CEO 85-54 -- August 8, 1985

VOTING CONFLICT OF INTEREST

COUNTY COMMISSIONER OWNING PROPERTY FOR DEVELOPMENT VOTING ON MATTERS RELATING TO ANOTHER DEVELOPMENT

To: Mr. Murray McLaughlin, Member, Wakulla County Board of County Commissioners, Crawfordville

SUMMARY:

A county commissioner is not prohibited by Section 112.3143, Florida Statutes, from voting on a developer's land development site plan, where the commissioner owns land over two miles from the developer's project. Under these circumstances the commissioner would not receive any direct financial benefit from his vote.

QUESTION:

Are you, a county commissioner, prohibited by Section 112.3143, Florida Statutes, from voting on matters relating to a townhouse development where you own other property which has been approved for building townhouses?

Your question is answered in the negative.

In your letter of inquiry you advise that you serve as a member of the Wakulla County Board of County Commissioners. You also advise that a developer who previously had received approval for building up to 88 townhouse units on 5.2 acres of land in the County was issued building permits for the first eight-unit cluster. However, after the issuance of those permits, the developer asked that the original plan be rescinded and submitted a second plan, which did not contain a total site plan for the project but only represented one cluster of ten units. This would have the effect of reducing lot sizes from 18 feet to 14 feet. The Building Department has requested review by the County Commission since there was no longer a total site plan and there appeared to be a substantial revision of the project.

You question whether you may vote on this matter, as you and your wife own approximately 3 acres of land for which you obtained Planning Commission approval for building 14 townhouse units prior to your election to the County Commission. You advise that this parcel is located approximately two to two and one-half miles from the developer's project and has no frontage on the Gulf of Mexico, unlike the developer's project. At the present time, you advise, you are holding the land as an investment and do not have any plans for imminent development. In addition, you advise that you have taken some steps toward selling the property.

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

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, 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. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one- acre, one-vote basis is not prohibited from voting. [Section 112.3143(3), Florida Statutes (Supp. 1984).]

This provision prohibits you from voting on a measure which would inure to your special private gain or to the special gain of any principal by whom you are retained.

In CEO 80-3 we concluded that no voting conflict of interest would be created were a city commissioner to vote on a measure affecting a company which is a competitor of his employer, noting that the fact that the commissioner's employer might gain by virtue of some loss to its competitor would be too speculative a conclusion to draw from the facts presented. Similarly, here, it does not appear that you would stand to receive any direct financial benefit from the matters relating to the developer's project. Given the distance between your land and the developer's project, and the fact that your property is not being developed actively, we find that any gain you might receive by virtue of the denial of the developer's request would be too speculative and remote to conclude that it would inure to your special private gain.

Accordingly, we find that you are not prohibited by Section 112.3143, Florida Statutes, from voting on matters relating to the developer's project. For your information, Section 112.322(2), Florida Statutes, creates a procedure whereby a public officer may request a hearing before this Commission to present oral or written testimony in response to allegations that he violated the Code of Ethics. However, we are authorized to grant such a request only upon a determination that the allegations are of such gravity as to affect the general welfare of the State and the ability of the public officer effectively to discharge the duties of his office.