CEO 85-90 -- December 11, 1985

VOTING CONFLICT OF INTEREST

COUNTY COMMISSIONER VOTING ON CONSERVATION ORDINANCE AFFECTING PROPERTY IN WHICH HE OWNS AN INTEREST

To: (Name withheld at the person's request.)

SUMMARY:

A county commissioner who owns an interest in property upon which is located an eagle's nest is not prohibited by Section 112.3143, Florida Statutes, from voting on a proposed ordinance which would protect eagle habitats by restricting development activities within a specified radius from their nests. Here, there are 16 parcels of property within the county upon which eagle nests are located, and the proposed ordinance would be generally applicable to all property within the county. Therefore, the proposed ordinance would not inure to the "special" gain of the county commissioner. However, were the county commission to vote on the application of the ordinance to the commissioner's property, Section 112.3143(3), Florida Statutes, would apply, and the commissioner would be required to abstain and to follow the disclosure requirements of that provision.

QUESTION:

Is a county commissioner who owns an interest in property upon which is located an eagle's nest prohibited by Section 112.3143, Florida Statutes, from voting on a proposed ordinance which would protect eagle habitats by restricting development activities within a specified radius from their nests?

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

In your letter of inquiry you advise that .... is a member of the Lee County Board of County Commissioners. You also advise that he owns a 10% partnership interest in a trust that owns a 195-acre parcel of property upon which is located a southern bald eagle nest.

You also advise that the County is considering the adoption of an ordinance which would protect the habitats of Southern Bald Eagles by severely restricting human activity within a specified radius from their nests. In a telephone conversation with our staff, the principal planner for the County advised that the County is attempting to establish a sanctuary at every active nesting site, an active nest meaning one which currently is occupied or which has been occupied within the previous four years. In its present form the proposed ordinance restricts development within certain distances from nest sites based upon management guidelines of the U.S. Fish and Wildlife Service and the Florida Game and Fresh Water Fish Commission, and depending upon the County's classification for development of the land. The ordinance would permit several alternatives in order to preserve each habitat. For example, a developer could grant a conservation easement for the property. Another alternative would allow the County to give a developer extra density for the remainder of a development, allowing the habitat area to be used for water retention, for open space, or for other requirements imposed on the development by law. As a last resort, the County would be authorized to purchase the habitat outright. The ordinance would create an eagle technical advisory committee which would negotiate with the developer and recommend to the County Commission the most appropriate way to handle each particular situation.

The County has located 16 active nest sites, each on a separate parcel of land. However, it is conceivable that all undeveloped property within the County could become subject to the ordinance as eagles occasionally do relocate to new nesting sites and as it is hoped that nests will become more common.

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 a county commissioner from voting upon any measure which would inure to his special private gain. We have advised that the requirements of this provision do not turn on the nature of the official's vote--whether it is for or against the measure--but rather on whether the interest which he holds is such that he would stand to gain or lose as a direct outcome of the decision. See CEO 84-116, CEO 83-50, and CEO 76-24. In addition, we have advised that whether a measure inures to the "special" gain of an officer will turn in part on the size of the class of persons who stand to benefit from the measure. See CEO 77-129.

We are of the opinion that the Commissioner would stand to gain or lose by virtue of the proposed ordinance, which would affect the development of property in which he has an interest. However, we conclude that any gain or loss he might receive would not be "special" within the contemplation of the voting conflicts law. Here, the Commissioner's interest is in only one of sixteen parcels which would be immediately affected by the ordinance. Potentially, all undeveloped property in the County would be affected by the ordinance. In addition, if development of the property does not take place for another four years, the nesting site on the property may become inactive and the ordinance would have no effect on the development of the property. Therefore, as the proposed ordinance would be generally applicable to all property within the County and as it would immediately affect the development of 16 parcels within the County, we are of the opinion that the class of persons affected by the proposed ordinance is large enough that the ordinance would not inure to the "special" private gain of the Commissioner.

Accordingly, we find that the subject County Commissioner is not prohibited by Section 112.3143(3), Florida Statutes, from voting on the proposed ordinance. However, if the ordinance is adopted and the County Commission is required at some time to determine how best to compensate for the restrictions imposed by the ordinance on the property, the Commissioner clearly would be presented with a voting conflict of interest and would be required to abstain and follow the disclosure requirements of Section 112.3143(3), Florida Statutes.