VOTING CONFLICT

COUNTY COMMISSIONER VOTING ON SALE
OF AIRPORT ADJACENT TO HIS OWN PROPERTIES

To:        Mark Lapp, County Attorney (Hendry County)

SUMMARY:

A county commissioner is not prohibited by Section 112.3143(3)(a), Florida Statutes, from voting on measures to amend or approve a management agreement and purchase and sale agreement for a county-owned airport adjacent to property in which he has an ownership interest, as any gain or loss resulting to the commissioner would be remote and speculative. CEOs 85-77 and 91-61 are referenced.¹

QUESTION:

Would a county commissioner be presented with a voting conflict under Section 112.3143(3)(a), Florida Statutes, regarding measures concerning a management agreement and purchase and sale agreement for a county-owned airport that is adjacent to properties in which the commissioner and his relatives have ownership interests?

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

You write on behalf of a member of the Board of County Commissioners of Hendry County. Prior to the member's appointment to the Commission by the Governor in October 2013, the County had expressed its intention to sell a county-owned airport to a private party for conversion into an air cargo airport. Multiple presentations regarding this transaction were submitted, and the Commission voted numerous times to approve draft agreements for the transaction. In May 2013, the Commission approved a purchase and sale agreement as well as a management agreement which would allow a private party to manage the property until the closing of the sale, and submitted these agreements to the Federal Aviation Administration ("FAA") for review. You relate that the FAA's approval process will involve ongoing discussions and may require revisions to either agreement that would need to be approved by a vote of the County Commission. These potential votes to amend or approve both agreements are the subject of your inquiry.

You further advise that the member and several members of his family have ownership interests in three properties located near the airport. One parcel, consisting of approximately 270 acres, is held by an LLC of which the member is a majority stockholder and manager. Another parcel, consisting of approximately 5 acres, appears as an in-holding in the first parcel and is owned personally by the member, and his home also is located on this property. A third parcel, consisting of approximately 155 acres, is held by an LLC owned by the member's brother and two sisters, and is managed by the member. These properties, with the exception of the member's home, are zoned and used for the farming of sugarcane. The airport itself is four square miles in size with a road abutting its north and west sides. There are a total of 79 parcels north of and 16 parcels south of the road abutting the north end of the airport. You also advise that if the sale of the airport is approved, there is a possibility that all adjacent landowners, including but not limited to the member, his family members, and their companies, would have the opportunity to develop their properties to accommodate businesses that would support the proposed modifications to the airport. Any potential developments to adjacent properties would be contingent upon FAA approval of the sale and management agreement, the actual purchase of the airport, zoning changes, utility installation, and other modifications required to expand the use of the properties beyond agriculture.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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. [Section 112.3143(3)(a), Florida Statutes.]

This provision prohibits a local public officer from voting upon a measure which inures to his special private gain or loss or which he knows would inure to the special private gain or loss of a relative. Section 112.3143(1)(d), Florida Statutes (enacted via Chapter 2013-36, Section 6, Laws of Florida), now defines "special private gain or loss" as "an economic benefit or harm." This provision also clarifies that one consideration when determining whether such gain or loss would be present is "[t]he 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 [or], his or her relative . . ." This statute is consistent with our prior interpretations of the voting conflicts law, as we have consistently opined that no special private gain or loss exists in situations where any gain or loss to a public officer would be remote and speculative. For example, in CEO 85-77, we found that a school board member was not prohibited from voting on matters relating to the use of school district property where he owned a clothing store near the site of the proposed school complex. We reasoned that, although presumably all businesses in the area would benefit from the construction of the complex, it would be purely a matter of speculation and conjecture on our part to conclude that the member's business would derive any special gain. Similarly, in CEO 91-61, we recognized that a city council member was not presented with a voting conflict with regard to a measure to extend a public sidewalk onto her property, because any gain or loss to the member would be contingent upon a rezoning of her property to include more intensive uses. Similarly, there is uncertainty here that the properties in which the member and his relatives have interests would experience an economic effect from the management or sale of the airport, especially since current zoning restrictions would preclude a more profitable and intensive use of the property. Because any gain or loss resulting from the sale of the airport is too remote and speculative, and therefore uncertain, under the facts presented, we find that no special private gain or loss exists.

Accordingly, under the situation presented, we find that the county commissioner is not prohibited by Section 112.3143(3)(a), Florida Statutes, from voting on measures relating to the management agreement and purchase and sale agreement of the airport.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 7, 2014, and RENDERED 12th day of March, 2014.

____________________________________

Morgan R. Bentley, Chairman

^[1] Prior Commission on Ethics opinions can be viewed at www.ethics.state.fl.us.