VOTING CONFLICTS

CITY COUNCIL MEMBER VOTING ON
AMENDMENTS TO LAND DEVELOPMENT REGULATIONS
RELATING TO CITY CENTER ZONING DISTRICT

To: Name withheld at person's request, City Attorney (Punta Gorda)

SUMMARY:

A member of a city council is not presented with a voting conflict requiring her abstention and compliance with Section 112.3143(3)(a), Florida Statutes, regarding measures concerning changes to the city's land development regulations relating to the city center zoning district wherein herself and her spouse own property. Under these circumstances, the size of the class of affected properties is sufficiently large such that any gain or loss to the council member and/or her spouse is not "special." CEOs 06-8, 01-8, 89-32, 88-31, 86-44, 85-5, and 84-80 are referenced¹

QUESTION:

Would a member of a city council be presented with a voting conflict under Section 112.3143(3)(a), Florida Statutes, regarding measures concerning changes to the city's land development regulations relating to the city center zoning district wherein she and her spouse own property?

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

In your letter of inquiry and other information provided to our staff, you indicate that as City Attorney you are requesting this opinion on behalf of a member of the City Council. You advise that the member, together with the member's spouse, have an ownership interest in six (6) platted lots² located within the City Center Zoning District, a mixed-use district which permits both single-family residential and commercial uses. In total, you relate that the six lots represent 0.65 acres of land within the City Center Zoning District. You further indicate that the lots in question are assessed as "commercial" for ad valorem tax purposes and are presently vacant. You state that the City Center Zoning District contains 134 acres of developable land and a total of 690 lots.

You relate that presently the development standards within the City's Land Development Regulations relating to the City Center Zoning District provide no minimum lot area, no minimum front or side yard setback, and a maximum height requirement of 50 feet above the FEMA required Base Flood Elevation. The City Council is considering amending the City's Land Development Regulations to adopt additional development standards to allow buildings within the City Center Zoning District to exceed the current maximum height limitation by six feet. In light of the impending votes/measures of the City Council, you ask, on behalf of the City Council member, whether she must abstain and otherwise comply with Section 112.3143(3)(a), Florida Statutes, regarding the measures/votes.

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 council members; 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 of voting conflict (CE Form 8B) as to measures which would inure to the special private gain or loss of the public officer, to that of the officer's relative,³ or to that of other persons or entities standing in a relationship to the officer as listed in the statute. Pursuant to Section 112.3143(1)(d), Florida Statutes, the term "special private gain or loss" is defined to mean:

(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.

The definition of "special private gain or loss," which essentially codifies our decisional history involving the phrase, recognizes that gain or loss from a vote/measure will not be "special," and thus will not give rise to 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.

In prior opinions, we have found that no voting conflict exists where a city council member is faced with measures of the city council concerning the development or redevelopment of city-owned parcels located near or even adjacent to properties owned by the council member or a relative thereof. See e.g., CEO 06-8, 89-32, 88-31, and 86-44. In these opinions, the Commission has opined that the impact of the vote(s) affecting properties located in close proximity to the property owned by the public officer would be too "remote and speculative" and, thus, not a voting conflict. However, unlike these opinions, the measures at issue in the instant inquiry involving the proposed changes to the City's Land Development Regulations will impact the area (City Center Zoning District) wherein the Council member and her spouse own six lots. Moreover, based upon lot size and configuration, every parcel in the District will stand to gain six feet of additional building height as a result of the passage of the proposed amendments. The ability to gain six additional feet of building height certainly is a gain of a tangible nature which will allow a more profitable use of the property. Thus, we cannot say that the effect of the measures/votes on her property (or that of her spouse) would be sufficiently remote and speculative to negate a voting conflict.

However, Section 112.3143(1)(d), also requires an examination as to the "size of the class" and the degree to which the interests of all members of the class are affected by the vote in determining whether a matter inures to a public officer's "special private gain." In CEO 01-8 we engaged in a thorough review of our precedent in this area and explained:

Where the class of persons is large, we have concluded that "special gain" will result only if there are circumstances unique to the officer under which he or she stands to gain more than the other members of the class.  Where the class of persons benefiting from the measure is extremely small, we have concluded that the possibility of "special gain" is much more likely.

For example, in CEO 84-80 we found that no voting conflict of interest would be created were a member of a city-county planning commission to vote on a down-zoning proposal encompassing the neighborhood in which he lived, where the proposal would have down-zoned over 700 lots in the neighborhood, owned by approximately 560 persons. Similarly, in CEO 85-5 we advised that a town commission and zoning board member would not be prohibited from voting on the rezoning of a mobile home park in which the commissioner lived, where the town consisted of approximately 250 residents, of whom approximately 90 percent lived in the mobile home park.

In the instant matter, the council member and her husband own six lots comprising 0.65 acres located within a Zoning District which contains 690 total lots and 134 total acres of developable land. Thus, the official's ownership interest represents less than one percent of the total number of platted lots and less than one-half of one percent of the total developable land within the City Center Zoning District. Moreover, the materials submitted in conjunction with this inquiry indicate that the proposed amendments to the City's Land Development Code will affect all of the properties located with the City Center Zoning District and will not uniquely impact the six vacant lots owned by the requestor or her relative. Therefore, under these circumstances, we find that the proposed amendments to the City's Land Development Regulations relating to the City Center Zoning District will not inure to the "special private gain or loss" of the City Council member or her relative (husband).

Accordingly, we find that the City Council member is not presented with voting conflicts as to measures involving amendments to the City's Land Development Regulations relating to the City Center Zoning District.

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 27, 2018, and RENDERED this 1st day of August, 2018.

____________________________________

Guy W. Norris, Chair

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

^[2] Information provided by the member indicates that five of the lots located in the City Center Zoning District are owned by a construction company in which her husband possess a 40 percent ownership interest and for which he serves as vice president. In addition, the member and her spouse jointly own the remaining lot.

^[3] "Relative" is defined in Section 112.3143(1)(b) to mean "father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, or daughter-in-law."