CEO 05-17 -- December 7, 2005

 

VOTING CONFLICT OF INTEREST

 

AIRPORT AUTHORITY MEMBER VOTING ON MATTERS CONCERNING ROAD PROJECT NEAR HER BUSINESS

 

To:   Name withheld at person's request

 

SUMMARY:

 

An airport authority member would not be presented with a voting conflict regarding a measure to allow a developer to build a road through authority property resulting in an extension of an existing road alongside property of a business owned by the member and her husband, where the business has existing road frontage, where its products are sold to the particular described clientele and not to the general public, and where its property is restricted to uses that would not benefit from increased traffic.  Under the circumstances, any gain or loss to the business from the new road would be remote and speculative.  CEO 91-16, CEO 91-17, CEO 93-21, CEO 94-13, CEO 05-2, and CEO 05-3 are referenced.^[1]

 

QUESTION:

 

Would a member of an airport authority be presented with a voting conflict regarding a measure to allow a developer to build a road through authority property?

 

      Under the circumstances presented, your question is answered in the negative.

 

      By your letter of inquiry, a letter from the public officer in whose behalf you make inquiry, and various maps and other items accompanying the letters, we are advised that ... (member) serves as a member of the Board of the Titusville-Cocoa Airport Authority (Authority), a governmental entity organized as a dependent special taxing district.  In addition, we are advised that the member and her husband own a corporation^[2] (whose operations are located in a commerce park near the Airport) which designs and manufactures electronic test equipment (for use by other manufacturers) which is sold all over the world (mostly overseas), but which is not sold by the corporation to the general public.  Further, the member advises that the corporation's commerce park property is restricted by covenant to light, high technology industrial uses (with the restriction not allowing for retail, gasoline stations, or similar uses).  Also, we are advised that the corporation's property is served by and is contiguous to an existing paved road.  Additionally, we are advised that a developer (who wishes to residentially develop property located south of Authority property which is located south of the corporation's property) has proposed, inter alia, that the Authority allow him to build a road through Authority property as access for the residential development, ^[3] with a portion of the road being located adjacent to the corporation's property.^[4]

      Thus, you inquire as to whether a voting conflict would be created for the member when considering measures to allow the developer to build the road as set forth above.

 

      Section 112.3143(3)(a), Florida Statutes,^[5]provides:

 

VOTING CONFLICTS.—No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure 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 he or she 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(2); 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.

 

The law prohibits a local public officer from voting on matters which would inure to her special private gain or loss, to that of her relatives (e.g., husband), or to that of other enumerated persons or entities.  In interpreting the law via numerous opinions, we have found that where the impact of a vote on the public officer's or her relative's interests is uncertain at the time of the vote, the impact of the vote would be "remote and speculative" and, thus, not a voting conflict.  See, for example, CEO 91-16, CEO 91-17, CEO 93-21, CEO 94-13, and CEO 05-2.^[6]

       

        Similarly,^[7] we find, regarding the instant matter set forth above, that a voting conflict would not be created were the member to vote on the Authority measure to allow the road.^[8]  The nature of the member's corporation's business (manufacture of items sold for use by other manufactures without sales to the general public), existing paved road frontage already in use by the corporation, and restrictive covenants which negate possible retail or similar use of additional paved road frontage by the corporation combine to make any gain or loss to the corporation occasioned by the building of the road remote and speculative.^[9]

 

            Accordingly, we find that the Authority Board member is not subject to the voting conflicts law regarding measures concerning the building of a road through Authority property, under the circumstances set forth herein.

     

      ORDERED by the State of Florida Commission on Ethics meeting in public session on December 2, 2005 and RENDERED this 7th day of  December, 2005.

 

 

_________________________________

Thomas P. Scarritt, Jr., Chairman

 

 

 

 

 

^[1] Prior opinions of the Commission on Ethics are viewable on its website:  www.ethics.state.fl.us

^[2] The member advises that she holds a 7.65 percent interest in the corporation and that her husband holds an 86 percent interest.

^[3] The member advises that due to the perceived economic benefit to the Airport from a developer-financed road, the main question for the Board is where to allow the road, not whether to allow it.

^[4] We are informed by the member that the road would run north from the residential development, through Authority property, and would intersect the existing paved road serving the corporation's property (at the northeast corner of the corporation's property).  Also, we are advised by the member that a road on the east side of the corporation's property was platted and right-of-way was provided when the commerce park was built, but that the road was not paved (currently is a dirt road) and is used by the City of Titusville (to access one of its pumping stations) and others.  From the materials provided, it appears that the residential development road would occupy part of this dirt road.

^[5] Section 112.3143(3)(b), Florida Statutes, which allows officers of certain independent special taxing districts to vote in spite of the language of Section 112.3143(3)(a) is not applicable to the member, an officer of a dependent special taxing district.

^[6] We are not unmindful of CEO 05-3 (an opinion in which we found that no voting conflict would be created were a county commissioner to vote regarding a proposed new road) which recites, inter alia, that the property owned by the commissioner and her relatives is not adjacent to the proposed roadway.  We do not view the recitations in CEO 05-3 as controlling our instant decision, especially in view of the adjacency present in CEO 91-17 (an opinion in which we found no voting conflict and which was cited favorably and not receded from in CEO 05-3), because one of the main factors supporting lack of a voting conflict in CEO 05-3 was the fact that already (without the new road) there was intense development existing and underway in the vicinity of the property to which the commissioner was connected.  Likewise, in the instant situation, there already (without the road) is an existing commercial park which houses the member's corporation and her corporation already has paved road frontage and access.     

^[7] CEO 91-17 (in which we found no voting conflict) is especially analogous to the member's situation because it too involved circumstances in which, assuming arguendo an increase in value of the official's property occasioned by the vote, a "legal condition precedent" would have to be overcome for the official's property to be put to a different (i.e., commercial) usage and because it too involved abutment of the official's property to the project.  In the instant matter, assuming arguendo that the road would increase the value of the member's corporation's property, the restrictive covenants would block a different (e.g., retail) use of the property. 

^[8] We also find that votes on measures regarding another possible route for the road (a route located farther from the corporation's property) and regarding whether to allow the road to cross Authority property would not create a voting conflict, inasmuch as any gain or loss from the measures likewise would be remote and speculative.

^[9] Information from the County Property Appraiser's Office supplied by the member indicates that building of the road would not affect the value of the corporation's property; and the member represents to us that the Appraiser's Office stated that they did not know if or how the road would affect the value.  This information buttresses our determination that any gain or loss to the member's corporation's property occasioned by votes on the road matter would be remote and speculative.