CEO 05-2 -- February 1, 2005

VOTING CONFLICT OF INTEREST

VILLAGE WORKFORCE/AFFORDABLE HOUSING COMMITTEE MEMBER VOTING ON MOBILE HOME PARK MEASURES


To: Name withheld at the person's request.

SUMMARY:

A workforce/affordable housing committee member would not be presented with a voting conflict under Section 112.3143, Florida Statutes, regarding various mobile home park issues, where she operates a mobile home park. Any gain or loss resulting to the member or her relatives would be remote and speculative or would not be special. CEOs 85-90, 87-27, 93-7, and 93-21 are referenced.

QUESTION:


Would a village advisory committee member who operates a mobile home park be presented with a voting conflict regarding a measure to recommend that the village council change zoning requirements for the village's mobile home district, where the member's park is not located in the district?


This question is answered in the negative.


By your letter of inquiry, an accompanying document,[1] and a telephone conversation between you and our staff, we are advised that you are an attorney in a law firm which serves Islamorada, Village of Islands, Florida (Village) as its municipal attorney, and that you have been requested by ... (member), a member of the Village's Workforce/Affordable Housing Committee (Committee), to inquire in her behalf. Additionally, you advise that the member and her husband lease a motel/trailer park[2] from her father (who owns the property),[3] that the property has twenty-one lots (five for mobile homes and sixteen for recreational vehicles) and ten motel units, and that the property is not located within the Village's mobile home zoning district.[4] The Committee, you advise, consists of ten members appointed by the Village Council (Council) and advises the Council on how to improve the condition and volume of affordable housing within the Village in order to meet the housing demands of the Village's workforce. To date, you advise, the Committee has focused much of its discussion on mobile homes and recreational vehicles and is preparing to vote on several items in order to provide guidance to the Council.


Section 112.3143(3)(a),[5] Florida Statutes, (a portion of the voting conflicts law) provides:


VOTING CONFLICTS.óNo county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure 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 he or she 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(2); 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.

This statute, which includes in its application members of advisory bodies,[6] requires that a local public officer declare his or her interest in a measure, abstain from voting on the measure, and timely file a memorandum of voting conflict (CE Form 8B), regarding measures which would inure to his or her special private gain or loss.

We find that the member would not be presented with a voting conflict regarding a measure to change zoning requirements for the mobile home district. To begin with, because the member's business is not located within the district, there would be no direct effect on her business (property owned by her father) occasioned by the changes. Further, as you point out in your inquiry, although zoning changes within the district could affect the local market for mobile homes and thus could affect the member's business, we find that such an effect (such gain or loss) would be remote and speculative. See, for example, CEO 93-7, in which we found no voting conflict, reasoning that it was remote and speculative to assume that by raising the rent at a city-owned mobile home park a city commissioner would be able to charge higher rent at his park. See also CEO 93-21 in which we found no voting conflict, reasoning that any benefit would be remote and speculative in a situation regarding a developer's special exception request to change the designated uses of two lots located a block apart from lots owned by a city planning and zoning commissioner and her husband.


QUESTION 2:


Would the member be presented with a voting conflict regarding a measure recommending that the Council place a limitation on the expansion of affordable housing units, including mobile homes and recreational vehicles in the Village?


This question is answered in the negative.


Assuming arguendo that the effect of such a measure would not be remote and speculative as to the member, her husband, and her father, we nevertheless find that the measure would not present a voting conflict. Inasmuch as the measure would apply to the whole of the Village, the effect on the member and her relatives would not be "special," as required for applicability of the law. See CEO 85-90 (county commissioner voting on conservation ordinance affecting 195-acre property in which he owns an interest) in which we found no voting conflict, reasoning that all property in the county could become subject to the ordinance. See also CEO 87-27 in which we found that town council members would not be prohibited from voting to rezone all residential property in the town to commercial in order to sell the property, where the council members themselves were potential distributees of the sale.


QUESTION 3:


Would the member be presented with a voting conflict regarding a measure to recommend to the Council that the Village gain some control over the operations of all mobile home parks?


This question is answered in the negative.

Whether such control would result in gain or loss (as opposed to merely maintenance of the status quo) regarding park owners/operators would be remote and speculative and, assuming gain or loss resulted from the control, it would affect all parks and thus would not be "special."

QUESTION 4:


Would the member be presented with a voting conflict regarding a measure to recommend that the Council affect the zoning or use of a specific mobile home park, other than a property owned or run by the member, her husband, or her father?


This question is answered in the negative.


Under reasoning similar to that stated in our response to previous questions of this opinion, we find that any gain or loss to the member or her relatives occasioned by such a measure would be remote and speculative.


ORDERED by the State of Florida Commission on Ethics meeting in public session on January 27, 2005and RENDERED this1st day of February, 2005.




__________________________

Joel K. Gustafson, Chairman





[1] A copy of a resolution of the Village Council of Islamorada, Village of Islands, Florida creating a Workforce/Affordable Housing Citizens Advisory Committee.

[2] You advise that the member and her husband also own two other businesses (a fourteen-unit motel and a thirty-unit motel).

[3] You advise that the member runs the park, that the owner would have little input into the running of the park business unless there was a change in the use of the property, and that the contract between the member and the owner provides that the member and her husband pay a monthly fee to the owner and that all other monies from the operation of the park go to the member and her husband.

[4] By telephone, you communicated to our staff that there are a total of eleven mobile home parks, that there are a total of 434 mobile home lots (of which the member's business operates 5), and that there are a total of 49 units in a category referred to as "boats, vans, recreational vehicles, etc.," in the Village, according to records.

[5] As an appointed (rather than elected) officer, the member also is subject to Section 112.3143(4), Florida Statutes, which addresses "participation" and which supplies standards of conduct which can differ somewhat from those of Section 112.3143(3)(a). However, neither statute is applicable in situations in which the requisite special private gain or loss is not present. Section 112.3143(4) provides:

(4) No appointed public officer shall participate in any matter which would inure to the officerís special private gain or loss; which the officer knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained; 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, without first disclosing the nature of his or her interest in the matter.

(a) Such disclosure, indicating the nature of the conflict, shall be made in a written memorandum filed with the person responsible for recording the minutes of the meeting, prior to the meeting in which consideration of the matter will take place, and shall be incorporated into the minutes. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.

(b) In the event that disclosure has not been made prior to the meeting or that any conflict is unknown prior to the meeting, the disclosure shall be made orally at the meeting when it becomes known that a conflict exists. A written memorandum disclosing the nature of the conflict shall then be filed within 15 days after the oral disclosure with the person responsible for recording the minutes of the meeting and shall be incorporated into the minutes of the meeting at which the oral disclosure was made. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.

(c) For purposes of this subsection, the term 'participate' means any attempt to influence the decision by oral or written communication, whether made by the officer or at the officer's direction.

[6]Section 112.3143(1)(a), Florida Statutes, defines "public officer" to mean "any person elected or appointed to hold office in an agency, including any person serving on an advisory body."