CEO 82-53 -- July 29, 1982

VOTING CONFLICT OF INTEREST

CITY COUNCILMAN VOTING ON REZONING OF PROPERTY SOLD BY REAL ESTATE FIRM WHICH EMPLOYS HIM

To: Mr. Michael Altes, Assistant Counsel, City of Jacksonville

SUMMARY:

A voting conflict of interest is created under Section 112.3143, Florida Statutes, where a city council member votes on the rezoning of property which is being sold by associates of a real estate firm with which he is associated. CEO 76-151 and Complaint No. 79-11, In re Jack C. Ganstine, are referenced as precedent. Therefore, if the subject councilman should vote on rezoning under these circumstances, he should file a Memorandum of Voting Conflict, CE Form 4, in accordance with Section 112.3143. As an alternative, he may abstain from voting as permitted by Section 286.012, Florida Statutes.

QUESTION:

Is a voting conflict of interest created where a city council member votes on the rezoning of property which is being sold by associates of a real estate firm with which he is associated?

Your question is answered in the affirmative.

In your letter of inquiry and in a telephone conversation with our staff you advise that Mr. Forrest Boone, a member of the Jacksonville City Council, is a licensed real estate broker associated with a real estate agency run by another broker. You also advise that the agency has contracted with a number of brokers and salesmen under which contracts their agency pays the office and business expenses in return for a percentage of the broker/salesmen's sales commissions. Each broker/salesman pays his own nonoffice expenses, and does not share or split sales commissions with other broker/salesmen except as they normally would with any other broker in the community.

Occasionally, you advise, a real estate contract provides that the sale will not be consummated unless the subject property is rezoned to a specified zoning category. Other broker/salesmen associated with the agency with which the Councilman is associated would have a financial interest in the property being rezoned, as their commissions would be conditioned on the consummation of the sale. You question whether the Councilman is required to file a Memorandum of Voting Conflict following his vote on bills rezoning property, the sale of which would financially benefit other broker/salesmen in the same real estate agency.

In a previous opinion, CEO 76-151, we found that a voting conflict of interest would be created under Section 112.3143, Florida Statutes, were a planning commission member to vote on a zoning change request involving property which was represented by the realty corporation with which he was associated. Similarly, in Complaint No. 79-11, In re Jack C. Ganstine, final order entered January 18, 1980, we found that a voting conflict of interest had been created under Section 112.3143, Florida Statutes, where a city council member voted on the opening of streets within a subdivision which was being sold by the realty firm with which he was associated as a salesman, although the council member stood to gain no commission from the sale of the property.

Accordingly, we find that under Section 112.3143, Florida Statutes, the subject Councilman should file a Memorandum of Voting Conflict (Commission on Ethics Form 4) if he votes on the rezoning of property which is being sold by an associate of the real estate firm with which he is associated. As an alternative to voting, the Councilman may abstain as permitted by Section 286.012, Florida Statutes.