CEO 91-17 -- March 7, 1991

VOTING CONFLICT OF INTEREST

CITY COUNCILMAN VOTING ON MATTERS CONCERNING ROAD PROJECT NEAR LAND OWNED BY HIM

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

SUMMARY:

A city council member is not prohibited by Section 112.3143(3), Florida Statutes, from voting on one of the road alignments being considered where the member owns property abutting the road but would not be directly affected by the proposed configuration of roads. Although property values in the area may increase as a result of the project, any gain resulting from the project would be too remote and speculative to constitute "special private gain" requiring the council member to abstain from voting. However, if another alignment is considered which would require acquisition of the member's property through eminent domain proceedings, the member would be required to abstain from voting on that measure as he would stand to receive a special private gain through the taking of his property. CEO's 88-51, 88-31, 85-87, 85-77, and 77-61, are referenced.

QUESTION 1:

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 configurations being considered will not directly affect property owned by you, but may increase property values in the area?

Question 1 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 are several 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 on the corner of one of the streets that under the current proposed alignment is planned to become a one-way street. While you do not anticipate any direct benefits or impacts to your property, you indicate that it is perceived that properties along this street may increase in value as commercial investments. If this perception is accurate, your property may also increase in value but it first would have to be rezoned.

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.

We have found no special private gain to exist in situations where there was uncertainty at the time of the vote as to whether there would be any gain or loss to the officer. In CEO 88-31 we advised that a city council member was not prohibited from voting on the annexation of property which adjoined property in which she owned an interest, where the developer seeking annexation planned to develop the property into a large planned unit development. In CEO 85-87 we advised that a city council member who was vice president of a bank was not prohibited from voting on the sale and redevelopment of property located one block from the main office of the bank. Similarly, we advised a school board member in CEO 85-77 that he was not prohibited from voting on matters relating to the use of the school district's property where he owned a clothing store near the site of the proposed school district administration complex.

Here we note that the proposed route presently under consideration could affect 385 property owners in the area. You indicate that the project as presently proposed will not have any direct impact on your property. While it is perceived that property values along your street will be enhanced for commercial development, even if property values do increase, your property would have to be rezoned for commercial usage. Under these circumstances, we conclude that the road project presently under consideration would not inure to your "special private gain" because any benefit to your property would be too remote and speculative.

Accordingly, we find that you are not prohibited from voting on measures concerning a proposed transportation project where property owned by you abuts a two-way street which will be converted into a one-way street under the proposed plan, which may have the effect of increasing property values in the area for commercial investments.

QUESTION 2:

Would a prohibited conflict of interest be created were you to vote on a proposed route for the road project which required the taking of your property through condemnation proceedings?

Question 2 is answered in the affirmative.

You have advised that one of the alternatives for the road project would require the acquisition of your property through eminent domain proceedings. Although this alternative is not presently being pursued, it has not been excluded from further consideration. However, the agencies involved, including the City Council, would have to approve this other alternative for consideration. You question whether you would be faced with a voting conflict of interest if the proposed route included the condemnation of your property.

In CEO 88-51 we advised that a county commissioner would be required to abstain from voting pursuant to Section 112.3143(3), Florida Statutes, were the county to acquire his property for use as a landfill by either purchase or eminent domain proceedings. A voting conflict was also found in CEO 77-61, where an expressway authority member was a majority stockholder in a corporation owning property which the expressway authority was seeking to acquire for an extension of the expressway. Based upon the foregoing, we are of the view that a proposal requiring the taking of your property would inure to your special private gain.

Accordingly, we find that the Code of Ethics for Public Officers and Employees prohibits you from voting on a proposed route which requires the taking of your property.