CEO 86-13 -- February 20, 1986

VOTING CONFLICT OF INTEREST

CITY COMMUNITY REDEVELOPMENT AGENCY MEMBERS WITH INTEREST IN PROPERTY WITHIN REDEVELOPMENT AREA

To: Mr. Paul H. Chipok, Assistant City Attorney, City of New Smyrna Beach

SUMMARY:

Community redevelopment agency commissioners having an interest required to be disclosed under Section 163.367(2), Florida Statutes, immediately should file a memorandum of voting conflict disclosing the nature of that interest with the redevelopment agency and should announce the interest at a meeting of the agency, in accordance with Section 112.3143(3), Florida Statutes. If a commissioner subsequently is faced with a voting conflict under Section 112.3143(3), he is not required to abstain from voting but should publicly state his interest at the meeting and file a memorandum of voting conflict.

QUESTION:

What are the requirements in voting conflict of interest situations under Section 112.3143, Florida Statutes, for members of a community redevelopment agency who have interests in property located within a community redevelopment area?

Your question is answered by reference to the following provisions of law. Section 163.367, Florida Statutes (1985), provides:

(1) The officers, commissioners, and employees of a community redevelopment agency created by, or designated pursuant to, s. 163.356 or s. 163.357 shall be subject to the provisions and requirements of Part III of Chapter 112.

(2) If any such official, commissioner, or employee presently owns or controls, or owned or controlled within the preceding 2 years, any interest, direct or indirect, in any property which he knows is included or planned to be included in a community redevelopment area, he shall immediately disclose this fact in the manner provided in Part III of Chapter 112. Any disclosure required to be made by this section shall be made prior to taking any official action pursuant to this section.

(3) No commissioner or other officer of any community redevelopment agency, board, or commission exercising powers pursuant to this part shall hold any other public office under the county or municipality other than his commissionership or office with respect to such community redevelopment agency, board, or commission.

Section 112.3143, Florida Statutes (1985), provides:

(1) As used in this section, the term "public officer" includes any person elected or appointed to hold office in any agency, including any person serving on an advisory body.

(2) Except as provided in subsection (3), no public officer is prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure which inures to his special private gain or the special gain of any principal by whom he is retained shall, 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.

(3) 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 163.367(2) requires a community redevelopment agency member to disclose immediately in the manner provided in Part III, Chapter 112, Florida Statutes, the fact that he presently owns or controls, or owned or controlled within the preceding two years, any direct or indirect interest in any property which he knows is included or planned to be included in a community redevelopment area. Although Part III of Chapter 112 (the Code of Ethics for Public Officers and Employees) contains several provisions requiring the disclosure of private financial interests, none of these provisions specifically relate to the disclosure of an interest in real property which may be affected by the actions of one's agency. However, the provision which would appear most relevant for local officials is Section 112.3143(3), which requires a public announcement at a meeting of one's agency, as well as the filing of a memorandum to be incorporated in the minutes of the meeting. Therefore, it is our view that a community redevelopment agency member who has an interest which must be disclosed under Section 163.367(2) should make that disclosure in the manner provided in Section 112.3143(3), as outlined above.

In addition to the requirements of Section 163.367(2), members of a community redevelopment agency are bound by the requirements of Section 112.3143. Section 112.3143(3) generally requires a local official to abstain from voting on matters in which he has a conflict of interest, to announce publicly the nature of the conflict, and to file a written memorandum within 15 days as part of the minutes of the meeting. Commissioners of community redevelopment agencies, however, specifically are not prohibited from voting. Therefore, such commissioners may vote on matters affecting their interests but still would be required to publicly announce the conflict and file a voting conflict memorandum.

We do not understand that any action taken by the redevelopment agency necessarily would affect all property located in the area or necessarily would trigger the disclosure requirements of Section 112.3143(3). Disclosures under that provision are required only where the measure under consideration would inure to the "special private gain" of the commissioner or to the "special gain of any principal . . . by whom he is retained." As we advised in CEO 85-5, CEO 85-62, and CEO 85-87, the question of whether a particular measure will result in "special" gain generally will turn on the size of the class of persons benefited and the nature and extent of any gain received. Clearly, if the measure under consideration by the redevelopment agency would affect only property in which a commissioner has an interest, the commissioner would be required to announce the conflict and file a voting conflict memorandum. On the other hand, for example, if the measure under consideration involved improvements which would affect all property in the redevelopment area equally, the measure would not inure to the "special" gain of any property owner.

Accordingly, if a community redevelopment agency commissioner has an interest required to be disclosed under Section 163.367, Florida Statutes, the commissioner immediately should file a memorandum of voting conflict disclosing the nature of his interest with the redevelopment agency and should announce his interest at a meeting of the agency. The necessity of making an oral announcement at a meeting and of filing a voting conflict memorandum on a particular matter coming before the agency would have to be determined on a case-by-case basis. As you have provided no details regarding any particular matter coming before the Community Redevelopment Agency, we are unable to give more specific advice.