CEO 87-72 -- September 16, 1987

VOTING CONFLICT OF INTEREST

COUNTY COMMISSION MEMBER VOTING ON MEASURE

AFFECTING VALUE OF PROPERTY OWNED BY FORMER SPOUSE

To: Mr. Charles L. Bigelow, Jr., Member, Lee County Board of County Commissioners

SUMMARY:

A county commission member is not prohibited by Section 112.3143, Florida Statutes, from voting on a matter affecting property owned by his former spouse or the value of that property. Here, the commissioner has no interest in the property and would not receive any financial benefit as a result of the measure pending before the county commission.

QUESTION:

Are you, a county commission member, prohibited by Section 112.3143, Florida Statutes, from voting on a matter affecting property owned by your former spouse or the value of that property?

Your question is answered in the negative, under the circumstances presented.

In your letter of inquiry you advise that you serve as a member of the Lee County Board of County Commissioners. You further advise that the Commission soon will vote on a measure providing for the construction of a bridge with extensive approach roads connecting the cities of Cape Coral and Fort Myers. Five alternative routes have been proposed. One of these routes would require the taking of the home of your former wife. Another of these routes would be located near her home and could have a significant impact upon the value of the home. You have no financial, legal, or equitable interest in the home. However, you have the legal obligation to make the mortgage payment on the home. You have been advised by legal counsel that in the event of a taking of the subject property resulting in the satisfaction of the mortgage, you would continue to be obligated to your former wife for the mortgage balance. You question whether these circumstances will present you with a voting conflict of interest when the bridge construction issue comes before the Commission.

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 from voting on a measure which inures to your special private gain and from knowingly voting on a measure which inures to the special gain of a principal by whom you are retained. It does not address the question of whether an official must abstain because of possible bias or prejudice. See CEO 79-14.

We are of the opinion that under the circumstances presented a measure impacting on property owned by your former wife would not inure to your special private gain. Here, you have indicated that you have no interest in the property and would not receive any financial benefit from its sale.

Accordingly, we find that you are not prohibited by Section 112.3143, Florida Statutes, from voting on a matter affecting property owned by your former spouse or the value of that property.