CEO 87-96 -- December 10, 1987

VOTING CONFLICT OF INTEREST

CITY COMMISSIONER VOTING ON ANNEXATION

OF PROPERTY SOLD BY BUSINESS PARTNER

To: Ms. Andrea L. Moore, Assistant City Attorney, City of Coral Springs

SUMMARY:

A city commissioner is not prohibited by Section 112.3143, Florida Statutes, from voting on the annexation of property which was sold by the commissioner's business partner, with the commissioner benefiting from the transaction, where neither the commissioner nor his partner has any ongoing relationship with the owners of the property. Under the circumstances presented, annexation of the property would not inure to the special gain of the commissioner or of a principal by whom he is retained. However, the Commissioner would be permitted to abstain from voting, at his discretion, under Section 286.012, Florida Statutes.

QUESTION:

Is a city commissioner prohibited by Section 112.3143, Florida Statutes, from voting on the annexation of property which was sold by the commissioner's business partner, where neither the commissioner nor his partner has any ongoing relationship with the owners of the property?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff you have advised that James K. Gordon serves as a member of the Coral Springs City Commission. You also advise that he previously served as a consultant on land development matters to owners of property located outside the City. Later, the Commissioner entered into a partnership with an individual who purchased a portion of the property. The property was resold a few months ago to unrelated parties, and the Commissioner benefited from the transaction.

You advise that the new owners of the property have approached the City regarding a possible voluntary annexation. The Commissioner has no relationship whatsoever with any of the present owners and has no expectation of an employment or other relationship with them in the future. His business partner has no ongoing relationship with the current owners.

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 a local official from voting on a measure that inures to his special private gain or that would inure to the special gain of a principal by whom he is retained. As the Commissioner has no interest in the property and no relationship with the owners of the property, however, we conclude that the annexation of the property would not inure to his gain or to the gain of a principal by whom he is retained.

In addition, Section 286.012, Florida Statutes, provides:

No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act, and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is, or appears to be, a possible conflict of interest under the provisions of s. 112.311, s. 112.313, or s. 112.3143. In such cases said member shall comply with the disclosure requirements of s. 112.3143.

We previously have interpreted this provision as granting to an official the discretion to decide whether to abstain from voting on matters where there is or appears to be a conflict of interest under one of the provisions enumerated. See CEO 86-57. Our opinions have read the language "appears to be a conflict" as permitting abstention under a broad variety of circumstances. We note that the subject property was sold to its current owners a few months ago and that the Commissioner benefited from the transaction. Under these circumstances, we are of the opinion that there is a sufficient appearance of a conflict of interest as to permit the Commissioner to abstain from voting on matters relating to the annexation of the property.

Accordingly, we find that the Commissioner is not prohibited by Section 112.3143, Florida Statutes, from voting on the annexation of the subject property, but that the Commissioner would be permitted, at his discretion, to abstain from voting on the matter.