CEO 91-61 -- October 25 1991

VOTING CONFLICT

CITY COMMISSIONER VOTING ON MEASURE TO EXTEND SIDEWALK

TO ENCIRCLE LAKE NEAR WHICH COMMISSIONER RESIDES

To: Robert J. Antonello, City Attorney, City of Winter Haven

SUMMARY:

A city council member is not prohibited from voting on a measure to extend a public sidewalk to encircle a lake near which she lives. Under Section 112.3143(3), Florida Statutes, the measure would not inure to the special gain of the member because no special assessment is being used to pay for the extension, no compensation would be paid the member if her property were used for a portion of the extension's route, and any more profitable or commercial use of the property occasioned by the extension's completion would be dependent on a zoning change. CEO's 90-64, 90-71, and 91-17 are referenced.

QUESTION:

Is a city council member prohibited by Section 112.3143(3), Florida Statutes, from voting on the proposed extension of a public sidewalk to encircle a lake which lies across a public road from the commissioner's residence?

Under the facts presented, your question is answered in the negative.

By your letters of inquiry and telephone conversation with our staff, we are advised that Ellie Threlkel is a City Commissioner of the City of Winter Haven. You advise further that the Commissioner resides across a public road from Lake Elbert, a lake of approximately 171 acres, which is encircled by the road. On the non-lake side of the road, there are approximately 39 residential homes surrounding the lake, including the Commissioner's home. On the lake side of the road, there are two residential homes. The population of the City is approximately 25,000. The Commissioner's property is zoned residential, single-family, low-density. A zoning change would be required in order for the property to be used for commercial or other more intensive uses.

A public sidewalk, 2,160 feet in length, runs along the lake, between the lake and the road. The City Commission is considering whether to extend the sidewalk to completely encircle the lake. Funding for the extension would come from general revenue, and thus no special assessment would be placed upon the property of the Commissioner or others. To complete the sidewalk, some private property may have to be condemned by the City. However, if an easement is needed over the Commissioner's property, she has consented to provide it without compensation or legal consideration. The Commissioner's property already has access to the lake. The purpose of the sidewalk extension is to provide safety for pedestrian traffic around the lake, you relate. Further, you advise that it is not known whether the extension of the sidewalk would increase the value of the Commissioner's property, and no property appraisals have been done in that regard.

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 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. [Section 112.3143(3)(a), Florida Statutes.]

This provision prohibits a local official from voting on a matter which inures to her special private gain.

At times, in considering questions such as yours, we have focused on the size of the class of persons to be benefited by a measure in determining whether the gain would be "special." See CEO 90-64 and CEO 90-71. However, we do not need such a numerical analysis here because, under the facts you relate, any gain from the measure, if present at all, is remote and speculative.

To begin with, since the sidewalk will be funded entirely from general revenue and there will thus be no potential financial assessment against the Commissioner's property, the measure would not be one which would cause the Commissioner to owe more money to the City. See CEO 90-64. In addition, since the Commissioner would be willing to allow placement of the sidewalk on her property, if necessary, without being paid compensation, we find the Commissioner's situation to be distinguishable from the facts present in CEO 91-17, where we found that condemnation of property did result in special gain to the owner, "condemnation" being important because it necessarily carries with it the possibility of a monetary payment to the owner whose property is utilized for the public improvement. Finally, since the current zoning of the Commissioner's property would preclude more profitable and intensive use of the property without a zoning change, assuming for the sake of argument that such a sidewalk extension would create real economic possibilities, and since effecting a zoning change would require many steps and be subject to many contingencies with the outcome of a request for rezoning by no means being certain, we find that any gain would be remote and speculative. See CEO 91-17.

Accordingly, we find that, under the circumstances presented, the subject City Commissioner would not be prohibited from voting on a measure to extend a sidewalk to encircle a lake near which the Commissioner lives.