CEO 90-71 -- October 19, 1990

VOTING CONFLICT OF INTEREST

TOWN COMMISSIONER VOTING ON NEIGHBORHOOD

DREDGING AND IMPROVEMENT PROJECT REQUIRING

SPECIAL ASSESSMENT ON HIS PROPERTY

To: Richard Younger, Commissioner, Town of Melbourne Beach

SUMMARY:

A town commissioner is not prohibited by Section 112.3143(3), Florida Statutes, from voting on a dredging and improvement project which would benefit property in which he owns an interest, where the cost of the project would be assessed against the owners of property in the area. The commissioner jointly owns with his spouse one of 83 parcels which would be affected by the assessment. Therefore, the measures under consideration would not inure to the special private gain of the Commissioner.

QUESTION:

Are you, a town commissioner, prohibited from voting on various issues relating to a dredging and improvement project which would benefit the neighborhood in which you reside, where the cost of the project would be assessed against you and the other owners of property in the area?

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

In your letter of inquiry, you advise that you serve as a member of the Melbourne Beach Town Commission. You also advise that during the Fall of 1989, the Town Commission voted to undertake a dredging and improvement project of certain waterways in the Town for stormwater management and certain other purposes. You indicate that this project will be financed by special assessments pursuant to Chapter 170, Florida Statutes, against 83 residentially platted lots.

You advise us that you are a resident of the neighborhood in which the dredging and improvement project will be undertaken, that the lot which you and your wife own will be subject to the assessment, and that your home fronts on one of the canals which will be improved. Additionally, you inform us that at the time of the original approval of this project, you were not a member of the Town Commission but that you were active, along with your neighbors, in supporting the project.

You further have advised that the special assessment project is now in litigation and that, in the next few months, the Commission may be called upon to vote on various issues related to the project. Some of these issues may include whether to take steps to settle the litigation, whether to repeal the special assessment and seek dismissal of the litigation, whether to reimpose the assessment at a higher rate, or whether to drop the entire project. We have been advised that the 1990 Census indicates that the population of Melbourne Beach is approximately 3,000.

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, you must abstain from voting upon a measure that inures to your 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 while you might benefit from the proposed project through enhancement of the value of property in which you own an interest, this would be offset to an extent by the requirement of paying the special assessment.

The issue here is whether the project will inure to your special private gain. In CEO 77-129 we advised that the determination of whether a measure inures to the special gain of an official turns in part on the size of the class of persons who stand to benefit from the measure. Where a class is large, a special gain will result only if there are circumstances unique to the official which would enable him to gain more than the other members of the class. However, where the class of persons benefiting is extremely small, the possibility of special gain is much greater.

In CEO 90-64 we found that a city commissioner was prohibited from voting on a renovation project which would benefit property in which he owned an interest, where he owned a 50% interest in one of 55 parcels which would be affected by an assessment and where the parcels were owned by more than 40 persons or entities.

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 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).

Here, the property which you jointly own with your wife constitutes about 1.2% of the 83 separate lots which would be included in the assessment. While the previously cited situations involved larger classes, your ownership of 1.2% of the class of potentially assessable property which you and your wife own is very near our previously adopted threshold percentage necessary to find no voting conflict. It does not appear that your interests involve a significantly greater proportion of the total assessment (for example, you do not own half of the property affected). Therefore, since your proportionate share of the benefit of the improvement project and of the assessment is relatively low, we feel that any gain to be received by you would not constitute "special" gain within the contemplation of the voting conflict law.

Accordingly, we find that you are not prohibited from voting on matters relating to the proposed dredging and improvement project.