CEO 92-52 -- December 3, 1992

VOTING CONFLICT OF INTEREST

CITY FINANCIAL ADVISORY COMMISSION CHAIRMAN VOTING ON

MEASURE INVOLVING ROAD PROJECT AND SUBSEQUENTLY

PURCHASING PROPERTY ADJACENT TO ROADWAY

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

SUMMARY:

A city financial advisory commission chairman was not prohibited by Section 112.3143(3), Florida Statutes, from voting on a resolution encouraging the city commission to explore with the county all available means of funding a road widening project, when at the time of the vote the chairman was in the process of purchasing property along the roadway. Not only was there no special private gain to the chairman due to the length of the roadway and the number of parcels the project was anticipated to affect, but the direct outcome of the commission's resolution on the project's schedule was remote and speculative. CEO's 91-17, 90-66, 90-56, 88-41, 87-86, 85-46, 77-129, and 77-61 are referenced.

QUESTION:

Was a voting conflict of interest created where a city financial advisory commission chairman voted on a measure to encourage the city council to explore all avenues for funding the widening of a roadway, when at the time of the vote the chairman was in the process of purchasing property along the roadway?

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

In your letter of inquiry and in subsequent information provided to our staff, we are advised that . . . . serves as the Chairman of the Cape Coral Financial Advisory Commission, an advisory body created by resolution of the Cape Coral City Commission to provide citizen input into the City's budgetary process. At a meeting of the Financial Advisory Commission on April 14, 1992, the Chairman voted in favor of a motion to encourage the City Council to explore with the County Commission all alternatives for widening State Road 78. On May 11, 1992, the Chairman closed on the purchase of property fronting S.R. 78, and we are advised that this transaction was pending at the time of the April 14 vote. You question whether a voting conflict of interest was created by this situation.

Section 112.3143(3), Florida Statutes, provides in relevant part:

(a) No county, municipal, or other local public officer shall vote in his official capacity upon any measure which would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain 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 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.

(b) 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, when voting in said capacity. [Section 112.3143(3), Florida Statutes (1991).]

This provision prohibits a local public officer from voting on a measure which inures to his special private gain; to the special private gain of any principal by who he is retained; to the special private gain of the parent organization or subsidiary of a corporate principal by whom he is retained; or to the special private gain of a relative or business associate.

Inasmuch as the Chairman was in the process of purchasing the subject property at the time of the April 14 vote, we are of the view that he was faced with a possible voting conflict of interest when he voted in April, notwithstanding the fact that he did not close on the property until May 11, 1992. See CEO 87-86.

The question then becomes whether the vote on the matter actually inured to the Chairman's special private gain. We have advised in CEO 77-129 that whether a measure inures to the special private gain of an officer will turn in part on the size of the class of persons who stand to benefit from the measure. Where the class of persons is large, a special gain will result only if there are circumstances unique to the officer under which he stands to gain more than the other members of the class. Where the class of persons benefiting from the measure is extremely small, the possibility of special gain is much more likely. See CEO 90-56.

Here, it appears that the length of the roadway slated for widening is approximately 4.5 miles, with the Chairman owning two five-acre parcels on the north side of State Road 78. The size of the parcels owned by the Chairman are comparable to or smaller than other parcels in the vicinity, you relate. You also advise that there are approximately 276 parcels which will be affected by the project, and approximately half of that number will lose some property through eminent domain proceedings, including the Chairman's two parcels. It is anticipated that he will lose approximately 1/3 acre, but that other parcels stand to lose considerably more. A parcel immediately south of the Chairman's is expected to lose almost five acres. Under these circumstances, we cannot conclude that any benefit the Chairman received from voting to encourage the exploration of funding alternatives for the road widening would be considered "special," given the small percentage of property owned by the Chairman over the length of the 4.5 mile project and the large number of parcels expected to be affected. See CEO 91-17 and 90-56.

Although in other opinions we have opined that a measure which results in the purchase or acquisition of the officer's property would require his abstention (CEO 91-17, CEO 88-41, and CEO 77-61), here, we are of the view that such an outcome does not lead directly from the Financial Advisory Commission's vote and instead would be considered remote and speculative, inasmuch as the Commission's function was not to advise the City on transportation issues. The Financial Advisory Commission was created to advise the City on budgetary matters, and by passing a measure to encourage the City to explore with the County all available means of funding to hasten the widening of State Road 78, it appears speculative at the time of that vote to anticipate whether working with the County would cause the actual acceleration of the road widening schedule. CEO 85-46 and CEO 90-66.

Accordingly, we find that the Financial Advisory Commission Chairman was not prohibited by Section 112.3143(3), Florida Statutes, from voting to encourage the City to explore with the County all avenues for funding the widening of S.R. 78.