CEO 87-86 -- December 10, 1987

VOTING CONFLICT OF INTEREST

CITY COUNCIL MEMBER VOTING ON DEVELOPMENT AGREEMENT

FOR CONSTRUCTION OF SHOPPING CENTER WHILE NEGOTIATING

FOR LEASE IN SHOPPING CENTER

To: (Name withheld at the person's request.)

SUMMARY:

A city council member would be prohibited by Section 112.3143, Florida Statutes, from voting on a proposed development agreement regarding the construction of a shopping center development, where he is negotiating for the lease or sublease of space in the shopping center. As the extent to which the Council member may gain will turn on the willingness of the developer to lease a favorable location upon favorable terms and conditions and as different arrangements may be possible for different tenants, it cannot be concluded that the development agreement would not inure to the special gain of the council member.

QUESTION:

Is a city council member prohibited by Section 112.3143, Florida Statutes, from voting on the approval of a proposed development agreement for a shopping center development, where he is negotiating for the lease or sublease of space in the shopping center?

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

Through your letter of inquiry and a telephone conversation with our staff, we have been advised that .... serves as a member of the Plantation City Council. He has entered into negotiations to lease space in a shopping center development currently in the construction stage within the City. Alternatively, he may sublease the space from a national company which would obtain the lease from the developer of the shopping center and then assign the lease to him. He is attempting to lease no more than 2,500 square feet in a project that includes 640,000 square feet of retail space as well as space for restaurants, offices, a hotel, and auxiliary uses.

The developer of the shopping center project has been meeting with City staff members regarding a development agreement for the construction of the project which will come before the City Council for approval. The Council granted site plan approval for the project in 1986 subject to a number of basic conditions, including the requirement of a development agreement. The proposed development agreement specifies in detail the requirements imposed by the City Council during its site plan approval and includes provisions for road improvements, landscaping, impact fee contributions, and the phasing of construction.

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 (1985).]

This provision prohibits a local official from voting on a measure which inures to his special private gain or to the special gain of a principal by whom he is retained. We previously have advised that a landlord is not a principal by whom a tenant is retained. See CEO 83-42.

We note that when it enacted the Code of Ethics the Legislature deemed it "essential to the proper conduct and operation of government that public officials be independent and impartial . . . ." See Section 112.311(1), Florida Statutes. Further, we note that the term "conflict of interest" is defined as "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest."

In our view, the subject Council member clearly is presented with a conflict of interest when called upon to vote on a development agreement pertaining to a project within which he is in the process of negotiating to lease space. He clearly would not be negotiating for a lease unless he expected to gain from the lease, yet the extent of his gain will turn upon the developer's willingness to lease a favorable location under favorable terms and conditions. As different arrangements are possible for each tenant, it is not appropriate to determine whether the Council member is prohibited from voting on the basis of the percentage of space he seeks to lease within the project. Under the circumstances presented, therefore, we cannot conclude that the development agreement would not inure to the special gain of the Council member.

Accordingly, we find that the subject Council member is prohibited by Section 112.3143, Florida Statutes, from voting on the proposed development agreement under the circumstances presented.