CEO 94-13 -- March 10, 1994

VOTING CONFLICT OF INTEREST

CITY COUNCILMAN VOTING ON REZONING OF PROPERTY NEAR

BUSINESS WITH WHICH HE IS CONNECTED, HIS RESIDENTIAL

PROPERTY, AND SCHOOL ATTENDED BY HIS CHILD

To: Harris K. Solomon, Assistant City Attorney, City of Plantation

SUMMARY:

Section 112.3143(3)(a), Florida Statutes, does not prohibit a city councilman from voting on a measure to rezone property to allow for a shopping center where the property is located near a business with which the councilman, his relative, or his business associate is involved, near the councilman's residential property, and near a school attended by the councilman's child. Any possibility of gain from the measure would be remote and speculative, and any actual gain would not be "special" within the meaning of the voting conflicts law. CEO's 78-20, 79-66, 86-44, and 90-71 are referenced.

QUESTION:

Would Section 112.3143(3)(a), Florida Statutes, prohibit a city councilman from voting on a measure to rezone property, where the property is near a business with which he is involved, his residential property, and a school attended by his child?

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

By your letter of inquiry, other correspondence, and materials submitted by you, we are advised that Ron Jacobs and Larry Freilich serve as members of the City Council of the City of Plantation. In addition, you advise that a request to rezone a tract of land to allow a shopping center is before the Council. The site is across a street from an existing shopping center in which a karate school (in which one Councilman is a twenty percent shareholder) rents space, you advise. Further, you advise that the other Councilman is employed by an insurance agency which also has offices in the existing shopping center; this Councilman's wife is the president and majority stockholder of the insurance agency. Each Councilman owns one single-family residential lot in a large neighborhood located near the site of the proposed rezoning, you advise. In addition, you advise that each Councilman has a child attending an elementary school located across the street from the site and that one of the Councilmen will have a second child attending the school next year. Each Councilman has had various "political" affiliations (including one Councilman's presidency of a homeowners' association) in opposition to the rezoning and has publicly made statements in opposition to the rezoning, you advise. Further, you advise that the karate school donated space for its part-owner's campaign headquarters during his campaign for a seat on the Council, and that this Councilman accepted $1,500 in campaign contributions from the existing shopping center or from "people related [to the existing shopping center]."

You advise that the Councilmen desire to know whether their situations present a voting conflict on the rezoning measure.

The only provision of the Code of Ethics for Public Officers and Employees relevant to this situation is Section 112.3143(3)(a), Florida Statutes, which provides:

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.

This statute would prohibit a Councilman from voting on the zoning change if the change would inure to his special private gain or to the special private gain of any of the other enumerated persons or entities.

Under the facts presented, we must determine whether the rezoning measure would inure to the special private gain of a Councilman individually, a Councilman's wife ("relative"), a Councilman's employer ("principal by whom he is retained"), coowners of a Councilman's karate school ("business associates"), and the Councilmen's children ("relatives"). The other relationships apparent from your inquiry do not need to be examined specifically, because either they are not addressed by the voting conflicts law or our analysis below encompasses them. For example, an elected official is not prohibited from voting on an issue simply because a campaign contributor is affected by the issue. See CEO 78-20.

We adhere to our precedent and find that no voting conflict arises from the rezoning measure's effect on the businesses with which the Councilmen are connected and which are located in the existing shopping center. See, for example, CEO 86-44 in which we opined that a member of the Plantation City Council would not be prohibited from voting on a site plan for a shopping center to be located adjacent to his florist store because any impact the proposed mall would have on his florist business in the future would be too remote and speculative to constitute "special gain."

Further, we likewise adhere to our precedent and find no voting conflict arising from the rezoning measure's effect on the Council members' individual residential lots. The number of lots affected (judging from a map you submitted, this appears to be at least hundreds of lots) is sufficiently large such that any gain or loss to the value of the Commissioners' lots would not be "special" within the meaning of the voting conflicts law. See, for example, CEO 90-71. Further any effect on the residential lots would appear to be remote and speculative. See CEO 79-66.

Additionally, we find that the Councilmen would not be prohibited from voting on the rezoning due to its possible effects on their children who attend school across the street from the site, including possible danger from an increase in vehicular traffic caused by a new shopping center. As many other school children would be similarly affected, any effect upon the Councilmen's children would not be "special." Further, given that traffic already exists contiguous to the school and given the other, more direct events which cause automobile/pedestrian accidents, any injury or any increased probability of injury to the Councilmen's children due to the zoning change and placement of a new shopping center would be remote and speculative.

Accordingly, we find that the Councilmen are not prohibited from voting on the zoning change by Section 112.3143(3)(a), Florida Statutes.