CEO 91-18 -- March 7, 1991

VOTING CONFLICT OF INTEREST

CITY COUNCILMAN VOTING ON MATTERS CONCERNING ROAD PROJECT

NEAR LAND OWNED BY HIM

To: Dell de Chant, Member, New Port Richey City Council

SUMMARY:

A city council member is not prohibited by Section 112.3143(3), Florida Statutes, from voting on the alignment of proposed road project, where the member owns property in the area but would not be directly affected by the configuration of roads. As other alignments could be considered which may indirectly impact the property of the member, and as 385 other property owners in the area will also be affected by varying degrees, the proposed project cannot be said to inure to the "special" gain or loss of the council member. CEO 87-95 and CEO 84-80 are referenced.

QUESTION:

Are you, a member of a city council, prohibited by Section 112.3143(3), Florida Statutes, from voting on matters concerning a road project, when one of the proposed routes being considered will not directly affect property owned by you, but other routes under consideration could?

Your question is answered in the negative.

In your letter of inquiry you have advised that you are a member of the New Port Richey City Council. You advise that the City Council has been asked to consider a change in the road system of the downtown area, in order to assist traffic flow. The funding for the project is expected to come from the federal Department of Transportation through the Florida Department of Transportation, and from the City. You advise that the project has been approved as top priority by the local Metropolitan Planning Organization.

The proposed project consists of making either one or two streets in the downtown area into one-way streets. There areseveral proposed routes being considered, one of which previously was approved by the City Council when it was composed of different Council members. Although the proposed alignment previously was approved, it is subject to change. Any changes would have to be approved by both federal and state transportation agencies.

You advise that a public hearing on the proposed route is scheduled in the near future. After the public hearing, it is anticipated that the project will proceed. You anticipate several opportunities in the coming months to vote on items affecting the project. These votes are expected to include funding for the project, authorization to condemn the right-of-way, selection of contractors, and decisions on the actual road placement.

There are approximately 385 property owners who will be affected in varying degrees by the alignment of the road. Some owners will actually lose some of their property through condemnation proceedings. Many owners will lose some access to their property because of the reconfiguration of the one-way roads. Still others may benefit because the new alignment will be designed to encourage more traffic through the City's downtown area in commercial areas that are not heavily trafficked currently. The City as a whole will benefit by the project since the road is designed to meet the goals of the City's comprehensive plan.

Finally, you relate that you presently own property in an area east of the proposed project. Under the alignment presently being considered, your property will not be in the area of one-way traffic or in any other manner be affected by the project. Alternative alignments, however, could have some impact on your property. One of the other identified alternatives, although not a strong contender, could provide for an access road to the one-way street which could have the affect of emptying traffic onto the street next to your home. The result could be an increase to the value of your property if it were rezoned, or a decrease in value if the increased traffic flow were considered to be a nuisance.

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 (1989).]

This provision prohibits a local official from voting on a matter which inures to his special private gain. However, we are of the opinion that you are not prohibited from voting on matters affecting the proposed alignment of the project which is presently being considered. In CEO 87-95, we advised that no voting conflict of interest would be created were a member of an expressway authority to vote on the corridor for an eleven mile long expressway, where the member owned a 10 percent interest in a 30 acre parcel located either near the proposed expressway or where a portion of the parcel would be required to be taken for the right-of-way. As the effect of the proposed corridor on the parcel was not clear and construction of the expressway would require acquisition of property from 650 owners, the proposed corridor could not be said to inure to the special private gain or loss to the authority member. See also CEO 84-80, where we determined that no voting conflict of interest would be created were a member of a city-county planning commission to vote on a down-zoning proposal encompassing 700 lots owned by approximately 560 persons in the neighborhood were he resided. There, we advised that the commission member would not receive any special gain because the size of the class of persons affected by the down-zoning was so large and because under the circumstances any gain or loss to him was too speculative.

Here we note that the proposed route presently under consideration could affect 385 property owners in the area. You indicate that project as presently proposed will not have any impact on your property. Further, even if other proposed routes are considered because the current proposal is abandoned, it cannot be determined at this stage of the process whether the property you own will be affected in any degree. Under these circumstances, we conclude that the project presently under consideration would not inure to your "special private gain." Although we are reluctant to address other proposals which may at some point be considered if the present configuration is excluded from consideration, based upon the information you have provided we do not believe that any of the alignments which you indicate could be considered would inure to your special private gain, as long as your property is not required for the project or otherwise directly affected.

Accordingly, we find that you are not prohibited from voting on the proposed transportation project currently being considered, or on any other alignment that does not directly affect your property.