CEO 90-25 -- March 8, 1990

VOTING CONFLICT OF INTEREST

CITY COMMISSION MEMBER OWNING BILLBOARDS

VOTING ON PROPOSED BILLBOARD ORDINANCE

To: Joseph Mawhinney, City Attorney, City of Lakeland

SUMMARY:

A city commission member is prohibited by Section 112.3143, Florida Statutes, from voting on a proposed ordinance prohibiting billboards, where the commission member owns several billboards within the city. Under the circumstances presented, the measure would inure to the commissioner's special private gain, and he would be required to disclose the nature of his interest, abstain from voting, and file a voting conflict memorandum.

QUESTION:

Is a city commission member prohibited by Section 112.3143, Florida Statutes, from voting on a proposed billboard ordinance where the commission member owns several billboards within the city?

Your question is answered in the affirmative.

In your letter of inquiry, you advise that . . . . is a City Commissioner in the City of Lakeland. You advise that the City is considering revising its sign ordinance regulating off-premises advertising (billboards), on premises advertising and identification signs, and temporary point of purchase (portable and trailer) signs. As part of this process, the City Commission enacted a moratorium on the issuance of permits for new billboards. During this moratorium, the Mayor has appointed three Commission members to serve on a committee to propose revisions to the existing ordinance. The initial proposal by the committee consists of a total ban on new billboards and elimination of existing billboards on a seven year schedule. The subject Commission member, who does not serve on the sign ordinance committee, owns five billboards, which constitute less than four percent of the approximately 138 billboards within the City. Including permits for new billboards issued immediately prior to the enactment of the moratorium, the Commission member's percentage of ownership of the outstanding permits is less than three percent. The large majority of existing billboards are owned by a national company and several local companies whose primary business is outdoor advertising. You inquire whether this Commission member may participate in deliberations and votes regarding revisions to the billboard ordinance.

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.]

Under this provision, a local official is prohibited from voting on any measure which would inure to his "special private gain." Whether a gain is "special" will depend in part on the size of the class to be affected by the vote. See CEO 87-24 and CEO 77-129. You note that the current proposal is for a ban on billboards which are owned by a small class of businesses in the community. However, you are uncertain at this time exactly what form the final proposal to the Commission will take.

Were the vote to concern a ban on billboards, as is currently proposed, we find that the subject Commissioner would be prohibited from voting on an ordinance revision due to his ownership of billboards within the City. The class of persons is small enough that the proposal would constitute special private gain to the Commissioner. Though his interest is a small portion of the total market, this is not determinative of the issue. "Conflict" is defined at Section 112.312(6), Florida Statutes, as a "situation in which regard for a private interest tends to lead to disregard of a public duty or interest." In this situation, the fact that other members of the affected class hold far larger interests does not change the fact that the measure will have a direct financial effect on the Commissioner as a member of a small group of billboard owners.

In your letter of inquiry you have cited CEO 86-59, but we do not find it analogous to this situation. In that opinion, no voting conflict was found where city council members voted on a sign ordinance and were involved in businesses which had some relationship to the sign industry. This was based on the council members being part of a large class of persons affected indirectly by the ordinance rather than being members of the smaller class of persons directly affected. There, the directly-affected class consisted of sign owners, lessors, and other users. The indirectly-affected class, in addition to being much larger, had a more speculative and remote interest from which we could not conclude that the measure would inure to their "special gain." However, in this case, the subject Commissioner is a member of the directly-affected class, the class size is small, and the effect of billboard restrictions on his financial interests is clear.

Under these circumstances, a voting conflict would be created, and Section 112.3143(3) would require the Commissioner to publicly state the nature of his interest prior to the vote, abstain from voting, and file a memorandum of voting conflict within 15 days after the vote occurs with the person responsible for recording the minutes of the meeting. Commission Form 8B has been provided for purposes of making the required disclosure.

However, were the proposal to the Commission to be more expansive, including various types of signs and other matters, or differ in its effect on billboards, it is possible that the class size would be larger or the effect may differ regarding the subject Commissioner. If this situation occurs, you may wish to provide us with more specific information and request additional guidance.

With regard to participation in deliberations on the issue of the sign ordinance, Section 112.3143(3) requires only abstention from voting as noted above. While appointed public officers are precluded from participating in any matter which inures to their special private gain before disclosing the nature of their interest under Section 112.3143(2)(b), Florida Statutes, elected local officials need only abstain from voting on such matters. However, we note the following provision of the Code of Ethics:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

We would caution the subject Commissioner to avoid even the appearance of using his official position to favor his private interests.

Accordingly, we find that Section 112.3143(3), Florida Statutes, prohibits the subject City Commissioner from voting on an ordinance restricting billboards where he owns billboards within the City.