CEO 88-37 -- June 9, 1988

CONFLICT OF INTEREST; VOTING CONFLICT

CITY COMMISSIONER AND COMMUNITY REDEVELOPMENT AGENCY

MEMBER OR RELATIVES PURCHASING PROPERTY FROM CITY

IN COMMUNITY REDEVELOPMENT AREA

To: (Name withheld at the person's request.)

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were a member of a city council and a community redevelopment agency to purchase from the city property located in the community redevelopment area. However, as Section 112.313(7) does not apply to contractual relationships of a public officer's spouse or brother, either of these individuals could participate in the purchase of the property from the city. Under Section 112.3143, Florida Statutes, the city council member would be prohibited from voting on the sale of the property to his spouse, but would not be prohibited from voting on the sale of property to his brother.

QUESTION 1:

Would a prohibited conflict of interest be created were a member of a city council and a community redevelopment agency or his spouse or brother to purchase from the city property located in the community redevelopment area?

This question is answered in the affirmative with respect to the council member, but in the negative with respect to his spouse and brother.

Through your letter of inquiry and subsequent correspondence, we have been advised that .... serves as a member of the Fort Walton Beach City Council and as a member of the Community Redevelopment Agency there. He questions whether he may purchase property owned by the City and located within the community redevelopment area. Further, he questions whether his spouse or his brother could take part in the purchase of the property.

In a previous opinion, CEO 84-85, we advised that a city council member would be prohibited from purchasing surplus city land for use as his residence. That opinion referred to prior opinions to the effect that members of governing bodies of counties and municipalities may not purchase surplus property by bid at auction or by sealed bid, based upon the prohibition of Section 112.313(7)(a), Florida Statutes. That statute provides in relevant part:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties.

You have referenced Section 112.313(7)(a)1, Florida Statutes, which provides:

When the agency referred to is that certain kind of special tax district created by general or special law and is limited specifically to constructing, maintaining, managing, and financing improvements in the land area over which the agency has jurisdiction, or when the agency has been organized pursuant to chapter 298, then employment with, or entering into a contractual relationship with, such business entity by a public officer or employee of such agency shall not be prohibited by this subsection or be deemed a conflict per se. However, conduct by such officer or employee that is prohibited by, or otherwise frustrates the intent of, this section shall be deemed a conflict of interest in violation of the standards of conduct set forth by this section.

However, we find that this exemption is not applicable to community redevelopment agencies created under Chapter 163, Florida Statutes.

First, in CEO 84-4 and CEO 82-32 we advised that the exemption would not apply to special districts created by city or county ordinance, as opposed to those created by general or special law. Community redevelopment agencies are created by resolution or ordinance of a county or municipality. See Sections 163.355 through 163.357, Florida Statutes. In contrast to the requirement of Section 112.313(7)(a)1 that the district be "created by general or special law," we note the definition of "special district" contained in Section 218.31(5), Florida Statutes, which defines that term to mean a local unit of special government "created pursuant to general or special law . . . ."

In addition, we find that a community redevelopment agency is not a " special tax district" because it has no power to levy ad valorem taxes. In CEO 85-80 we advised that a housing finance authority granted no taxing power and not organized under Chapter 298, Florida Statutes, did not come within the terms of Section 112.313(7)(a)1. Community redevelopment agencies are funded out of taxes levied by other governmental entities. In State v. City of Daytona Beach, 484 So. 2d 1214 (Fla. 1986), the Florida Supreme Court approved the levy of taxes by governmental entities for community redevelopment purposes. However, we do not understand this case to mean that a community redevelopment agency actually is a special tax district.

Section 112.313(7) applies only to the employment or contractual relationships of a public official and not to those of his spouse or other relatives. Therefore, neither the brother nor the spouse of the Council member would be precluded from taking part in the purchase of the subject property. The Council member would not be prohibited from owning any property within the community redevelopment area. As we noted in CEO 86-13, community redevelopment agency members are required to disclose interests they may have in property located within a community development area.

This question is answered accordingly.

QUESTION 2:

Is a city council member prohibited by Section 112.3143, Florida Statutes, from voting on the purchase from the city by his spouse or his brother of property located within the community redevelopment area?

This question is answered in the affirmative with respect to the council member's spouse, but in the negative with respect to his brother.

In a telephone conversation with our staff, you advised that the subject property is titled in the name of the City rather than in the name of the Community Redevelopment Agency. Therefore, we understand that the City Council acting in that capacity, rather than as the Community Redevelopment Agency, would be involved in the sale of the subject property.

Regarding voting conflicts of interest for local officials, the Code of Ethics 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 (1987).]

This provision prohibits a city council member from voting on any measure inuring to his special gain or to the special gain of a principal by whom he is retained.

In previous opinions concerning an official voting on his spouse's interests, we have found that what inures to the special gain of the official's spouse also would inure to the official's special gain. See, for example, CEO 85-42, CEO 83-59, and CEO 83-29. On the other hand, we have found no voting conflict of interest with respect to measures benefiting other relatives of a public official. For example, in CEO 85-27 we advised that a city council member was not prohibited from voting on the condemnation of property owned by his mother.

Accordingly, we find that the subject City Council member would be prohibited from voting on the purchase from the City of property located within the community redevelopment area by his spouse, but would not be prohibited from voting to sell the property to his brother.