CEO 85-37 -- May 23, 1985

VOTING CONFLICT OF INTEREST

PLANNING COMMISSION MEMBER EMPLOYED BY TITLE COMPANY BENEFITING FROM REZONING ACTION

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

SUMMARY:

A planning commission member who is employed by a title company is prohibited by Section 112.3143, Florida Statutes, from voting on the rezoning of a parcel of property, where the sale of the property and the issuance of title insurance is contingent upon the rezoning action. In this instance, the zoning amendment under consideration would inure to the special gain of a principal by whom the commission member is retained, the title company. CEO's 82-53 and 76-151 are referenced.

QUESTION:

Is a planning commission member, who is employed by a title company, prohibited by Section 112.3143, Florida Statutes, from voting on the rezoning of a parcel of property where the sale of the property and the issuance of title insurance is contingent upon the rezoning action?

Your question is answered in the affirmative.

In your letter of inquiry you advise that .... serves as a member of the Collier County Coastal Area Planning Commission, an advisory board to the Board of County Commissioners. You also advise that the Commission member is executive vice-president of a title company, although he does not own stock or have any other ownership interest in the company.

You advise that a client of the title company has entered into a contract to sell a parcel of property to a third party. If the contract is consummated, the title company will provide title insurance for their client on that parcel. The contract, however, is contingent upon the purchaser obtaining an amendment to the existing planned unit development zoning on a portion of the property. The proposed zoning amendment will be presented to the Planning 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. 112.313(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 (Supp. 1984).]

This provision prohibits a local public officer from knowingly voting on any measure which inures to the special gain of a principal by whom he is retained. In previous opinions we have found that a voting conflict of interest would be created under Section 112.3143, Florida Statutes, were a planning commission member or a city council member who is a realtor to vote on the rezoning of property, where the real estate firm with which the public officer is associated would receive a commission from the sale of the property and where the sale is contingent on the rezoning of the property. See CEO 82- 53 and CEO 76-151.

We find these opinions to be analogous to the present situation. Here, the Commission member's employer stands to gain a commission from the issuance of title insurance apparently as a direct result of the decision on rezoning of the property. Under these circumstances, we find that the zoning amendment under consideration by the Planning Commission would inure to the special gain of a principal by whom the Commission member is retained, the title company.

Accordingly, we find that the subject Planning Commission member is prohibited by Section 112.3143, Florida Statutes, from voting on the proposed zoning amendment.