CEO 87-18 -- March 11, 1987

VOTING CONFLICT OF INTEREST

CITY-COUNTY PLANNING COMMISSION MEMBER

VOTING ON PROPOSED AMENDMENT TO COMPREHENSIVE

PLAN INVOLVING PROPERTY OWNED BY HIS SONS

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, where approximately 300 acres located within the area encompassed by the proposed amendment are owned by two of the commissioner's sons and leased to a corporation of which the commissioner is president and a director. Under these circumstances, the plan amendment would not inure to the "special" gain of the commissioner or of a principal by whom he is retained. CEO's 84-80, 85-5, and 85-90 are referenced.

QUESTION:

Is a city-county planning commission member prohibited by Section 112.3143, Florida Statutes, from voting on a proposed amendment to the county's comprehensive plan involving approximately 97,000 acres, where approximately 300 acres located within the area encompassed by the proposed amendment are owned by two of the commissioner's sons and leased to a corporation of which the commissioner is president and a director?

Your question is answered in the negative.

In your letter of inquiry you advise that Mr. Elton Hinton serves as a member of the Hillsborough County City-County Planning Commission. The Commission was created by Chapter 78-523, Laws of Florida, and 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 filed 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 sons are members of the nonprofit association and own approximately 300 acres located within the area covered by the plan amendment. The requested amendment would change the land use designation on the acreage owned by the Commissioner's sons from agricultural to suburban residential. A similar change has been requested for approximately 29,000 acres in the area, or virtually all of the land designated for agricultural use. The acreage owned by the Commissioner's sons presently is leased to an agricultural corporation which is owned by the Commissioner and three of his sons, two of whom are the owners of the property. In addition, the Commissioner is president and a director of the corporation. The Commissioner neither resides with the sons who own the property nor receives any support from them.

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 to the special gain of a principal by whom he is retained. In CEO 77-129, we advised:

In our view, whether a measure inures to the special private gain of an officer or his principal will turn in part on the size of the class of persons who stand to benefit from the measure. Where the class of persons is large, a special gain will result only if there are circumstances unique to the officer or principal under which he stands to gain more than the other members of the class . . . . Where the class of persons benefiting from the measure is extremely small, the possibility of special gain is much more likely.

Based upon this reasoning, in CEO 84-80 we found that no voting conflict of interest would be created were a member of a city-county planning commission to vote on a down-zoning proposal encompassing the neighborhood in which he resided, where the proposal would have down-zoned over 700 lots in the neighborhood owned by approximately 560 persons. Similarly, in CEO 85-5 we advised that a town commission and zoning board member would not be prohibited from voting on the rezoning of a mobile home park in which the commissioner resided, where the town consisted of approximately 250 residents, of whom approximately 90 percent lived in the mobile home park. Further, in CEO 85-90 we advised that a county commissioner could vote on a conservation ordinance affecting property in which he had a 10 percent interest where the parcel of property was one of 16 directly affected by the ordinance and where the ordinance was potentially applicable to all property in the county.

Under the circumstance presented, the property owned by the Commissioner's sons represents 300 of the 97,000 acres included in the comprehensive plan amendment and represents 300 of the 29,000 acres of the agriculturally designated land which would be designated suburban residential under the amendment. Based upon the rationale of our previous opinions, we find that any gain to be received by the Commissioner's sons, or indirectly by the Commissioner through the corporation, would not constitute "special" gain within the contemplation of the voting conflict law.

Accordingly, we find that the Commissioner is not prohibited from voting on the proposed comprehensive plan amendment, despite the fact that his sons own property located within the area to be affected by the plan amendment and despite the fact that the property is leased to a corporation of which the Commissioner is president and a director. However, should votes be taken on various portions of the plan amendment rather than on the entire proposal as currently written, and the subject property is affected as part of a portion of the plan amendment, the Commissioner may be prohibited from voting on that portion of the plan amendment. In other words, if the effect of the amendment would be to change the land use designation of the subject property and the ratio of the size of the subject property to the area of land considered under the measure increases, the measure may result in "special" gain to the Commissioner.