CEO 87-95 -- December 10, 1987

VOTING CONFLICT OF INTEREST

EXPRESSWAY AUTHORITY MEMBER VOTING TO LOCATE

PROPOSED EXPRESSWAY NEAR LAND OWNED BY HIM

To: Mr. Richard R. Ellington, General Counsel, Palm Beach Expressway Authority

SUMMARY:

An expressway authority member is not prohibited by Section 112.3143, Florida Statutes, from voting on the corridor of a proposed 11 mile long expressway, where the member owns a 10 percent interest in a 30 acre parcel of land and where the parcel would be located close to the right-of-way of the expressway or a portion of the parcel would be required to be taken for the right-of-way. As the effect of the proposed corridor on the property is not clear and as construction of the expressway will require the acquisition of property from 650 owners, the proposed corridor cannot be said to inure to the "special" gain or loss of the authority member. CEO 84-80 is referenced.

QUESTION:

Is a member of an expressway authority prohibited by Section 112.3143, Florida Statutes, from voting on the corridor of a proposed 11 mile long expressway where the member owns a 10 percent interest in a 30 acre parcel of land and where either the parcel would be located close to the right-of-way of the expressway or a portion of the parcel would be required to be taken for the right-of-way?

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

In your letter of inquiry and telephone conversations with our staff, you have advised that Mr. Phillip D. O'Connell, Jr. serves as a member of the Palm Beach Expressway Authority, which has been created under Part V, Chapter 348, Florida Statutes. You advise that the Authority has been studying various routes for corridors of a proposed east/west toll road through studies conducted for it by a consulting engineering firm. During Phase I of the engineers' studies, a general area was recommended to the Authority as being the most feasible of several routes studied. The Authority then directed the engineers of Phase II to recommend a specific corridor within the study area and to prepare preliminary feasibility reports as to costs of construction, land acquisition, tolls, and related matters.

Phase II of the engineers' report is now complete and is being presented to the Authority for final consideration. The report identifies properties within the proposed path that might be required to be taken after the ultimate construction design of the expressway has been completed. If the Authority votes to accept the proposed corridor, an environmental impact study will be required prior to the filing of a right-of-way map or the acquisition of any of the proposed right-of-way. No monies have been appropriated or expended for any matters beyond the Phase II report. After the environmental impact study is completed, the Authority normally will file a right- of-way map, which under Chapter 337, Florida Statutes, limits improvements which property owners within the proposed right-of-way can make on their property. Following that, the engineering design of the expressway would be done, at which time it would be known exactly what properties would have to be taken and what properties would be located adjacent to the right-of-way. Acquisition of properties would begin after the design is completed, you advise, although it is possible that acquisition could begin after the filing of the right-of-way map.

You advise that the subject Authority member has a 10 percent beneficial interest in a land trust which owns a 30 acre parcel of undeveloped land. Depending on the ultimate engineering design of the expressway, a portion of the final route of the expressway may cross this property, or it may run adjacent to the property. You have advised that the proposed expressway is 11.2 miles long, and that according to the engineers' preliminary estimate, the Authority will be required to spend $187 million for property acquisition. It appears that property will have to be acquired from approximately 650 owners, involving at least that many parcels of property.

Finally, you have advised that the county is in the process of studying another proposed road which will pass directly by the subject property. The right-of-way alignment for this road has not been determined yet. If an expressway interchange were to be built there, you advised, the subject property probably will be needed. However, if no interchange is constructed the property probably will not be taken.

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).]

To the extent it is relevant to our inquiry, this provision prohibits a local official from voting on a matter which inures to his special private gain.

In our view, this provision is applicable to members of an expressway authority. In previous opinions we have applied this provision to commissioners of an inland navigation district (CEO 85-19), commissioners of an erosion prevention district (CEO 87-14), trustees of a community college (CEO 87-21), and supervisors of a community development district (CEO 87-66). We are of the opinion that the term "local public officer" should be interpreted by analogy with the definitions of "local officer" and "state officer" provided in the financial disclosure law, Section 112.3145, Florida Statutes. In that provision, the term "state officer" includes appointed members of boards having statewide jurisdiction, and the term "local officer" includes appointed members of expressway authorities. See Section 112.3145(1)(a)2 and (c)2, Florida Statutes.

However, we are of the opinion that the Expressway Authority member is not prohibited from voting on the proposed corridor of the expressway. In CEO 84-80 we advised 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 700 lots owned by approximately 560 persons in the neighborhood in which he resided. There, we advised that the commission member would not receive any special gain because the size of the class of persons affected by the down-zoning was so large and because under the circumstances any gain or loss to him was speculative.

Here, we note that the proposed expressway will extend over 11 miles and will affect 650 owners of property along its route. Further, at this stage of the process it cannot be determined whether any of the subject property will have to be taken as part of the right-of-way for the expressway. Under these circumstances, we conclude that the proposed corridor of the expressway would not inure to the "special private gain" of the Authority member.

Accordingly, we find that the Expressway Authority member is not prohibited from voting on the corridor of the proposed expressway.