CEO 92-34 -- July 17, 1992

VOTING CONFLICT OF INTEREST

SCHOOL BOARD CHAIRMAN EMPLOYED BY DEVELOPER

VOTING ON SCHOOL IMPACT FEES AND CREDITS

To: Mr. Michael D. Chiumento, Attorney for Flagler County School District (Palm Coast)

SUMMARY:

A school board chairman who is employed by the largest land developer in the county is not prohibited by Section 112.3143(3), Florida Statutes, from voting to recommend that the county commission adopt a school impact fee ordinance. The rationale expressed in CEO 86-35 is applicable. However, where the school board chairman's employer would likely receive impact fee credits as a result of its previous donation of land for public schools, voting to allow developers credit, the amount of such credit, and how credit would be applied would inure to the special private gain of the school board chairman's employer, because the class of developers potentially affected by impact fee credits is small. CEO's 90-25, 86-35, 84-116, 83-50, and 76-24 are referenced.

QUESTION 1:

Is a school board chairman who is also employed by the major land developer in the county prohibited from voting on school impact fee issues which may affect his employer?

Question 1 is answered in the negative.

Through your letter of inquiry and in telephone conversations with our staff, we are advised that Mr. Dennis Fitzgerald serves as the Chairman of the Flagler County School Board. The School Board, you advise, is presently investigating the implementation of a school impact fee for land and capital improvements. Included within that deliberation is the subsidiary issue of allowing a developer an impact fee credit for any lands or facilities that it may donate. You relate that the School Board will make a recommendation on these issues to the County Commission, and the County Commission will then consider adopting the School Board's recommendations in this regard.

We are further advised that the School Board Chairman is also employed by the major land developer in the County, which has obtained development orders for four County Developments of Regional Impact (DRI's). Two other developers have also received DRI approvals. All development orders exact donations for public school sites, and the Chairman's employer has executed an agreement with the County which includes a donation of 152 acres for future public school sites in addition to the 94 acres the developer has already donated for public schools. This agreement, referred to as the "Public Lands Dedication Agreement," also contemplates the provision of impact fee credits to the developer pursuant to Section 380.06(16), Florida Statutes.

In this context, you question whether a voting conflict of interest would be created were the Chairman to vote on issues involving impact fees.

Section 112.3143(3), Florida Statutes, provides in relevant part:

(a) No county, municipal, or other local public officer shall vote in his official capacity upon any measure which would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain of a relative or business associate of the public officer. 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.

(b) 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, when voting in said capacity.

This provision prohibits the School Board Chairman from voting on any measure which inures to his special private gain or to the special private gain of his principal, the land developer. We have previously advised that the requirements of this provision turn not on the nature of the official's vote--whether for or against the measure--but rather on whether he or his principal's interest is such the he or his principal would stand to gain or lose as a direct outcome of the measure. See CEO 84-116, CEO 83-50, and CEO 76-24.

Additionally, we have consistently opined that whether a measure inures to the "special" gain of an officer will turn in part on the size of the class of persons who stand to benefit from the measure. In CEO 86-35, which involved a factual situation similar to the one herein, we advised a member of a county commission who was employed by a developer constructing the largest single project in the county that he did not have a voting conflict of interest when he voted on an impact fee ordinance. There, we said

[w]here the class of persons affected by a particular measure is large, a 'special gain will result only if there are circumstances unique to the officer or his principal in which he stands to gain more than the other members of the class. In other words, where governmental action is through the enactment of legislation, rules, or ordinances of general applicability, the pertinent question is whether there are particular circumstances or aspects of the enactment under which the official's interests are impacted to a significantly greater (or lesser) degree than other members of the affected class.

We also recognized in CEO 86-35 that even though an enactment would, on its face, potentially apply to a large class of persons, it is possible that in practice the number of persons affected would be limited. Thus, although a large developer would generally be obligated to pay more to the County than a smaller developer in terms of total impact fees, there would be no competitive advantage or disadvantage because the amount of impact fee on a per unit basis for each identical type of unit would be the same.

Although you have not provided any specifics about the types or amounts of impact fees which the School Board may recommend, presumably they would be prospectively applied County-wide and in a uniform fashion. Therefore, based upon the rationale contained in CEO 86-35, we are of the view that neither the School Board Chairman nor his employer would receive any special private gain were he to vote to recommend that the County implement school impact fees in Flagler County.

Question 1 is answered accordingly.

QUESTION 2:

Would a voting conflict of interest be created were the school board chairman to vote on issues involving impact fee credits, where his employer would likely receive credit for previous donations of lands for public schools?

Your question is answered in the affirmative.

Notwithstanding the Public Land Development Agreement which contemplated providing the School Board Chairman's employer with impact fee credits, or Section 380.06(16), Florida Statutes, which requires local governments to establish and implement a procedure that credits a development order exaction or fee toward an impact fee or exaction imposed by local ordinance for the same need, it is our view that unique circumstances exist which would result in a special private gain to the School Board Chairman's employer were he to vote on such issues as whether to allow a developer impact fee credits, the amount of such credits, and how credits would be applied.

Clearly, the Chairman's employer is the largest land developer in Flagler County. Additionally, the developer has obtained DRI approvals for four developments. While two other developers have also obtained DRI approvals, it would appear that the Chairman's employer, having already agreed to donate a substantial amount of property for public schools, would be in a position to receive credits for these donations should the County implement such a policy. Thus, the class of developers potentially affected by this policy is small enough that the issue of credits could constitute a special private gain to the Chairman's employer. See CEO 90-25. We would therefore suggest that the School Board Chairman abstain from voting on issues involving impact fee credits and comply with the requirements set forth in Section 112.3143(3)(a), Florida Statutes, for disclosing voting conflicts of interest.

Question 2 is answered accordingly.