CEO 87-16 -- March 11, 1987

VOTING CONFLICT OF INTEREST

CITY-COUNTY PLANNING COMMISSION MEMBER

VOTING ON COMPREHENSIVE PLAN AMENDMENT INVOLVING PROPERTY

OWNED BY HIS NIECES

To: Ms. Debra L. Romanello, Attorney for Hillsborough County City- County Planning Commission, Tampa

SUMMARY:

A city-county planning commission member is not prohibited by Section 112.3143, Florida Statutes, from voting on a proposed amendment to the county's comprehensive plan involving approximately 97,000 acres, when approximately 130 acres located within the area encompassed by the plan amendment are owned by two nieces of the commissioner. Here, the plan amendment would inure neither to the gain of the commissioner nor of any principal by whom he is retained. CEO's 78-13, 85-27, and 85-77 are referenced.

QUESTION:

Is a city-county planning commission member prohibited by Section 112.3143, Florida Statutes, from voting on a comprehensive plan amendment regarding an area of the county which includes property owned by two nieces of the commissioner?

Your question is answered in the negative.

In your letter of inquiry you advise that Mr. Buford Council serves as a member of the Hillsborough County City-County Planning Commission. As created by Chapter 78-523, Laws of Florida, the Commission is authorized to "[conduct] continuous planning and [make] recommendations to the Board of County Commissioners of Hillsborough County, the municipalities in Hillsborough County and other appropriate public bodies concerning the orderly growth and development of Hillsborough County." In addition, the Commission functions as the local planning agency and in that role reviews all requests for amendments to comprehensive plans for the County and its municipalities and makes recommendations on those requests to the appropriate local governing body. You also advise that recently a nonprofit association of land owners representing approximately 35,000 acres of land in the southeastern part of the County submitted a request for an amendment to the County's comprehensive plan. The plan amendment request encompasses approximately 97,000 acres in the southeastern part of the County, or approximately 16 percent of the unincorporated area of the County.

Finally, you advise that two of the Commissioner's nieces own approximately 130 acres located within the plan amendment area. The acreage currently is designated Light Industrial, and the proposed amendment would leave the acreage in that category. The Commissioner has no business relationship with his nieces, he has no financial interest in the subject property, he is not employed by his nieces, and he does not receive any support, compensation, or remuneration from them, you advise.

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 requires a local official to abstain from voting on any measure which would inure to his special private gain or the special gain of a principal by whom he is retained. Here, under the facts presented there is no reason to believe that the plan amendment request would inure to the gain of the Commissioner. Nor would the Commissioner's nieces be principals by whom the Commissioner is retained. Further, it does not appear that the requested plan amendment would inure to the gain of the Commissioner's nieces, as their property would remain in the same land use category under the amendment.

In previous opinions we have advised that Section 112.3143, Florida Statutes, would not apply to a public official who is voting on a matter which would benefit his parent or his daughter-in-law. See CEO 85-77, CEO 85-27, and CEO 78-13. In accordance with the rationale of these opinions, we find that the subject Commissioner is not prohibited from voting on the proposed amendment to the County's comprehensive plan, despite the fact that his nieces own property within the area encompassed by the proposed amendment.