CEO 86-9 -- February 20, 1986

VOTING CONFLICT OF INTEREST

CITY BOARD OF ADJUSTMENT MEMBER VOTING ON VARIANCES REQUESTED BY CLIENTS OF HIS SURVEYING AND ENGINEERING FIRM

To: Mr. Daniel J. O'Brien, Alternate Member, Board of Adjustment, City of Boynton Beach

SUMMARY:

An alternate member of a city board of adjustment is prohibited by Section 112.3143, Florida Statutes, from voting on variance petitions of persons who are clients of his surveying and engineering firm at the time of the vote and from voting on variance petitions where the client is expected to require further surveying or engineering work as a result of the decision on the variance. CEO's 78-59 and 84-1 are referenced.

QUESTION:

Are you, an alternate member of a city board of adjustment, prohibited by Section 112.3143, Florida Statutes, from voting on petitions for variances requested by clients of your surveying and engineering firm?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you serve as an alternate member of the Board of Adjustment of the City of Boynton Beach. You also advise that you are a principal in a surveying, engineering, and land-planning firm. As a member of the Board of Adjustment you frequently observe survey maps, prepared by your firm, that are recorded exhibits attached to the petitions being heard by the Board. Usually, when these surveys are ordered neither the client nor your firm knows that the client will have to petition the Board of Adjustment for a variance. The cost of a survey normally is below $300, which amount would not approach one-tenth of one percent of the annual receipts of the firm.

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 (1985).]

This provision prohibits you, as a City Board of Adjustment member, from voting on a matter which inures to the special gain of a principal by whom you are retained. In these instances, you also would be required to announce the conflict of interest at the meeting and to file a memorandum of voting conflict (Commission on Ethics Form 4) within fifteen days with the person who keeps the minutes of the meeting.

In a previous opinion, CEO 78-59, we advised that a water management district board member would be faced with a voting conflict of interest in voting on a matter affecting a client of his surveying firm. In CEO 84-1, we advised that a county commissioner would not be presented with a voting conflict of interest regarding rezoning applications where his firm had prepared a sketch or legal description of the property if the applicant was not a client of his engineering and surveying firm at the time of the vote. However, if the applicant were a client of the firm at the time of the vote or if the client was expected to require further surveying or engineering work, such as subdivision platting, as a result of the rezoning, then the county commissioner would have a voting conflict in voting on the rezoning application.

Accordingly, we find that you are prohibited from voting on variance petitions of persons who are clients of your surveying and engineering firm at the time of the vote and that you are prohibited from voting on variance petitions where the client is expected to require further surveying or engineering work as a result of the decision on the variance. Even in those instances where you are not required to abstain from voting, you still may abstain from voting where your firm prepared a survey map which was incorporated as part of the petition, as explained further in CEO 78-85 and CEO 84-1.

Finally, please be advised that Section 112.313(4), Florida Statutes, prohibits a public official from accepting any compensation or payment when the official knows, or with the exercise of reasonable care should know, that it was given to influence some official action in which he was expected to participate. As we advised in CEO 85-52, unless you have reason to believe that your firm was retained for the purpose of influencing your official decision, this provision would not be violated. However, there may be situations where it is clear that your firm was retained for a matter to be decided by the Board of Adjustment specifically because you serve as an alternate member of the Board.