CEO 85-42 -- June 13, 1985

VOTING CONFLICT OF INTEREST

CITY PLANNING AND ZONING COMMISSION MEMBER VOTING ON PROJECTS DRAWN BY SPOUSE

To: Ms. Jane Moore, Chairman, Destin Planning and Zoning Commission

SUMMARY:

A city planning and zoning commission member would be prohibited by Section 112.3143, Florida Statutes, from voting on projects drawn by her spouse, who is an architect. City approval of a project would inure to the architect's special gain, as the approval would be required before the architect would earn a fee for preparing the full construction drawings of the project.

QUESTION:

Are you, a city planning and zoning commission member, prohibited by Section 112.3143, Florida Statutes, from voting on projects which have been drawn by your spouse, who is an architect?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you serve as Chairman of the Destin Planning and Zoning Commission. You also advise that your husband is a practicing architect whose projects are reviewed by the 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. 112.312(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 (Supp. 1984).]

This provision prohibits a municipal officer from voting on a measure which would inure to the officer's special private gain. In previous opinions, we have advised that if the measure under consideration would inure to the special private gain of the spouse of a public officer and if the spouse contributes to the support of the officer, the matter would inure to the special private gain of the officer. See, for example, CEO 83-29 and CEO 83-59. In a telephone conversation with our staff, you advised that your husband does contribute to the support of your household. Therefore, the question we must address is whether the Planning and Zoning Commission's review of your husband's projects would inure to his special private gain.

You also advised our staff that the Planning and Zoning Commission reviews all projects in the City of 10,000 square feet or more and makes recommendations to the City Council regarding the projects' compliance with City ordinances. To the best of your knowledge, none of your husband's contracts specifically provide that his compensation is based on City approval of the project. However, you advised that usually he prepares preliminary drawings for which he earns a fee and on the basis of which the City conducts its review of the proposed project. If the City approves of the project and if the developer decides to proceed with construction, full construction drawings are prepared, for which a separate fee is paid.

We have advised that where a fee or commission would be earned as a result of a rezoning decision, that decision would inure to one's special private gain. See CEO 85-37, regarding the issuance of title insurance where the sale of a parcel of property was contingent upon rezoning. Here, although your husband's contract with the developer does not provide that his fee is contingent upon City approval of the project, City approval is necessary for him to earn the fee for preparing the full construction drawings of the project. Therefore, we are of the opinion that approval of one of his projects would inure to his special private gain, as well as to the special gain of the developer.

Accordingly, we find that you are prohibited by Section 112.3143, Florida Statutes, from voting as a member of the Planning and Zoning Commission on projects drawn by your husband.