CEO 90-64 -- September 7, 1990

VOTING CONFLICT OF INTEREST

CITY COMMISSIONER VOTING ON NEIGHBORHOOD RENOVATION

PROJECT REQUIRING SPECIAL ASSESSMENT ON HIS PROPERTY

To: Norman White, City Attorney, City of Lake Wales

SUMMARY:

A city commissioner is prohibited by Section 112.3143(3), Florida Statutes, from voting on a renovation project that would benefit property in which he owns an interest, where part of the cost of the project would be assessed against the owners of property in the area. The commissioner owns a 50% interest in one of 55 parcels that would be affected; the parcels are owned by over 40 persons or entities; and the property's frontage is 2.7% of the total frontage upon which the assessment would be based. Although the commissioner's proportionate share of the benefit of the renovation and of the assessment is relatively low, the situation involves a clearly defined class that consists of a relatively small number of persons whose interests would be affected by the outcome of the vote on the proposed project. Therefore, the measure under consideration would inure to the special private gain of the Commissioner.

QUESTION:

Is a City Commissioner prohibited from voting on a renovation project that would benefit property in which he owns an interest, where part of the cost of the project would be assessed against the owners of property in the area?

Under the circumstances presented, your question is answered in the affirmative.

In your letter of inquiry, you advise that Mr. D. Patrick Cain serves as a member of the Lake Wales City Commission. You also advise that the City Commission is considering a project that would undertake a renovation of the streetscape along the primary entranceway into the downtown business area. The purpose is to provide an attractive and unique entranceway into the City and to enhance downtown property values in general, particularly the value of property abutting the street.

A portion of the estimated $300,000 to $500,000 needed for the project would come from a special assessment of the owners of property adjoining the street, which would be paid by the owners over a ten-year period. At present, it is contemplated that half of the cost would be borne by the city and the other half by the property owners. The affected property involves more than 55 parcels of various sizes, which you estimate to be owned by over 40 persons. The area has been platted into 145 lots, which have been combined in various ways into the 55 parcels. The assessments would be based upon the relative proportion of footage fronting the street, with approximately 7,770 feet of property subject to the assessment.

You advise that the City Commissioner and his brother jointly own one parcel that consists of seven of the lots, each of which is 30 feet in width. Therefore, he owns a 50% interest in property with 210 feet of frontage on the street, which amounts to 2.7% of the total that would be assessed.

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.]

Under this provision, the Commissioner must abstain from voting upon a measure that inures to his special private gain. We have advised that a conflict is premised upon whether the official would stand to gain or lose as a result of the outcome of the vote, rather than upon simply whether the official would gain from the adoption of the measure. See CEO 76-24 and CEO 84-116. Here, it appears that the Commissioner would benefit from the proposed project through enhancement of the value of property in which he owns an interest. Although this would be offset to an extent by the requirement of paying the special assessment, the fact of his having to pay also presents a potential conflict of interest.

Therefore, the principal issue here is whether the project would inure to the special private gain of the Commissioner. In CEO 77-129 we advised that whether a measure inures to the special gain of an official will turn in part on the size of the class of persons who stand to benefit from the measure. Where that class is large, a special gain will result only if there are circumstances unique to the official under which he stands to gain more than the other members of the class. However, where the class of persons benefiting from the measure is extremely small, the possibility of special gain is much more likely. By way of contrasting examples, no one expects a city commissioner to abstain from voting to set ad valorem tax rates simply because he owns real property in the city; on the other hand, a petition to rezone a parcel of property owned by an official clearly inures to that official's special gain.

Here, the property owned by the Commissioner constitutes about 1.8% of the 55 separate parcels that would be included. The property's frontage is 2.7% of the total frontage upon which the assessment would be based. He and his brother constitute one of the over 40 owners of the parcels (less than 2.5% of the owners involved). Although the Commissioner's proportionate share of the benefit of the renovation and of the assessment is relatively low, the situation involves a clearly defined class that consists of a relatively small number of persons whose interests would be affected by the outcome of the vote on the proposed project. For this reason, we conclude that the measure under consideration would inure to the special gain of the Commissioner.

We have concluded that no voting conflict was presented in other situations where the interests of the public official involved one percent or less of the affected class. See CEO 78-96 (38 out of 5,000 acres involved); CEO 84-80 (1 out of 500 persons whose property would be downzoned); CEO 85-5 (90% out of 250 residents affected); CEO 87-18 (300 out of 29,000 acres); CEO 87-27 (involving the rezoning of a town having a population of 210); and CEO 87-95 (1 out of 650 property owners affected).

However, in our view, these situations involved significantly larger classes. Here, there are 55 parcels affected and the class of owners who will be benefited by the proposed project numbers somewhat less. Although it does not appear that the Commissioner's interests involve a significantly greater proportion of the total assessment (in other words, he does not own half of the property affected), we conclude that the class affected is small enough that special gain will result.

Accordingly, we find that the subject Commissioner is prohibited from voting on the proposed renovation project.