CEO 93-19 -- June 11, 1993

VOTING CONFLICT

TOWN COUNCIL MEMBER VOTING ON TITLE DISPUTE

RESOLUTION AND VOTING ON SIDEWALK CONSTRUCTION

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

SUMMARY:

A member of a town council is not prohibited by Section 112.3143, Florida Statutes, from voting on a measure to resolve a title dispute between the town and private property owners because, unlike a measure under which property claimed by her would be included in the dispute resolution, the measure in question would not include property claimed by her and, thus, would not inure to her special private gain.

The member would be prohibited from voting on measures to place a town sidewalk on a route which would include property claimed by the member because the sidewalk would impair the member's possession of and title to the property, and because the sidewalk could constitute a governmental taking necessitating legal services on behalf of the member and compensation to her from the town. CEO's 93-10 and 90-71 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 concerning title to real property?

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

CEO 93-10 (our advisory opinion issued to you and adopted on April 22, 1993) answered a similar, yet materially different, question. You now inquire whether Section 112.3143 prohibits your voting on the measure discussed in CEO 93-10, under a factual scenario in which "[you] remove [your] property from the [o]rdinance and do not participate in any exchange of quit claim deed or road right of way conveyance with the [T]own," that is, under a scenario in which neither you nor your property are included in the title-dispute-resolution with the Town.

Our finding of a voting conflict in CEO 93-10 was based upon the measure in question in that opinion having definite, tangible effects upon you and your property (which was included in a small number of similarly situated properties). Therefore, since neither you nor your property would be subject to those definite, tangible effects, by virtue of not being included in the title-dispute-resolution measure, we find that you would not be prohibited by Section 112.3143 from voting on such a measure. However, please keep in mind that small or subtle distinctions in a measure to be voted on, its factual underpinnings, or its effects on you not apparent from the factual scenario set forth above and in CEO 93-10 could constitute a separate and distinct situation with a voting conflict potential not addressed by this opinion or CEO 93-10.

QUESTION 2:

Does the voting conflicts law prohibit you from voting on measures to construct sidewalks in the Town, including sidewalks along River Road (the road on which your property is located)?

In addition to the facts set forth in CEO 93-10 (our opinion previously issued to you), we are advised by other letters and written material sent from you or at your direction and by telephone conversation between you and our staff that the Town is contemplating further sidewalk construction. Your materials also discuss sidewalk construction that has apparently already taken place, including:

. . . .135 homes and businesses adjacent to the 8,212 linear feet of sidewalk that has been built.

. . . .at the request of the Town, the Clay County Public Works Department also constructed a sidewalk 6 feet wide from Kingsley Avenue north to Bellair Boulevard. This sidewalk is approximately 2,800 feet in length and has 32 homes adjacent to it, this equates to 1 home for every 38 feet of sidewalk.

. . . .the Clay County School Board constructed and [sic] 8 feet wide sidewalk along a portion of Stiles Avenue and Smith Street in the vicinity of Orange Park Elementary School.

Your materials advise us that "[a]ll of the aforementioned sidewalks have been built upon various dedicated street and road rights-of-way owned by the Town of Orange Park or Clay County," that "none of these rights-of-way have ever been disputed or challenged," and that the sidewalks constructed by the School Board "were constructed upon property owned by the District School Board of Clay County." Further, your materials advise us that "the proposed River Road sidewalk (the sidewalk affecting your property) would pass 40 homes and would have a length of approximately 4,800 linear feet" and that "[t]his would equate to 1 home for every 120 linear feet of sidewalk." In addition, your materials advise that sidewalk measures to come before the Town Council would not provide for condemnation of property for sidewalks or for special assessments for properties served by sidewalks and would not "similarly directly affect you or your property financially."

The applicable portion of Section 112.3143, Florida Statutes, the voting conflicts law, is set forth in the opinion previously issued to you, CEO 93-10. That law prohibits your voting on measures which would inure to your special private gain or to that of certain other enumerated persons or entities.

It is difficult to glean a definite voting scenario from the facts you have represented to us. Since the particular facts or nature of a measure coming before the Town Council for a vote will be determinative of whether you are presented with a voting conflict as to that measure, we can only provide you with general advice regarding your question.

In your situation as in others, the size of the class of persons to be affected by a particular measure, and not a combination of separate measures, is relevant in determining whether you would be presented with a voting conflict. If the class is large and if there are not circumstances unique to members of the class which materially distinguish the measure's effect upon them, as opposed to its effect upon the balance of the members of the class (see, for example, CEO 90-71 and our opinions cited therein), then the gain to public officers who are members of the class likely would not be "special" under the voting conflicts law, and thus their voting on the measure not be prohibited by it.

We find that Town Council measures which are necessary in order for sidewalks to be constructed in the future are measures which are different from past measures to construct different sidewalks, and we find that sidewalks constructed by other governmental entities without the need for approval by the Town Council cannot be said to be part of Town Council measures concerning future sidewalk construction. Therefore, the persons already affected by these past measures cannot be included in the number of persons constituting the class to be affected by future Town sidewalk measures. Thus, we find that a measure to construct a sidewalk affecting 40 homes (such as the River Road sidewalk set forth in your materials) would not affect enough persons in order for its effect not to be considered "special" under the voting conflicts law. Similarly, property that might be included in subsequent sidewalk measures would not be part of the class affected by a measure pertaining only to the 40 homes.

Also, assuming that a measure would approve a number of sidewalks such that the houses of a large class of persons would be affected by sidewalks, the effects of the sidewalks still would have to be materially the same for each property in order for its owners to be counted as members of the class. Therefore, persons whose sidewalks are to be placed upon land that they do not dispute that the Town owns or has a right to place sidewalks upon are in a materially different position from yourself and other homeowners disputing real property matters with the Town. Thus, those persons cannot be considered part of the class containing yourself and the other homeowners disputing Town claims.

Consequently, it appears under the facts you present that the class similarly affected by a sidewalk measure only would contain 40 homes. Therefore, we find that the "size of the class" test would not shield you from a voting conflict involving such a measure.

Regarding the issue of gain or loss (see, for example, CEO 90-71), even though you represent that the Town would not formally condemn a portion of your property for a sidewalk under a measure, we find that the placement of a public sidewalk on property you claim nevertheless would tangibly affect you in that it would impair your physical use and possession of the property occupied by the sidewalk; would further cloud your title to the property; could constitute an "adverse condemnation" or other taking-in-fact, by governmental actions or behavior, of property owned by you, thereby entitling you to monetary compensation from the Town; and likely would necessitate your purchase of legal services to protect your rights or interests in relation to the placement. Therefore, we are of the opinion that such a measure would be one which would "inure to your special private gain" and, consequently, would require you to follow the declaration, abstention, and filing requirements of the voting conflicts law.

This question is answered accordingly.