CEO 06-8 -- June 14, 2006

A city councilman is not presented with a voting conflict requiring his abstention and compliance with Section 112.3143(3)(a), Florida Statutes, regarding measures concerning redevelopment of a city-owned parcel located near properties owned by the councilman or his father. Under the circumstances presented, any gain or loss to the councilman or his father (relative) would be "remote or speculative" or would not be "special." CEOs 85-77, 85-87, 86-44, 88-31, 89-32, 05-3, and 05-17 are referenced and CEO 01-8 is distinguished.¹

Would a city councilman be presented with a voting conflict under Section 112.3143(3)(a), Florida Statutes, regarding measures concerning redevelopment of a city-owned parcel located near properties owned by the commissioner or his father?

By your letter of inquiry, additional materials provided by you to our staff, and a telephone conversation between you and our staff,² we are advised that you are writing at the request of Ben Nelson (Councilman), a member of the City Council of the City of Bonita Springs. In addition, we are advised that the Councilman and his father own properties³ located near a 5.2-acre City-owned redevelopment site⁴ regarding which site the City Council has voted on measures, including measures to acquire the site and to consider presentations from two developers.⁵ Further, you advise, in view of the fact that additional measures/votes of the City Council regarding the site are expected,⁶ you ask, in behalf of the Councilman, whether he must abstain and otherwise comply with Section 112.3143(3)(a), Florida Statutes, regarding the measures/votes.

Section 112.3143(3)(a), the portion of the voting conflicts law (contained within the Code of Ethics) which is applicable to local, elected public officers (such as city council members), 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 requires a public officer's declaration of interest, abstention from voting, and timely filing of CE Form 8B (memorandum of voting conflict) regarding measures/votes which would inure to the special private gain or loss of the officer, his relative,⁷ his principal/employer, or certain other enumerated persons or entities.

In past opinions, we have found no voting conflict in situations in which there was uncertainty at the time of the vote as to whether there would be any gain or loss to the officer (or an enumerated person or entity), reasoning that any gain or loss would be remote or speculative. See, for example, CEO 05-17 (airport authority member voting on road project near her business), CEO 05-3 (county commissioner and relatives owning interests in parcels near proposed road), CEO 89-32 (city commissioner voting on proposed development near his restaurant), CEO 88-31 (city commissioner voting on annexation of property which adjoins property in which she owns an interest), CEO 86-44 (city council member voting on site plan for shopping center adjacent to his property), CEO 85-87 (city council member voting on redevelopment of property located next to bank which employs him), and CEO 85-77 (school board member owning business near proposed location of school district administrative complex). Regarding your inquiry, we adhere to this precedent and find that the Councilman is not subject to Section 112.3143(3)(a) regarding measures/votes concerning the site as set forth in your inquiry, inasmuch as their effects on the Councilman's properties or the property of his father would be remote or speculative.⁸ In so finding, we distinguish our finding rendered in CEO 01-8 (village council member voting on matters concerning property adjoining his on which the village council proposes to build a governmental center). Unlike the instant inquiry in which the Councilman and his father own developed properties, the situation in CEO 01-8 involved the village council member's property being the only large, undeveloped parcel of property left adjacent to the public project property, a situation which we apparently viewed as supporting a possible voting conflict.⁹

Accordingly, under the scenario set forth in your inquiry, we find that the Councilman is not subject to Section 112.3143(3)(a), Florida Statutes, regarding measures/votes concerning the City redevelopment project.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 9, 2006 and RENDERED this 14th day of June, 2006.

^[1]For prior opinions of the Commission on Ethics go to www.ethics.state.fl.us
^[2]By telephone, you advised, inter alia, that the Councilman's wife is an uncompensated member of a group of people who advocate more citizen involvement in public affairs, including City Council affairs concerning the redevelopment project.
^[3]According to materials you submitted, including maps, the Councilman owns three properties and his father owns one property, all of which appear to be parcels of a size and use common to the area and each of which appears to be far smaller than the redevelopment site. Two of the Councilman's three properties are located to the north of the site, the third to the south, and his father's is located to the north, you advise. Additionally, you advise that the Councilman's property to the south is zoned commercial, permitting a wide range of uses (currently leased to a pool cleaning company), and that the Councilman has no plans to change the use of the property (which would require City action, such as a rezoning). The Councilman's other two properties, you advise, are his personal residence and a residential rental property. The father's property, you advise, is leased to commercial tenants. The two maps supplied with your inquiry show about 620 and 1000 parcels, respectively, including the 4 parcels owned by the Councilman and his father, you advise.
^[4]You advise that the site met the definitional standards of blight, that the site was acquired for redevelopment, and that the site will not be sold as "surplus property" but will be sold to a developer to "'kick start' the City's redevelopment of the Old 41 Area."
^[5]You advise that the Councilman abstained earlier this year on a measure concerning the redevelopment project. At the time, you advise, our staff felt that a prior opinion of ours (CEO 01-8) could (depending on factual circumstances) support the existence of a voting conflict; consequently, you submitted the instant matter for our consideration.
^[6]Expected measures/votes include approval of conceptual terms, letter of intent and formalized agreement, the zoning process, and sale of the property to the developer.
^[7]One's father is included within the applicable definition of "relative." Section 112.3143(1)(b), Florida Statutes.
^[8]We also find that the Councilman is not presented with a voting conflict under the instant inquiry because, assuming arguendo gain or loss to him or his father via the measures/votes, we find that the gain or loss would not be "special," due to the large number of similar parcels (apparent from the maps submitted) which would be affected. See CEO 01-8 and opinions cited therein.
^[9]Even CEO 01-8 itself did not find an actual voting conflict. Rather, we found that "because the [c]ouncil member's property is the only large undeveloped parcel of property left adjacent to the [village governmental center] property, we are unable to find that the value of the [c]ouncil member's property would not be impacted by the siting of the governmental center."