect enough persons in order for its effect not to be considered "special" under the voting conflicts law); and CEO 99-12 (airport authority commissioner's home was one of 20 homes that would be directly affected by the extension, improvement, and realignment of an airport road and a planned greenway in the quadrant of the airport fronting the commissioner's home).
Under the facts presented, although you indicate that there are only eight (8) to ten (10) parcels immediately adjacent to the PYH parcel, on two of those parcels, you have advised, are over 150 lots containing homes and condominiums, and about a dozen parcels lie directly across US1 from the PYH parcel. Therefore, if we consider the class of persons who potentially could be affected by the siting of the governmental center on the PYH property, as you suggest, to be comprised of the owners of land parcels, home lots, and condominiums immediately adjacent to the PYH property, then the class is comprised of approximately 156 to 158 property, home, and condominium owners (150 owners of lots containing homes or condominiums plus the owners of the six (6) to (8) other parcels of land adjacent to the PYH parcel.) If we add the owners of the 12 parcels directly across US1 from the PYH parcel to this number, then the class is made up of approximately 168 to 170 land parcel, home lot, and condominium owners[7] who conceivably could be similarly affected by the building of the proposed Village governmental center on the PYH property.[8]
Under your proposed application of the "size of class" test, we would find that the class of owners who conceivably could be affected by the proposed building of the governmental center is sufficiently large (the Council member is only 1 out of 168 or 170 or approximately 0.6% of the class) that any gain or loss inuring to the Council member would not be "special" within the meaning of Section 112.3143(3)(a), and he would not be prohibited by Section 112.3143(3)(a) from voting on the siting of the governmental center on the PYH property. However, we do not find that the Council member's interests even closely approximates the ownership interests of the other property owners. The Council member clearly holds the largest parcel or parcels of undeveloped property adjacent to or in close proximity to the PYH property. Therefore, we find that the Council member belongs to a class of one (1). Consequently, the "size of class" test would not apply here to negate the possible voting conflict.
Accordingly, we are of the opinion that, because of the size of the Council member's property and the fact that it remains essentially undeveloped, it appears that there are circumstances unique to the Council member or to his property by which he might stand to gain or lose more than the other members of the class of property owners as a result of the Village Council's voting on the siting of the governmental center on the PYH property.
You also have asked us to opine further on whether the Council member's voting on the following matters involving the PYH property would be prohibited by Section 112.3143(3)(a):
The approval of a master plan showing PYH's uses;
The colors of structures;
The purchase of and design of landscaping;
Improvements to the property for purposes of coming into compliance with the Americans with Disabilities Act;
The possible placement of a Village fire station on the property, including its location;
The acceptance of a statute as a donation and determining its placement;
The location of ball fields;
Improvements to the existing swimming pool;
The construction of a new pool;
Submission of grant applications for funding;
Improvements to and continued operation of the marina;
The operation of a gasoline dispensing facility;
The sale of motel development rights to potential off-site developers;
Financing structures for capital improvements (including loans, bond issues, etc.);
The selection of an architect to design or contractors to construct or maintain any improvements;
Vendor contracts/leases regarding a water sports facility, dive shop and/or food concessions;
The rate for rental of marina slips;
The adoption of park regulations at PYH;
Park signage;
The partitioning, sale or long term rental of a portion of PYH; and
Fencing around or on the property, including size and type.
Using the same analysis that we used with respect to the Council member's voting on the siting of the governmental center on PYH property, we find that because of the uncertainty as to whether a special gain or loss would inure to the Council member as a result of such PYH property-related measures as the colors of structures, the purchase of and design of landscaping, the acceptance of a statue as a donation and its placement, the improvements to and continued use of the marina, the operation of a gasoline dispensing facility,[9] the sale of motel development rights to potential off-site developers, the selection of an architect to design or contractors to construct or maintain improvements, vendor contracts/leases regarding a water sports facility, dive shop or food concessions,[10] and park signage, any gain or loss resulting from the Council member's and/or the Village Council's vote would not be "special" within the meaning of Section 112.3143(3)(a). Therefore, we are of the opinion that he could vote on such measures.
Furthermore, because we are of the opinion that the Council member's votes on such PYH property-related measures as improvements to the PYH property to comply with the Americans with Disabilities Act, the submission of grant applications for funding, financing structures for capital improvements (including loans, bond issues, etc.), and the rate of rental of marina slips would not inure to his special gain or loss, and because we find that his voting on the submission of grant applications and on financing structures would appear to be preliminary or procedural to the Village Council's taking some action that could directly affect the property, Section 112.3143(3)(a) would not be implicated by his voting on such measures. We find that these matters are similar to those discussed by us in CEO 83-50, where we opined that, because the decision of whether to amend a motion concerning the scheduling of the extension of a road would not affect a metropolitan planning organization (MPO) member's property, no voting conflict of interest was created by the MPO member voting to amend the motion, where part of some property owned by the MPO member would have to be acquired as right-of-way for the proposed road. We wrote that, generally, preliminary or procedural motions do not "inure" to the benefit of a public officer or a principal by whom he may be retained. Applying that holding here, we are of the opinion that while the PYH property-related measures in this group are not amendments to motions, they should be considered to be preliminary or procedural to the Village Council's being able to take some action or actions which would directly affect the PYH property, such as approving the construction of improvements on the property.
However, we are more reluctant to decide and do not decide here whether the Council member would be prohibited from voting on such PYH property-related measures as the size and type of fencing to be built on or around the property, the possible placement and location of a Village fire station on the property, the location of ball fields, and the construction of a new swimming pool. Because it is conceivable that the Council member would derive a special gain or loss as a result of his voting on such measures, we are unable to determine whether a prohibited voting conflict of interest would be created by the Council member's voting on such measures without being provided additional, specific information concerning the measures. For example, it is conceivable that the Council member's and/or the Village Council's voting on the placement and size and type of fencing to be placed on or around the property may directly affect the security and aesthetic value of the Council member's property; the possible placement and location of a Village fire station on the PYH property may affect the Council member's insurance rates and/or the desirability of his property due to the noise attendant to the operation of a fire station on the site; depending on the prospective use of the Council member's property, the location of ball fields and construction of a new pool may affect the desirability and value of the Council member's property due to the noise, lighting, and traffic attendant to such facilities or due to the location of a recreation area in close proximity to the adjacent property. If the Council member anticipates one of these measures coming before the Village Council for a vote, we recommend that he seek an additional opinion from us.
After reviewing the October 1999 Plantation Yacht Harbor Master Plan Report, and in view of the size and proximity of the Council member's essentially undeveloped property to the PYH property, we also find that we do not have sufficient information to decide whether the Council member would derive any possible gain or loss from his voting on such PYH property-related measures as the approval of a master plan showing PYH's uses and the adoption of park regulations. Additionally, because we do not have sufficient information about the possible partitioning, sale, or long term rental of any portion of the PYH property and their affects upon the Council member's property, we also decline to render an opinion on whether the Council member could vote on such measures.
Finally, because you have indicated that the Council member has announced publicly that he would like to sell his parcel of land to the Village for his costs, we must caution that he not run afoul of Section 112.313(3), Florida Statutes, which provides as follows:
DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:
(a) October 1, 1975.
(b) Qualification for elective office.
(c) Appointment to public office.
(d) Beginning public employment.
[Section 112.313(3), Florida Statutes.]
This provision prohibits the Council member from acting in his official capacity, as a public officer, to purchase, among other things, any realty for his agency from a business entity of which he is an officer, partner, director, or proprietor, or in which he owns more than a five percent interest, and from selling any realty to his agency in his private capacity. One is deemed to be acting in his or her official capacity to purchase or lease goods, services, or realty when a body or board of which he or she is a member acts to purchase or lease such goods, services, or realty. See CEO 76-213 and CEO 95-13. Because Section 112.313(3) does not apply only when a sale is being made to gain a profit, the Council member should be advised that, absent the condemnation of the property by the Village Council, he is prohibited from selling his property to the Village Council, even if he is selling the property at cost.
ORDERED by the State of Florida Commission on Ethics meeting in public session on June 7, 2001 and RENDERED this 12th day of June, 2001.
__________________________
Howard Marks, Chair
[1]The shells, you advise, have floors, walls, and open holes for windows. Neither shell has a roof.
[2]The diagram of the properties that were provided for our review show the proximity of the PYH property to the Council member's property. It indicates that the Council member's property is divided by US1. Nevertheless, the largest segment of the Council member's property appears to adjoin the PYH property which also is fronted by US1.
[3]The diagram that you provided to staff indicates that the PYH property is zoned DR, which you indicate stands for "destination resort" and allows for development of planned tourist areas, including a hotel and single-family residences.
[4]The NA zoning designation, you advise, stands for "native area" and allows for construction of a residential house only upon a 4:1 ratio, that is, a minimum of four (4) acres is required.
[5]In addition to the County building moratorium, we are advised that the Village Council also imposed a building moratorium effective August 28, 1998. The Village's moratorium restricts new non-residential construction pending the adoption of a comprehensive plan for the Village. This building moratorium, you advise, also will not affect the Village's plans to construct a governmental center and/or any related public facilities.
[6]The adjustment in number of parking spaces did not involve a decrease in number of spaces.
[7]These figures assume that there is only one owner for each home lot, condominium and parcel of land either adjacent to or directly across US1 from the PYH parcel.
[8]Although there is uncertainty as to whether there would be any effect on the adjacent home lot, condominium, and parcel owners resulting from the building of the governmental center on the PYH parcel, we have not been provided any information that would indicate that these adjacent home lot, condominium, and parcel owners would not all be similarly affected by the building of the governmental center on the PYH property.
[9] The brochure that you attached to your responses to staff's questions indicate that the marina had previously sold fuel.
[10]The brochure that you provided indicates a water sports facility, dive shop, restaurant and grille were operated by the resort/marina on the PYH property.