CEO 77-59 -- April 21, 1977

VOTING CONFLICT OF INTEREST

COUNCILMAN VOTING ON REZONING OF PROPERTY WHICH HE OWNS

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

Prepared by: Bonnie Johnson

SUMMARY:

Section 112.3143, F. S. 1975, provides that, although no officer may be prohibited from voting in his official capacity on any matter, when he chooses to vote on a "measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained," the conflict must be disclosed via the filing of a Memorandum of Voting Conflict. Such conflict is constituted where a city councilman votes on the rezoning of property which he owns, as the ownership of such property constitutes a personal or private interest and he would stand to gain or lose as a direct result of the vote. Therefore, should the councilman exercise his right to vote on the rezoning, he must file a Memorandum of Voting Conflict, CE Form 4, within 15 days after the vote occurred.

QUESTION:

Would a voting conflict of interest be created were I, a city councilman, to vote on an official zoning map which would alter the status of a piece of property I own from "business" to "residential"?

This question is answered in the affirmative.

You advise in your letter of inquiry that, in your capacity as a city councilman, you anticipate being called upon to vote on the adoption of an official zoning map of the city. The proposed map upon which the vote will be taken, if adopted, would have the effect of changing the only property you own in the city from a "business" status to "residential." You further advise that all property within the corporate limits of the city is being considered.

The Code of Ethics for Public Officers and Employees provides in relevant part as follows:

Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, 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. [Section 112.3143, F. S. 1975.]

Therefore, in order to create a voting conflict of interest, the voting officer must have a personal, private, or professional interest in the matter up for vote, and the measure must inure to his special private gain. Whether the measure inures to your special private gain is a question of whether the interest which you hold is such that you would stand to gain or lose as a direct result of the outcome of the council's decision. See CEO's 76-24 and 76-209.

Your ownership of property within the area being considered constitutes a personal or private interest in the measure to be voted upon. As you have stated in your reply to the working draft of this opinion, you have been informed that business property is worth more than residential property. Therefore, you would stand to gain or lose in terms of the value of your property as a direct result of the council's decision on the zoning map.

Accordingly, should you vote on the matter -- whether you vote for it or against it -- you are required to file, within 15 days after the vote occurred, a Memorandum of Voting Conflict, the vehicle for which is CE Form 4, a copy of which is enclosed. This will satisfy your legal liability, should you choose to vote on the matter. You may, however, choose to abstain from voting pursuant to s. 286.012, F. S. 1975, and in that case you need not file a Memorandum of Voting Conflict.