VOTING CONFLICT

MAYOR VOTING ON DE-ANNEXATION FROM TOWN'S BOUNDARIES
PART OF SUBDIVISION WHERE HE RESIDES

To:        Patricia Petruff, Town Attorney for the Town of St. Leo

SUMMARY:

No voting conflict of interest would be created under Section 112.3143(3)(a), Florida Statutes, were the Mayor of the Town of St. Leo to vote on matters relating to the de-annexation from the Town's boundaries part of a subdivision where he resides. Under the circumstances, the number of lots in the subdivision that could be de-annexed from the Town is significant-108 lots (85 homes)-and their de-annexation would affect all of them in a proportionally equal manner such that there is no special private gain or loss to the Mayor as a result.

QUESTION:

Would a voting conflict of interest exist were the Mayor of the Town of St. Leo to vote to de-annex from the Town's boundaries part of a large residential development, where the Mayor's home is located within the development in the area potentially de-annexed?

Your question is answered in the negative, under the particular circumstances provided.

From your letter of inquiry and communications with our staff, we are advised that Mayor John Gardner of the Town of St. Leo has authorized you to seek this advisory opinion on his behalf. You explain that included within the Town's boundaries is a portion of a very large gated development. Although reported numbers vary, it appears that the entire development consists of nearly 900 lots, and that there are currently about 650 lots (350 homes) in the part of the subdivision located in unincorporated Pasco County. You advise that 108 lots (85 homes) in the development are located within the Town's boundaries. Residents who live in that part of the subdivision located within the Town's boundaries have for years advocated that their area be de-annexed from the Town, and the Town is now considering various means to accomplish this, including the de-annexation/contraction process outlined in Section 171.051, Florida Statutes, as well as a possible legislative remedy. The Mayor resides in that part of the subdivision seeking de-annexation from the Town's boundaries, and he questions whether the voting conflict statute-Section 112.3143(3)(a), Florida Statutes-prohibits him from voting on matters related to this issue.

The voting conflict statute-Section 112.3143(3)(a), Florida Statutes-provides:

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 term "special private gain or loss" is defined in Section 112.3143(1)(d), Florida Statutes (2013) (Chapter 2013-36, Section 6, Laws of Florida), and provides:

"Special private gain or loss" means an economic benefit or harm that would inure to the officer, his or her relative, business associate, or principal, unless the measure affects a class that includes the officer, his or her relative, business associate, or principal, in which case, at least the following factors must be considered when determining whether a special private gain or loss exists:

1. The size of the class affected by the vote.

2. The nature of the interests involved.

3. The degree to which the interests of all members of the class are affected by the vote.

4. The degree to which the officer, his or her relative, business associate, or principal receives a greater benefit or harm when compared to other members of the class.

The degree to which there is uncertainty at the time of the vote as to whether there would be any economic benefit or harm to the public officer, his or her relative, business associate, or principal and, if so, the nature or degree of the economic benefit or harm must also be considered.

If de-annexation/contraction occurs, the 108 lots in the subdivision will no longer be within the Town's boundaries, and so their owners will pay less in municipal taxes. For the Mayor, this amounts to approximately $388 per year.¹ The Mayor also would no longer be eligible to serve on the Town Commission, as Article III, Section 3.02, of the St. Leo Code of Ordinances requires members of the Town Commission to be residents of the Town.

In a series of opinions cited in CEO 07-17, we referenced several unique scenarios where we were asked to determine whether a voting conflict of interest was created. In CEO 87-27, we opined that the Golfview Town Council, which was situated on the western side of the Palm Beach International Airport, could vote to rezone the entire town as commercial and sell it to a developer, and that this did not constitute a voting conflict because all of the residents would be equally affected. In CEO 06-21, we opined that no voting conflict of interest was created where a member of the Marineland Town Council voted on a land use issue, where the applicant purchased the land in question from the Council member's employer and where the employer had extensive contractual relationships with the applicant and had plans to engage in development in the town complementary to that of the applicant. There, we said that given the size of the town and that the rezoning would impact all residents similarly, no voting conflict was created. The situation in CEO 07-17 involved the rezoning of Briny Breezes, a small town consisting of an oceanfront mobile home park. Again, all of the residents and shareholders in the company that owned the property were going to be equally affected by the vote, so we were able to conclude that no voting conflict was created in that situation.

The situation here is different in that all residents of the Town of St. Leo would not be equally affected by the vote, but those residents who own property in the subdivision would be, and according to the information you provided, there are 85 homes on 108 lots in that part of the subdivision that could be de-annexed from the Town's boundaries. In CEO 90-71, we opined that a voting conflict of interest was not created where a town commissioner voted on a special assessment to fund a dredging and improvement project, where he and his wife owned one of 83 lots that were subject to the special assessment. In concluding that that situation did not constitute a "special" private gain or loss to the town commissioner, we noted that even though 1:83 was a relatively small class, the commissioner's interests were not going to be affected any greater than other members of the class, and that his proportionate share of the benefit and the cost was relatively low. Although these factors have long been a part of our analyses of voting conflicts, the Legislature codified them earlier this year when it amended Section 112.3143(3)(a) to include them. Here, where there are 85 homes on 108 lots that could be removed from the Town's municipal boundaries, we do not perceive that the Mayor's interests would be impacted to such a degree as would constitute a "special" private gain or loss under Section 112.3143(3)(a), Florida Statutes, or our precedent.

Accordingly, the Mayor of the Town of St. Leo would not be faced with a voting conflict when voting on matters related to the de-annexation of a portion of a development where he resides.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 13, 2013, and RENDERED this 18th day of December, 2013.

____________________________________

Morgan R. Bentley, Chairman

^[1] http://www.appraiser.pascogov.com/search/esttax/calculatetax.aspx?pagever=2&parcel=2025010030000002870