CEO 87-13 -- March 11, 1987

VOTING CONFLICT OF INTEREST

CITY PLANNING AND ZONING COMMISSION MEMBER VOTING ON

PROJECTS OF DEVELOPERS REPRESENTED BY

COMMISSIONER'S BROTHER-IN-LAW

To: Ms. Kathryn Marler Blue, Vice Chairman, Destin Planning and Zoning Commission, Destin

SUMMARY:

A city planning and zoning commission member is not prohibited by Section 112.3143(3), Florida Statutes, from voting on projects of developers represented by the commissioner's brother-in-law, although Section 286.012, Florida Statutes, would allow the Commission member to abstain from voting on such projects. Nor would the requirements of Section 112.3143(2), Florida Statutes, regarding disclosure prior to participating in discussion be applicable to these matters. CEO 78-13, CEO 85-27, and CEO 85-77 are referenced.

QUESTION:

Are you, a City Planning and Zoning Commission member, prohibited by Section 112.3143, Florida Statutes, from voting on projects of developers represented by your brother-in-law?

Your question is answered in the negative.

In your letter of inquiry you advise that you serve as Vice Chairman of the Destin Planning and Zoning Commission. You also advise that recently you married the brother of an attorney who represents real estate developers and who has represented developers in connection with projects coming before the Planning and Zoning Commission.

The Code of Ethics for Public Officers and Employees provides in relevant part:

No appointed public officer shall participate in any matter which inures to his special private gain or the special gain of any principal by whom he is retained, without first disclosing the nature of his interest in the matter. Such disclosure, indicating the nature of the conflict shall be made in a written memorandum filed with the person responsible for recording the minutes of the meeting and shall be incorporated in the minutes; if the disclosure is initially made orally at a meeting attended by the officer, the written memorandum disclosing the nature of the conflict shall be filed within 15 days with the person responsible for recording the minutes of the meeting and shall be incorporated in the minutes. A copy of such memorandum, which shall become a public record upon filing, shall immediately be provided to the other agency and shall be read publicly at the meeting prior to the consideration of the matter. For purposes of this paragraph, the term "participate" means any attempt to influence the decision by oral or written communication whether made by the officer or at his direction. [Section 112.3143(2)(b), Florida Statutes (Supp. 1986).]

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).]

Section 112.3143(3), Florida Statutes, requires a local official, such as a city planning and zoning commissioner, to abstain from voting on any measure which would inure to the official's special private gain or to the special gain of any principal by whom the official is retained. In previous opinions we have advised that this provision would not apply to a public official who is voting on a matter which would benefit his parent or his daughter-in-law. See CEO 85-77, CEO 85-27, and CEO 78-13. In accordance with the rationale of these opinions, we find that you are not prohibited from voting on projects of developers who are represented by your brother- in-law.

Section 112.3143(2)(b), Florida Statutes, requires an appointed official to disclose a conflict of interest before participating in discussion or otherwise attempting to influence a decision on a matter which inures to his special private gain or the special gain of a principal by whom he is retained. Similarly, this provision would not apply to limit your participation in discussion as a member of the Planning and Zoning Commission on projects represented by your brother-in-law.

Finally, Section 286.012, Florida Statutes, states:

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.

In CEO 78-13 we advised that this provision would permit a county commissioner to abstain from voting on a mining permit application of a company which was purchasing mineral interests owned by his daughter-in-law, where the sale was contingent upon the granting of the mining permit. The rationale behind that opinion was explained in CEO 77-62. Therefore, we are of the opinion that this provision would permit you to abstain from voting on projects represented by your brother-in-law. We previously have advised that abstentions under this provision do not require that a memorandum of voting conflict be filed. See, for example, CEO 78-34 and CEO 78-92.

Accordingly, we find that you are not prohibited from voting as a member of the Planning and Zoning Commission on projects represented by your brother-in-law, but that you would be permitted to abstain from voting on those projects. However, you need not file a memorandum of voting conflict either before participating in the discussion on those projects or after abstaining from voting on the projects.