VOTING CONFLICT

CITY COMMISSIONER VOTING ON BASEBALL STADIUM

To:        Name withheld at person’s request (Winter Park)

SUMMARY:

Under the circumstances presented, a city commissioner will not be presented with a voting conflict regarding measures to locate a minor league baseball team near his already-developed commercial property. CEO 06-20 is referenced and CEO 01-8 is distinguished.¹

QUESTION:

Will a city commissioner be presented with a voting conflict regarding measures to locate a minor league baseball team, where the stadium would be sited near an existing commercial property owned by a company in which the commissioner owns an interest?

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

You write that a member of the City Commission of the City of Winter Park holds a sixteen percent membership interest in a limited liability company (LLC) that owns a commercial property near the site the City is considering for a minor league baseball stadium. Further, you relate that the site currently houses a private college’s baseball field and that several votes of the City Commission would be involved in locating the stadium there.² You state that the member’s property is approximately 30,000 square feet in size, is separated from the stadium site by a four-lane, major roadway, is sixty-percent-leased, for five to ten years, to a bicycle store, an interior decorator, and a furniture store; that the business focus for the property is to lease the remaining forty percent of its space to businesses similar to its existing tenants; and that there will be no change in the business or leasing approach for the property, with or without the coming of minor league baseball.³ Continuing, you relate that within a one-quarter-mile radius of the site there are several major roads and various types of businesses or uses, including drugstores, RV storage and sales, food stores, restaurants, interior design, travel agencies, banks and financial institutions, taverns, pubs, or bars, playgrounds, parks, institutional spaces, professional offices, and a bowling alley, with the uses being almost ninety percent commercial in nature. And, you state that within the whole of the radius approximately seventy-five percent of the properties are zoned commercial, including the member’s property.⁴

Section 112.3143(3)(a), Florida Statutes, is the portion of the voting conflicts law contained within the Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes) which is applicable to local, elective, public officers, such as city commissioners; it 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 declaration of interest, abstention from voting, and the filing of a memorandum (CE Form 8B) as to measures which would inure to the special private gain or loss of the public officer or to that of persons or entities standing in a relationship to the officer as listed in the statute. In 2013, the Legislature codified the meaning of “special private gain or loss,” as follows:

(d) “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. [Section 112.3143(1)(d), Florida Statutes.]

The definition, which essentially incorporates our decisional history involving the phrase, recognizes that gain or loss from a vote/measure will not be “special,” and thus will not trigger a voting conflict, when a sufficiently large class is affected; and recognizes that no special private gain or loss is present when there is uncertainty at the time of the vote as to whether there would be any economic benefit or harm to the public officer from the vote, regardless of the size of the class putatively affected.

We find, under the situation presented, that the member will not be presented with a voting conflict regarding measures to site the stadium and locate the minor league team. It is apparent from the narrative information you have supplied, as well as from the maps, that there is uncertainty as to whether there would be any effect on the member’s property occasioned by the presence of the minor league team, given the nature of his property (developed, already active, commercial property; a sixty percent rental to tenants unrelated to baseball; a business plan unrelated to baseball). And, it is apparent that, assuming an effect, that it would not be “special,” given the number of commercial properties in the same vicinity as the member’s.⁵

Accordingly, we find that the member of the City Commission⁶ will not be presented with a voting conflict of interest regarding measures to locate the minor league team at the private college site.⁷

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 25, 2014, and RENDERED this 30th day of July, 2014.

____________________________________

Linda McKee Robison, Chair

^[1]Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).

^[2] The first vote would be as to the structure of the deal, the components of which would include site location and the amount of money to be contributed by the City’s Community Redevelopment Agency (CRA) through tax increment financing (TIF) bonds, the amount of contribution from the private college, the minor league team’s contribution amount, and the creation of a special purpose entity (SPE) to access new market tax credit revenue. The second vote would be to establish the SPE and the operating agreement among the members of the SPE, which would be the City, the private college, and the minor league team. The third vote would be to authorize the issuance of CRA TIF bonds; and there may be related “subsidiary votes,” which would include a vote to adopt the terms of the offer, a vote to select the actors issuing the bonds (including the underwriter, trustee, bond and underwriting counsel and due diligence counsel), and a vote to approve agreements with the underwriter and trustee concerning the deal and the respective obligations of the issuer, trustee, and underwriter in connection with the bonds. The fourth vote would be to consider approval of the City Planning and Zoning Board’s recommendation on a conditional use application.

^[3]None of the existing tenants or anticipated tenants sells sports memorabilia or products or services oriented to the sport of baseball or to the private college.

^[4]The quarter-mile radius in your scenario was selected as a conservative measure of how far attendees of events at the site might be expected to walk from the site to patronize businesses in the vicinity.

^[6] In view of our finding herein, it is unnecessary for us to determine what percentage of ownership in a company is small enough such that gain or loss to the company is not, ipso facto, gain or loss to an owner of the company personally.

^[7] Any votes to offer area businesses the right to buy parking spaces or parking access in the parking garage that will be developed in connection with the locating of the minor league team are not addressed herein, inasmuch as you state that you will advise the member that he must declare, abstain from voting, and file a voting conflict memorandum as to any such matters. Further, in view of our finding herein, we see no need to opine as to whether a May 12 vote of the City Commission to extend the term of the City’s CRA implicated Section 112.3143(3)(a).