CEO 07-22 -- September 12, 2007
COUNTY COMMISSIONER VOTING ON MATTER AFFECTING DEVELOPERS INCLUDING HOMEBUILDER SPOUSE
A county commissioner is not presented with a voting conflict under Section 112.3143(3)(a), Florida Statutes regarding a measure concerning franchise debris haulers which may affect homebuilders, including the commissioner's spouse. Under these circumstances, the size of the class of homebuilders is sufficiently large that any gain or loss to the commissioner's spouse is not "special." CEO 01-8, CEO 00-13, CEO 96-12, and CEO 93-12 are referenced.
Would a county commissioner be presented with a voting conflict under Section 112.3143(3)(a), Florida Statutes, regarding the grant of exclusive franchise hauling rights to certain debris haulers when his spouse, who is a homebuilder, currently uses franchise and non-franchise debris haulers?
Under the facts presented, your question is answered in the negative.
You advise that you are seeking this opinion on behalf of Commissioner Al Higginbotham, a Hillsborough County Commissioner. Through your request for advisory opinion and subsequent communications with your office, you advise the following:
An issue recently has arisen where, by ordinance and contract, Hillsborough County has granted a limited group of franchise haulers (currently three) the exclusive right to collect construction and demolition debris from residential construction sites within the County. The haulers are granted this right in exchange for their collecting residential household waste from County residents at favorable rates.
Subsequently, a non-franchise hauler sued the county and obtained a declaratory judgment from the court. The court's order states that the ordinance did not clearly prohibit non-franchise hauler collections from residential properties. The case is currently on appeal. In the meantime, the County is seeking to either negotiate a settlement or prepare an amendment to the ordinance. Either course will require a vote of the County Commission.
While considering ways to resolve the situation, the Commissioner became concerned about whether he should participate in this matter and requested you to inquire whether he is presented with a voting conflict of interest. The Commissioner's wife is a homebuilder who does business in Hillsborough County. Her company normally builds one house at a time. In the course of her business, she has hired both franchise and non-franchise haulers to remove debris from her projects. The selection of a hauler for particular jobs depends on factors such as the cost per job and how quickly the debris could be removed or the need for special equipment. Were action taken to prohibit non-franchise haulers removing debris from residential construction projects, the Commissioner's wife would be required to hire franchise haulers to remove debris.
In light of the foregoing, you have asked whether a conflict of interest exists that would prohibit the Commissioner's voting upon the above-referenced issue. Your inquiry implicates Section 112.3143(3)(a), Florida Statutes, which 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 law requires the Commissioner's declaration of conflict, abstention from voting, and timely filing of CE Form 8B (memorandum of voting conflict) regarding measures of the County Commission which would inure to his special private gain or loss. This provision also prohibits the County Commissioner from voting in an official capacity upon any measure which would inure to the special private gain or loss of his relative. "Relative" is defined in Section 112.3143(1)(b) as:
'Relative' means any father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, or daughter-in-law.
Previously, we have opined that where the class of people that would be affected by the vote is large enough, there is no special private gain. See CEO 00-13, CEO 96-12, and CEO 93-12.1 For a more thorough discussion of the size of the class analysis, see CEO 01-8.
A check of licensed contractors who do residential work in Hillsborough County on the State website indicates that there are 6,406 contractors who have been authorized to build residential projects in Hillsborough County. Some of those listed are either in the process of applying for licensure or have allowed their licensure to lapse. However, it appears that there are at least 3,000 contractors who have active licenses allowing them to build residential projects in Hillsborough County.
In light of the fact that the Commissioner's wife builds one home at a time, and that she is only one of between 3,000 and 6,406 contractors who would be affected by the County Commission taking action, it can not be said that any measure affecting the ability of a non-franchise hauler to remove construction debris would inure to her special private gain or loss. Simply, she is one of a large class of individuals and any gain or loss would not be special or unique to her. There is also no indication that she would be affected any differently than the other contractors to whom the ordinance would apply.
Accordingly, we find that, under these circumstances, the Code of Ethics for Public Officers and Employees does not prohibit the subject County Commissioner from voting on the franchise debris hauler matters pending before the County Commission.
ORDEREDby the State of Florida Commission on Ethics meeting in public session on September 7, 2007 and RENDERED this 12th day of September, 2007.
Albert P. Massey, III, Chairman
All statutes and opinions cited herein are available on the Commission's website located at www.ethics.state.fl.us.