CEO 93-10 -- April 22, 1993

VOTING CONFLICT

TOWN COUNCIL MEMBER VOTING TO RESOLVE TITLE

DISPUTE CONCERNING HER PROPERTY

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

SUMMARY:

A member of a town council is prohibited by Section 112.3143(3)(a), Florida Statutes, from voting on a measure to resolve a real property ownership dispute between the town and private property owners, including the member. The member would stand to gain or lose from the outcome of the measure, and the class of property owners affected would be sufficiently small that the gain or loss would be "special" within the meaning of the voting conflicts law.

The member also would be prohibited from voting on whether to procure a survey for use in the property dispute resolution, because dispute resolution measures to come before the town council would be effectively killed absent a survey.

In addition, the member would be prohibited from voting on matters regarding the initiation or settlement of lawsuits between the town and the property owners. CEO's 92-52, 91-17, 90-71, and 90-20 are referenced.

QUESTION 1:

Does the voting conflicts law contained in Section 112.3143, Florida Statutes, prohibit you, a member of the Town Council of the Town of Orange Park, from voting on a measure which would resolve a dispute between the Town and several private property owners, including yourself, concerning title to property, including property upon which the Town proposes to construct a sidewalk?

Under the circumstances presented in this opinion, your question is answered in the affirmative.

By your letter of inquiry and accompanying materials, we are advised that you serve as a member of the Orange Park Town Council. You advise further that your residential property abuts the St. Johns River, that River Road (formerly called 'Boulevard' or New York Avenue) runs through your lot, along the riverbank, between your house and the water, and that the road provides access to forty-three homes "situated similarly to [yours] in the neighborhood."

Recently, you advise further, the Council decided to construct a sidewalk along the riverbank and conducted a title search to determine the extent of the Town's real estate interests and right-of-way along River Road, and affected private property owners formed an organization to aid in their own title search. Out of this research, you advise, some ambiguity arose as to the size, location, and ownership of the right-of-way of River Road, and both sides (the Town and the property owners, including yourself) "agreed [the dispute] would require judicial review for a final legal resolution." To avoid litigation, the Town's Mayor has proposed an agreement to establish the boundaries of the Town's right-of-way whereby the property owners would provide the Town with a deed for a fifty-foot right-of-way in exchange for the Town quit-claiming "everything else" to the abutting property owners, you relate. This resolution would require an ordinance by the Council. One Council member and a few citizens who oppose the ordinance have raised the question of the propriety of your voting on this matter, you relate, since "[your] property would be included in the quit-claim from the Town."

You relate that the purpose of the proposed ordinance is to clarify and resolve the boundaries of the right-of-way and that the "3-10-foot width of residual flat land" that the Town ordinance would quit-claim to you between the top of the bluff and the 50-foot right-of-way settlement line "would impart no additional value to [your] property." In addition, you relate that the riparian rights of River Road property owners in the neighborhood are reflected on most deeds, including yours, and "have been assumed and accepted by the Town for more than 100 years, as witnessed by the docks that have been constructed in front of the majority of homes without objection or conditions from the Town."

You relate that the proposed ordinance "would confer no monetary gain to [you]," that no public funds would be used to acquire or enhance your property, that the ordinance in question is merely to settle the boundary of the Town's right-of-way, and that you do not want to abstain in the matter because you have an obligation to your constituents and other citizens of the Town who do not want to undergo the delays and expense of a lawsuit.

The voting conflicts law portion of 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 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 of 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. [Section 112.3143(3)(a), Florida Statutes.]

This provision would prohibit your voting on a measure to resolve the property dispute if the resolution would inure to your special private gain.

In past opinions we have stated that whether or not gain is "special" would in part depend on the number of persons affected by the measure. See, for example, CEO 90-71 and the opinions cited therein. Thus, in accordance with our past opinions, we find that the class of persons to be affected by the property dispute resolution you describe is sufficiently small (43 homes) such that any gain to yourself as a property owner and member of the class would be "special" within the meaning of Section 112.3143(3)(a).

Turning to the issue of gain itself, assuming, as you relate to us, that the resolution "would confer no monetary gain to [you]" and that the Town's quitclaim of (or release of its interests in) property located between the top of the bluff and the 50-foot right-of-way settlement line "would impart no additional value to [your] property," we nevertheless find that the dispute resolution as outlined by you in your inquiry is a measure which would inure to your special private gain. The effect on you would have several aspects: the avoidance of title litigation (and its attendant legal expense) between the Town and yourself concerning ownership of real property in proximity to River Road, or the need for title litigation if the resolution proposal was not enacted or accepted; a quieting of title to your property as to the Town's claims, or, conversely, the persistence of the Town's claims as clouds on the title to your property if the resolution measure did not pass; and your giving up of an apparently valuable and at least colorable claim to the property the Town is claiming ownership of, in exchange for the Town's quitclaim (release) of its rights in other real property to you.

It is self-evident that achieving a desired result without having to bear the expense, or part of the expense, of a lawsuit is of value or gain to the person obtaining the result, and that having to litigate to obtain or attempt to obtain such a result would be monetarily detrimental. In addition, the removal or persistence of claims to property that help to establish or help to impede, respectively, the owner's clear and marketable title also cause gain or loss to the owner. Further, the exchange of deeds between two parties (i.e. the Town and yourself), while not per se a condemnation of your property by the Town in exchange for a monetary payment to you, is nevertheless akin to a condemnation proceeding in that you would be exchanging something of value (your interests in the fifty-foot right-of-way that you and the other property owners would deed to the Town) for something of value (the Town's interests in the residual flat land that the Town ordinance would quit-claim to you). We previously have found that the voting conflicts law prohibits a public officer from voting on a measure to condemn, purchase, or acquire the officer's property. See, for example, CEO 92-52 and CEO 91-17, and the opinions cited therein.

Accordingly, under the scenario set forth in this opinion, we find that your abstention, declaration, and filing are required by Section 112.3143(3)(a), should the property-dispute-resolution measure come before the Town Council.

QUESTION 2:

Would Section 112.3143(3)(a) prohibit your voting on a measure to order a survey regarding River Road and the disputed property?

The materials accompanying your letter inform us that the attorneys for both the Town and the property owners have agreed that sufficient and adequate legal descriptions as vehicles for settlement cannot be prepared until a surveyor has completed an appropriate survey, that such survey has not yet been (nor is it presently being) prepared, that a survey showing the center line of the paved portion of River Road has been ordered by the Town Manager, and that the Town Council may have to vote on measures concerning whether to order the above survey and who should pay for the survey.

Inasmuch as it appears that the property dispute resolution outlined in Question 1 cannot be considered or move forward without such a survey being done, a vote on whether to procure such a survey seems to us to be akin to a vote to refer a zoning petition to a city's zoning department prior to a vote on the proposed zoning change itself, where a vote not to refer the petition would have effectively killed the petition. Therefore, such a vote would not be merely preliminary or procedural, and thus Section 112.3143(3)(a) would prohibit you from voting on the survey measure. Compare Chavez v. City of Tampa, 560 So. 2d 1214 (Fla. 2nd DCA 1990). In addition, votes on measures such as whether to have the Town pay for the survey instead of the property owners, or vice versa, also would cause you gain or loss and thus would be prohibited by Section 112.3143(3)(a).

This question is answered accordingly.

QUESTION 3:

Would Section 112.3143(3)(a) prohibit your voting to initiate, not initiate, settle, or not settle, on behalf of the Town, litigation against the property owners (including yourself) regarding the above-described title dispute?

This question is answered in the affirmative. See CEO 90-20 and the opinions cited therein.