A county commissioner would not be presented with a voting conflict under Section 112.3143, Florida Statutes, regarding a proposed new road and a developer's plan to develop a large tract of land he owns adjacent to the road, where she and family members own property in the same general vicinity. None of the property owned by the commissioner and her family members is adjacent to the developer's property or the proposed roadway. Any possibility of gain from the measures would be remote and speculative, and any actual gain would not be "special" within the meaning of the voting conflicts law.
Is a voting conflict of interest created where a county commissioner votes on matters involving a proposed road and a large commercial development where the commissioner and relatives own property in the same general vicinity of the proposed road and development?
Under the circumstances presented, your question is answered in the negative.
Through your letter of inquiry, we are advised that you are a county commissioner and that you and family members have ownership interests in several parcels of land in southwest Gainesville. You write that a local developer owns a large parcel of land northeast of the I-75 interchange with SR 24, and that his parcel is adjacent to an existing road as well as a proposed county road—SW 24th Avenue. The developer has advocated that this new road be built as a four-lane divided road and has offered to provide substantial funding for the project. He asserts that the two-lane road proposed by the county in its comprehensive plan would not be adequate to meet transportation needs for the intense commercial development the area is facing. He also contends that the development of his 139-acre parcel is dependent on its having frontage on a four-lane road, as opposed to the two-lane road presently called for.
You and your husband own a minority interest in a five-acre parcel that is part of a 52-acre tract located approximately one mile from the proposed road and the developer's parcel. This tract, which fronts SR 24 and is southwest of the SR 24/I-75 interchange, is subject to an option contract that would allow a retail corporation to buy the land and build a 'supercenter.' Your husband is a real estate broker and could also earn commissions if the retail corporation ultimately buys the tract. In addition, you and your husband, and you and your children, own two small parcels containing rental apartments that are northeast of the developer's tract and near the intersection of SW 34th Street and SW 20th Avenue. None of these parcels front or are adjacent to the proposed road or the 139-acre parcel owned by the developer. Thus, you ask whether your interest in property in the general vicinity of the developer's large parcel creates a conflict of interest when voting on matters involving the proposed new road and the developer's plans for his property.
Section 112.3143(3)(a), Florida Statutes, provides:
No 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.
The voting conflicts law prohibits a local officer from voting on matters that inure to her special private gain or loss or to the special private gain or loss of relatives or business associates.
In numerous opinions, we have opined that where the impact of a vote on the public officer's interests is uncertain at the time of the vote, the impact of the vote would be "remote and speculative" and, thus, not a voting conflict. See CEO 05-2, CEO 94-13, CEO 93-21, and CEO 91-16. We also have analyzed whether a particular vote would inure to the "special gain or loss" of a public officer by examining the "size of the class" of persons who stand to benefit or lose from the measure to be voted upon. See CEO 96-12, CEO 90-56, CEO 87-18, and CEO 77-129. When a measure affects a class of sufficient size, the gain is of a "general" nature and thus is not the "special" gain addressed by the voting conflicts law.
Under either test, we do not believe that votes to enter into a contract with the developer to build the road as a four-lane road as opposed to a two-lane road, votes on the comprehensive plan to amend the description of the road, or votes on comprehensive plan and DRI applications to be submitted by the developer, would inure to the special private gain or loss of you, your relatives, or your business associates. The properties you and your relatives own are not immediately adjacent to the developer's tract or the proposed road. Whether the road is built as a two-lane road in accordance with the comprehensive plan or as the four-lane road the developer advocates, it is not going to have a direct, discernable interest on your properties or their value. The possibility that a large-scale retailer may choose to build a 'supercenter' on the developer's 139-acre parcel instead of the 54-acre tract which is presently under option is simply too remote and speculative to constitute a voting conflict under our precedent. See CEO 80-3. Moreover, there is already intense development existing and underway in the general vicinity of the developer's 139-acre parcel and, whether or not he gets the specific road and development approvals he seeks from the county, there is no indication that any of this will inure to your special private gain or loss or that of your relatives or business associates for purposes of Section 112.3143(3)(a), Florida Statutes.
Accordingly, we find that you would not be prohibited from voting on an agreement with the developer to build the road as a four-lane road, on amending the comprehensive plan to change the road description to that of a four-lane road, or on comprehensive plan and DRI applications submitted by the developer merely because you and family members own property in the same general vicinity.
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 10, 2005 and RENDERED this 15th day of March, 2005.
Joel Gustafson, Chairman