CEO 87-88 -- December 10, 1987

VOTING CONFLICT OF INTEREST

CITY BOARD OF ADJUSTMENT MEMBER VOTING ON PETITION

OF CHURCH LOCATED ADJACENT TO MEMBER'S PROPERTY

To: Mr. Darnell Rhea, Member, Board of Adjustment, City of Gainesville

SUMMARY:

A city board of adjustment member is prohibited by Section 112.3143, Florida Statutes, from voting on a petition of a church to establish a school on church property located adjacent to the board member's residential property. Under the circumstances presented, it appears that the board member would stand to gain or lose as a result of the decision on the petition. CEO's 76-24, 79-66, and 84-116 are referenced.

QUESTION:

Are you, a member of a city board of adjustment, prohibited by Section 112.3143, Florida Statutes, from voting on the petition of a church located adjacent to your property to have a school on its property?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you serve as a member of the Board of Adjustment of the City of Gainesville. You advise that recently the Board heard a petition from a church requesting permission to have a school on the church's property. The property is located in a residential neighborhood and is adjacent to your property. Notices were sent to property owners within 300 feet of the church's property, you advise, so that you were one of 82 neighbors who were notified by the City of the pending petition. At the hearing, supporters of the church's petition argued that the school would benefit the neighborhood or, at least, would not harm the neighborhood. On the other hand, people from the neighborhood argued the opposite. The Chairman of the Board declared that an equal case could be made either way. You advise that you declared a conflict of interest and stepped down from the Board based upon the advice of the City Attorney.

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).]

Under this provision, a local official is prohibited from voting on a measure which inures to his special private gain or to the special gain of a principal by whom he is retained. Regardless of whether the official feels that he can be impartial, the law requires the official to abstain from voting in these types of matters. The decision of whether to abstain is for the Board member to make, but failing to abstain when required to do so by the law may result in the imposition of the penalties provided in Section 112.317(1), Florida Statutes, which range from public censure and reprimand to removal from office and may include a civil penalty of up to $5,000.

Even if an official is not required to abstain by Section 112.3143(3), Florida Statutes, he still may have the discretion to choose to abstain where there is or appears to be a conflict of interest under one of the provisions of the Code of Ethics. Abstention in these circumstances is permitted by Section 286.012, Florida Statutes, which is discussed in opinion CEO 86-57.

In previous opinions, we have advised that a voting conflict of interest is created where the public official or the principal by whom he is retained would stand to gain or lose as a result of the outcome of the decision. See CEO 84-116 and CEO 76-24. You have argued that because one side believed that the church's petition would result in benefiting the neighborhood, and the other side argued a loss to the neighborhood, the net effect would be that each cancels out the other, and you would not stand to gain or lose. However, in our view, regardless of which side was correct, it appears that there would be an effect on your property, which is located adjacent to the church. In contrast, see CEO 79-66, where we advised that no voting conflict of interest was created where a board of adjustment member voted on a matter affecting property located approximately one-half mile from the board member's residence.

Accordingly, we find that you were correct in abstaining from voting as a member of the Board of Adjustment on the petition of the church to establish a school on property located adjacent to your property.