CEO 87-66 -- September 16, 1987

VOTING CONFLICT OF INTEREST

COMMUNITY DEVELOPMENT DISTRICT SUPERVISORS

EMPLOYED BY DEVELOPER OF LAND WITHIN THE DISTRICT

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

SUMMARY:

A supervisor of a development district created under Chapter 190, Florida Statutes, who is elected on a one- acre, one-vote basis and who is employed by the developer of property in the district, would be required to file a memorandum of voting conflict regarding the decisions to issue revenue bonds to finance the construction of improvements, to have engineering work done, and to have construction work done, in order to finance and construct infrastructure improvements necessary for the development of property in the district. Each of these decisions would inure to the "special" gain of the developer of the district. However, the decision of which company will be selected to do this work would inure to the "special" gain only of the companies selected rather than of the developer. As the Commission advised in CEO 78-27, where memoranda of voting conflict would be required to be filed on an ongoing basis, memoranda need not be filed each time a vote is taken, so long as the official previously had made such a disclosure and the public and other members of the board are fully aware of his employment.

QUESTION:

Is a supervisor of a development district created pursuant to Chapter 190, Florida Statutes, who is employed by the developer of property in the district, required to file a memorandum of voting conflict regarding the engineering and construction contracts awarded by the district, the issuance of special assessment revenue bonds, or any other matter relating to the carrying out of purposes of the district?

In your letter of inquiry you advise that you serve as Chairman of the Board of Supervisors of the Gateway Centre Development District, a community development district established pursuant to Chapter 190, Florida Statutes, under an ordinance adopted by the City of Pinellas Park. The District is in independent special taxing district and was established for the purpose of constructing and financing certain infrastructure improvements within the District.

The District's governing body is composed of five supervisors, elected on a one-acre, one-vote basis by the owners of property located within the District. Four of the elected supervisors are employed by partners of the joint venture developer which petitioned the City for the creation of the District.

You further advise that the engineering contract for infrastructure improvements was awarded by the District under the Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes. The subsequent award of contracts for the construction of the infrastructure improvements was made under the public bidding procedure of Section 190.33, Florida Statutes. Finally, you advise that the developer is not a principal or agent of the district engineer or of the contractors who bid on or were awarded contracts by the District.

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).]

Although under this provision local officials generally are required to abstain from voting on matters in which they have a conflict of interest, to announce publicly the nature of the conflict, and to file written memoranda within fifteen days as part of the minutes of the meeting, commissioners of community redevelopment agencies and special tax district officials elected on a one-acre, one-vote basis specifically are not prohibited from voting. Therefore, members of the Board of Supervisors of the Development District may vote on a matter inuring to the special gain of the developer by whom they are employed, but they would be required to publicly announce the conflict and to file a voting conflict memorandum. See CEO 86-13, regarding community redevelopment agency members.

The answer to your question turns on whether a particular decision made by the District inures to the "special" gain of the developer of the District. Clearly, the District was created for the benefit of the developer in order to finance and construct infrastructure improvements necessary for the development of property in the District. Therefore, the decisions to issue revenue bonds to finance the construction of improvements, to have the necessary engineering work done, and to have the necessary construction work done would inure to the special gain of the developer, as each of these decisions represents another step toward the ultimate completion of the infrastructure improvements. In other words, a decision to accomplish a step necessary to attain the ultimate goal of infrastructure improvements would inure to the special gain of the developer. In addition, it appears that decisions on the details of how the goal will be accomplished may inure under some circumstances to the special gain of the developer. However, in our view, once it has been decided that the work will be done, the decision of who is to do the work would benefit only the company selected to do it. If a supervisor had no ties to any of the companies under consideration, then there would be no conflict of interest in the decision of who would be awarded the engineering contract, for example.

We recognize that by the nature of the District's responsibilities the members of the Board of Supervisors will be required to consider a number of measures which would inure to the special gain of the developer by which they are employed. In CEO 78-27, we advised that an airport authority member need not disclose his employment with an airline which served that airport each time he voted upon a measure affecting the airline, so long as he previously had made such a disclosure and the public and other members of the authority were fully aware of his employment. Based on the similarity of the instant situation, we are of the opinion that the rationale of CEO 78-27 would be applicable here. We would suggest that such disclosures be made annually.

Your question is answered accordingly.