CEO 79-66 -- October 17, 1979

VOTING CONFLICT OF INTEREST

BOARD OF ADJUSTMENT MEMBER VOTING ON MATTER OPPOSED BY HOMEOWNERS ASSOCIATION OF WHICH HE IS OFFICER

To: W. J. Foley, Attorney, Miami

Prepared by: Phil Claypool

SUMMARY:

Section 112.3143, F. S. 1975, requires that a memorandum of voting conflict be filed if a voting officer has a personal, private, or professional interest in a pending measure and if the measure inures to his special private gain or the gain of a principal by whom he is retained. When a board of adjustment member voted on a variance request opposed by a homeowners association of which he is president, he has a private interest in the measure but, because he is not compensated by the association and because his personal residence is situated one-half mile from the subject property, the passage or defeat of the proposed variance did not inure to his special gain or to the gain of a principal by whom he is retained. Therefore, no voting conflict is deemed to have been created by such vote.

QUESTION:

Does a voting conflict of interest exist when a board of adjustment member votes on a variance request opposed by a homeowners association of which he is president?

Your question is answered in the negative.

In your letter of inquiry you advise that Mr. Henry Tilghman is an appointed member of the Board of Adjustment of the City of Plantation, which hears requests for variances from zoning ordinances. You also advise that Mr. Tilghman is the President of the Plantation Acres Homeowners Association, which is comprised of homeowners living within a subdivision in the city. In addition, you advise that on September 6, 1979, property owners in that subdivision sought a reduction in the front footage requirement for building from the board of adjustment. The homeowners association, through a representative, spoke in opposition to the variance, feeling that the requirement of minimum front footage was beneficial to the character of the community, which is predominantly 1-acre zoning for residential purposes. Finally, you advise that Mr. Tilghman voted against the proposed variance.

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

Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, 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. [Section 112.3143, F. S. 1975.]

This provision requires a memorandum of voting conflict to be filed if a voting officer has a personal, private, or professional interest in the pending measure and if the measure inures to his special private gain or the gain of a principal by whom he is retained. In our view, although the subject board member might be said to have had a private interest in the variance request, as president of the homeowners association and as a homeowner within the subdivision, the passage or defeat of the proposed variance did not inure to his special gain or to the special gain of a principal by whom he is retained.

You have advised that the subject board member lives approximately one-half mile from the property on which the variance was requested. Under the circumstances, we are unable to conclude that the decision of the board of adjustment would have inured to his special private gain. His gain, if any, would be highly speculative.

In addition, we find that the request for the variance would not inure to the special gain of a principal by whom the subject board member was retained. In previous advisory opinions, we have advised that this language encompasses both an employment relationship as well as an agency-principal relationship. See CEO 78-27. You have advised that the homeowners association is a voluntary, nonprofit association. Officers of such associations are not generally deemed to be agents for the association, as the association must specifically ratify or give authorization to its officers in order for them to contract in behalf of the association. See 4 Fla. Jur.2d Associations and Clubs s.

10. Moreover, it does not appear that the subject board member has been "retained" by the homeowners association. The term "retained" has been defined as "to keep in pay or in one's service; specifically, to employ by paying a retainer." Webster's Seventh New Collegiate Dictionary (1972). In a telephone conversation with our staff, you advised that the homeowners association does not pay any compensation to its president, who is chosen by the association's members in an election. Under these circumstances, it does not appear that the president of the homeowners association is kept in the pay or in the service of the association.

Accordingly, we find that the subject board of adjustment member is not required to file a memorandum of voting conflict following his vote on a measure which was opposed by the homeowners association of which he is president.