CEO 97-16 -- July 17, 1997

 

BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

 

VOTING CONFLICT OF INTEREST

 

CITY COMMISSION MEMBER OWNING PROPERTY WHERE

BILLBOARDS ARE LOCATED VOTING TO ALTER, AMEND,

OR NEGATE BILLBOARD ORDINANCE

 

To:       Joseph P. Mawhinney,  City Attorney (Lakeland)

 

SUMMARY:

 

A City Commission member who has divested himself of all ownership in previously owned billboards, but retained an ownership interest in the land on which the billboards are located, is prohibited by Section 112.3143(3)(a), Florida Statutes, from voting to alter, negate, or amend the City's billboard ordinance. His vote in favor of amending, altering, or negating the ordinance would inure to his special private gain by permitting the properties' current lessee to continue to lease the properties and/or by removing his potential liability for code violation sanctions for the billboards' remaining on his properties after the amortization period imposed by the ordinance has expired.

 

Once the billboard structures are removed, no voting conflict of interest exists if the City Commissioner votes to amend, alter, or negate the ordinance, because any gain to him as a result of his vote would not be "special" due to the size of the class of people potentially affected in the same way by a change in the ordinance.

 

QUESTION I:

 

Is a City Commission member prohibited by Section 112.3143(3)(a), Florida Statutes, from voting to amend the City's current billboard ordinance, where he has divested himself of ownership of the billboards but retained an ownership interest in the property on which the billboards are located?

 

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

 

In your letter, you advise that you are requesting an opinion on behalf of one of your City Commissioners who was the subject of one of our previously issued opinions, CEO 90-25.  In that opinion, we found that he was prohibited by Section 112.3143, Florida Statutes, from voting on a proposed ordinance prohibiting billboards, where he owned several billboards within the City.  Under the circumstances presented, we opined that where the size of the class of persons or businesses owning billboards in the City was relatively small, the City Commission's consideration of the ordinance would inure to the Commissioner's special private gain.  We opined further that the City Commissioner was required to disclose the nature of his interest in the measure, abstain from voting, and file a voting conflict memorandum.

You advise that, after we issued the opinion, the City Commission considered proposed revisions to its sign regulations.  The proposed revisions were presented in two ordinances, you write, in order that the City Commissioner could vote on sign age issues unrelated to billboards and abstain from voting on those issues affecting billboards. One of the ordinances, Ordinance No. 3189, dealt solely with the billboard component of the City's sign regulations, and the other dealt with all other aspects of sign age unrelated to billboards.

Ultimately, the City Commission adopted Ordinance No. 3189 on April 2, 1990 with the City Commissioner abstaining from voting, you write.  With the exception of those billboards located along Interstate 4, the ordinance requires the removal of all billboards located within the City within seven (7) years from its adoption, the "amortization" period, or April 2, 1997.  The ordinance also provides that failure to remove the affected billboards within the amortization period subjects the billboard owner and the owner of the underlying property to code enforcement action.  Such action could result in a daily fine and a lien on all property owned by the offender, as well as second degree misdemeanor sanctions.

You advise that on or about April 2, 1997, when the amortization period expired, an outdoor advertising company, owner of the majority of the billboards affected by the ordinance, filed suit in federal court challenging the validity of the ordinance and alleging a taking of its property without compensation. The outdoor advertising company also filed a motion for temporary injunction to prevent any enforcement activity by the City.  Its motion has not been ruled on, you advise.

You advise that since the City Commission's adoption of Ordinance No. 3189, the subject City Commissioner has divested himself of ownership of his billboards, although he has retained ownership of the underlying property on which the billboards are located.  You further advise that recently the subject City Commissioner also declared the lease of the underlying real property to be terminated and invalid in accordance with a provision of the lease agreement that provides for termination of the lease in the event of governmental action which prohibits use of the billboard structures.  According to the City Commissioner's lawyer's letter to the lessee, the lessee had two weeks from the date of the letter (May 22, 1997) to remove the billboard structures from the City Commissioner's properties.  However, the lease's termination provision also provides that termination of the lease does not affect the lessee's obligations under the separate promissory note relative to her purchase of the billboard structures.

Having taken the above action, the City Commissioner asks whether he still has a conflict of interest that would prohibit his voting on any City Commission action which would alter, negate, or amend the City's current sign ordinance, as it relates to billboards.  If, under these circumstances, we find that he does have a conflict, he also questions whether that conflict would be resolved once the billboards on his property are removed, assuming there is no threat of or pending litigation incidental to the lease agreement.

Relevant to your inquiry is the following provision of the Code of Ethics:

 

VOTING CONFLICTS.--No county, municipal, or other local public officer shall vote in an official capacity upon any measure which inures to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom the officer is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(3); or which he or she knows would inure to the special private gain or loss 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 the officer's interest in the matter from which he or she is abstaining  from voting and, within 15 days after the vote occurs, disclose the nature of his or her 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.]

 

Section 112.3143(3)(a) prohibits the City Commissioner from voting on a matter which would inure to his special private gain or loss, to the special private gain or loss of a principal by whom he is retained, or to the special gain or loss of his relative or business associate.  It also contains an affirmative duty of disclosure so that interested parties and the public will understand why he is abstaining from voting.

Assuming that the action to alter, negate, or amend the current sign ordinance, as it relates to billboards, were to come before the City Commission during the period of time between the City Commissioner's declaring the lease terminated and the billboard structures' removal by the lessee, we are of the opinion that a prohibited voting conflict of interest still would exist.  Under these circumstances, we find that the City Commissioner's vote to alter, negate, or amend the current sign ordinance would inure to his special private gain or loss. Clearly, with the lessee's billboard structures still in place and the lessee having shown no unwillingness to lease the property under the existing lease, which would have had an additional three years to run if it had not been for the City Commissioner's declaration that the lease was terminated as a result of the requirements of Ordinance No. 3189, the City Commissioner's vote to alter, negate, or amend Ordinance No. 3189 would inure to his special private gain or benefit.  Altering, negating, or amending the ordinance would permit the lessee to forgo the expense of removing the billboard structures and to continue leasing the property. Furthermore, while the billboard structures remain on his property after the amortization period, both the City Commissioner and the owner of the billboards are subject to second degree misdemeanor sanctions.

Accordingly, we find that if the action to alter, negate, or amend the City's current sign ordinance were to come before the City Commission during the period of time between the City Commissioner's declaring the lease terminated and the billboard structures' removal by the lessee, a prohibited voting conflict of interest would exist for the City Commissioner.

 

QUESTION II:

 

Is a City Commission member prohibited from voting to amend the City's current billboard ordinance where he has divested himself of ownership of all previously owned billboards, and all of the billboard structures have been removed from the properties in which the member owns an interest?

 

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

 

Once the billboard structures are removed, we are of the opinion that no voting conflict of interest exists.  Under these circumstances, we find that the City Commissioner would be in a position no different from any other landowner in the City. Consequently, because the class of people affected by a change in the ordinance, that is, all of the landowners potentially affected by the amended ordinance, is large, we are of the opinion that any gain to the City Commissioner as a result of his vote would not be "special."

We also are of the opinion that any gain or loss to the City Commissioner as a result of his vote would not be special, notwithstanding the fact that he still may be receiving payments on a promissory note given to him upon his sale of his billboards to the lessee.  Analogously, in CEO 85-46 we concluded that a city commissioner was not prohibited by Section 112.3143, Florida Statutes, from voting on a petition for annexation of property where the development company which employed the commissioner had sold the property but retained a mortgage on the property and also owned adjoining property.  We determined that any gain or loss derived by the commissioner's employer, the development company, from the annexation would be too remote and speculative to inure to the special gain of the employer.  Therefore, because payment to the Commissioner on the promissory note would not be affected by whether or not the property on which the billboards previously were located is leased, it is our opinion that any gain or loss resulting from his voting on amending, altering, or negating the current ordinance would be too remote and speculative to allow us to conclude that such a matter would inure to his "special" private gain or loss.^[1]

Accordingly, we find that once the structures are removed, no voting conflict of interest would exist if the City Commissioner were to vote to alter, negate, or amend the billboard ordinance.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 17, 1997 and RENDERED this 22nd day of July, 1997.

 

 

 

__________________________

Kathy Chinoy

Chair