CEO 92-29 -- June 5, 1991

VOTING CONFLICT

COUNTY COMMISSIONER VOTING ON REZONING REQUEST OF

PROPERTY OWNER WHO OWNS PROPERTY FOR WHICH THE

COMMISSIONER, AS BROKER AND ON BEHALF OF ANOTHER,

NEGOTIATED A LEASE IN WHICH THE OWNER AGREED TO PAY

THE BROKERAGE COMMISSION

To: Brenda L. Valla, Assistant County Attorney, Sarasota County (Sarasota)

SUMMARY:

A county commissioner who is a registered real estate broker is not prohibited from voting on a zoning change for property owned by an individual who also owns another property for which the county commissioner negotiated a commercial lease on behalf of an oil company, as a broker for the company, prior to taking office. Here, both properties are in the same sector plan, the owner has agreed in the lease agreement to pay the commissioner's brokerage commission, and the lease is not contingent upon either a change in land use of the property under contract or rezoning of the property. Since, the commissioner's principal is the lessee/oil company, it does not appear that the Commissioner's vote would inure to either his or the oil company's special private gain.

QUESTION:

Is a County Commissioner who also is a registered real estate broker prohibited by Section 112.3143(3), Florida Statutes, from voting on a change in zoning on a piece of property requested by an owner who also owns another piece of property, which is zoned for its intended use and for which the County Commissioner, as broker and prior to taking office, negotiated a commercial lease on behalf of an oil company, where both properties are in the same sector plan, the owner agreed in the lease agreement to pay the County Commissioner's brokerage commission, and the lease is not contingent upon a change in land use or rezoning of the property?

Your question is answered in the negative.

In your letter and memorandum, you advise that Wayne Derr, a member of the Sarasota County Commission, is a registered realestate broker. You advise that prior to his election to the County Commission, he negotiated a commercial lease on property on behalf of an oil company/lessee under the terms of which the owner/lessor agreed to pay the brokerage commission. Although all negotiations respecting the lease have been completed, you advise that the closing will take place on an unspecified date at some time in the future and that the closing date is contingent upon the lessee obtaining a building permit. At the time of the closing, you advise, the closing commission will be paid to the County Commissioner and his real estate firm. You also advise that the County Commission does not vote on or approve the issuance of building permits.

You advise that under Sarasota County's Comprehensive Land Use Plan, property is sometimes divided into planning districts called "sector plans." You advise that the owner/lessor referred to above owns another parcel of land within the same sector plan boundary as the parcel presently under contract to the oil company. The property under contract, you advise, previously was zoned to a district which currently permits the intended use; however, the owner/lessor wishes to rezone the remaining property to a different use (hospital). You advise that amending the sector plan, as the owner/lessor desires, does not contemplate a change in land use on the parcel under contract; nor is the lease contingent upon the rezoning of the remainder of the parcel to hospital use. However, the County Commissioner is concerned about whether a conflict exists which would prevent him from voting on the petition of the owner/lessor to amend the sector plan to reflect a change in the zoning of the hospital site.

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 inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. 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. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one-acre, one-vote basis is not prohibited from voting. [Section 112.3143(3), Florida Statutes.]

This provision prohibits a local public official from voting on a matter which would inure to his special private gain or to the special gain of a principal by whom he is retained.

Whether the measure inures to the County Commissioner's special private gain or to the special private gain of the Commissioner's principal is a question of whether he or his principal would stand to gain or lose as a direct result of the outcome of the County Commission's decision. See CEO 91-48. Because you advise that the County Commissioner's principal was the lessee/oil company, it does not appear that the vote would inure to his special private gain or to the special gain of the oil company/lessee, his principal.

Accordingly, we find that under the circumstances, the County Commissioner does not have a conflict that would prohibit him from voting on the zoning matter. You should be advised, however, that Section 286.012, Florida Statutes, authorizes a public officer to abstain from voting where there is or appears to be a conflict of interest under one of the provisions of the Code of Ethics.