CEO 85-41 -- May 23, 1985

VOTING CONFLICT OF INTEREST

COUNTY COMMISSIONER'S SPOUSE BENEFICIARY OF TRUST OWNING STOCK IN CORPORATION SEEKING TO DEVELOP LAND WITHIN COUNTY

To: (Name withheld at the person's request.)

SUMMARY:

Under the circumstances presented, a county commissioner is not prohibited by Section 112.3143, Florida Statutes, from voting on matters affecting a development which is a project of a large, publicly held corporation, where his spouse is a beneficiary of a trust which owns shares of stock in that corporation, as those matters will not inure to the commissioner's special private gain. Here, the trust owns a relatively small amount of stock in a large, publicly held corporation.

QUESTION:

Is a county commissioner prohibited by Section 112.3143, Florida Statutes, from voting on matters affecting a development which is a project of a large, publicly held corporation, where his spouse is a beneficiary of a trust which owns shares of stock in that corporation?

Your question is answered in the negative.

In your letter of inquiry you advise that .... is a member of the Lee County Board of County Commissioners. You also advise that pending before the Commission are requests for a rezoning to a planned unit development and a development of regional impact development order for a large development within the County. The development is a project of a large, publicly held corporation. The corporation is attempting to rezone and obtain a development order on approximately 5,000 acres of land within the County, involving approximately 20,000 dwelling units and 800 acres of related commercial use.

You also advise that the Commissioner's spouse is the beneficiary of income from a trust which holds 600 of the approximately 174,000,000 outstanding shares of stock in the corporation. The income generated by this stock represents a minor portion of the annual trust income, probably in the area of 2% or less, and is estimated at less than one dollar per share. Neither the Commissioner nor his spouse has any authority in the management of the trust.

In addition, you advise that the Commissioner, his spouse, and his children have other trusts as part of an estate planning program. Several of the trusts are involved in pooled asset investment funds, which trade blocks of stock at the discretion of the fund managers and which from time to time may hold stock in the corporation.

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. 112.313(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 (Supp. 1984).]

In our view, the Commissioner is not prohibited from voting on matters related to the corporation's development, as those measures will not inure to his special private gain. Here, because of the large number of outstanding shares and the comparatively small number of shares owned by the trust of which the Commissioner's wife is a beneficiary, the gain, if any, is so remote and so speculative that we cannot say that it inures to the special private gain of the Commissioner.

Accordingly, we find that under the circumstances presented the Commissioner is not prohibited by Section 112.3143, Florida Statutes, from voting on measures affecting the corporation's development despite the fact that his spouse is a beneficiary of a trust owning shares of stock in the corporation.