CEO 83-93 -- December 15, 1983

VOTING CONFLICT OF INTEREST

CITY COMMISSIONER VOTING ON ZONING OF PROPERTY OWNED BY NONPROFIT ORGANIZATION OF WHICH COMMISSIONER IS A DIRECTOR

To: Mr. Marion J. Radson, Assistant City Attorney, City of Gainesville

SUMMARY:

No voting conflict of interest would be created under Section 112.3143, Florida Statutes, were a city commissioner to vote on the zoning petition of a nonprofit corporation, where the commissioner serves without compensation on the board of directors of the nonprofit corporation. As the matter under consideration would not inure to the special private gain of the commissioner and would not inure to the special gain of a principal by whom the commissioner is retained, no memorandum of voting conflict would be required to be filed by the commissioner.

QUESTION:

Would a voting conflict of interest be created were a city commissioner to vote on the zoning petition of a nonprofit corporation, where the commissioner serves without compensation on the board of directors of the nonprofit corporation?

Your question is answered in the negative.

In your letter of inquiry you advise that ...., a member of the Gainesville City Commission, serves as a member of the Board of Directors of a nonprofit corporation which owns and operates a physicians' office building located within the City. You also advise that the City is considering a petition which requests the City either to rezone the property owned by the nonprofit corporation or to amend the City zoning ordinance in order to allow certain uses of the property which are not permitted uses under the present zoning of the property. Finally, you advise that members of the Board of Directors of this nonprofit corporation serve without pay or compensation of any kind.

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, Florida Statutes (1981).]

In a previous opinion, CEO 83-70, we advised that under this provision a city commissioner would not have a voting conflict of interest if he were to vote on matters affecting a nonprofit corporation which he served as vice president, as he received no compensation for his services and therefore had not been "retained" by the nonprofit corporation. CEO 79-65 and CEO 79-66 also were referenced in that opinion.

Here, it does not appear that a decision by the City Commission on the zoning petition would inure to the special private gain of the subject Commissioner. Nor, given the rationale of CEO 83-70, does it appear that the rezoning matter would inure to the special gain of a principal by whom the Commissioner is retained.

Accordingly, we find that no voting conflict of interest necessitating the filing of a memorandum of voting conflict under Section 112.3143, Florida Statutes, would be created were the subject City Commissioner to vote on the zoning petition of the nonprofit corporation.