CEO 90-66 -- October 19, 1990

VOTING CONFLICT OF INTEREST

COUNTY COMMISSIONER VOTING ON PETITION FOR

COMMUNICATION TOWER WHERE HE IS INVESTOR IN

BUSINESS WHICH HAS NEGOTIATED FOR USE OF TOWER

To: Kenneth B. Cuyler, County Attorney, Collier County (Naples)

SUMMARY:

A county commissioner was not prohibited by Section 112.3143(3), Florida Statutes, from voting on a provisional use petition by a landowner for communication tower use when he was an investor in a limited partnership, the parent company of which had negotiated with the landowner for placement of television broadcasting facilities on a future communication tower but where there had been no commitment on the landowner's part to construct the tower, negotiations have continued, no lease contract has been entered into, and negotiations have also taken place with the owners of other communications towers which would be acceptable locations for the television facilities. Any gain or loss resulting from the provisional use to the partnership in which the subject commissioner is a limited partner is too speculative and remote to conclude that his vote on the provisional use petition would inure to his special private gain.

QUESTION:

Was a County Commissioner prohibited from voting on a provisional use petition by a landowner for communication tower use where the County Commissioner was an investor in a limited partnership, the parent company of which was negotiating with the landowner for placement of television broadcasting facilities on a future communication tower?

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

In your letter of inquiry you advise that . . . . is a County Commissioner in Collier County who was elected to the Commission in 1988. You also advise that on September 15, 1987, the Board of County Commissioners approved a provisional use petition submitted by a company for a communications tower located on property in the county which is owned by one of the County's large landowners. The company was the parent company of a television station which was attracting investors for the purpose of commencing broadcast operations but which, to date, has not done so. You advise that the original plan was for the company to build a communications tower on the landowner's property and lease space on the tower to tenants which would include the television station and, for unrelated purposes, County government. You further advise that the communications tower was not constructed during 1987-88 and that the provisional use was renewed on September 13, 1988, to expire in September, 1989.

You further advise that in December, 1988, the County Commission, including the subject Commissioner, approved a contract between the County and a radio equipment company for a communications system to serve County government. The staff of County government negotiated with the landowner concerning the possible placement of the necessary communication facilities on any future tower constructed by him at the original tower site. However, a communications tower was not constructed at that site during 1989.

You advise that a second company subsequently took over for the first company and on September 6, 1989, the second company was awarded tower construction permit rights and the control of the television station. You advise that in January, 1990, the Commissioner invested $50,000 in the television station and in February, 1990, cosigned a loan for $40,000, the proceeds of which loan were to go toward the operation of the station. The station's representatives have indicated to you that it has 13 limited partners, including the Commissioner. The station's representatives also have indicated that in 1989 and 1990 they negotiated with the owners of four of the seven tower sites which are available in the county for broadcasting purposes, including the landowner who could build a tower at some future date.

You advise that on May 8, 1990, the County Communications Director was advised that the provisional use for the landowner's tower site had expired. The Commission was informed by County staff that the County was faced with a situation where the contracts for the equipment and the guaranteed prices therein would expire on June 22, 1990. A third provisional use petition was submitted by the landowner to allow placement of a communications tower at the tower site, and this item was included on the Commission's June 19, 1990, agenda. On June 19, the Board of County Commissioners conducted a hearing on the provisional use application. Approval of a provisional use requires a "super-majority" of at least four affirmative votes of the five member Commission. At the time of the hearing, one Commissioner was absent, but the four remaining Commissioners, including the subject Commissioner, voted to approve the provisional use.

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 subject Commissioner was required to abstain from voting upon a measure that inured to his special private gain. The issue here is whether his vote on the provisional use petition inured to his special private gain. We have advised that the requirements of Section 112.3143 do not turn on the nature of the official's vote--whether it is for or against the measure--but rather on whether the interest which he holds is such that he or his principal would stand to gain or lose as a direct outcome of the decision. See CEO 84-116, CEO 83-50, and CEO 76-24.

In CEO 85-46, we concluded that a commissioner was not prohibited from voting on a petition for annexation of property, where the developer who employed the commissioner previously had owned the property and sold it, but retained a mortgage on the property and owned adjacent property. We reasoned that any gain or loss derived by the developer from the annexation would be too remote and speculative for us to conclude that the annexation inured to the special gain of the Commissioner's employer. In CEO 85-77, we determined that a school board member was not prohibited from voting on matters relating to the use of the school district's property where he owned a business near the site of a proposed school district administrative complex. There we concluded that any gain or loss resulting to the member's business would be too speculative and remote to allow us to conclude that any of the measures under consideration would inure to the special gain of the business.

Here, the subject Commissioner had an interest in a non-operational television station which might at some future date find itself in need of communication tower facilities. The Commissioner voted on a provisional use petition for communication tower construction submitted by the landowner who previously had been granted two similar petitions, but a communication tower had not been constructed during those previous permit periods. The television station continued to negotiate for tower space with three other tower owners, indicating that several options were available to the station and that any of those sites would be acceptable. There is no indication that lease rates from the landowner would be any different than those available from the other tower site owners. Under the circumstances presented, it is our opinion that any gain or loss resulting from the provisional use to the television station in which the subject Commissioner is a limited partner is too speculative and remote to allow us to conclude that his vote on the provisional use petition would inure to his special private gain.

Accordingly, we find that the subject Commissioner was not prohibited by Section 112.3143, Florida Statutes, from voting on the provisional use petition.