CEO 84-80 -- August 9, 1984

VOTING CONFLICT OF INTEREST

CITY-COUNTY PLANNING COMMISSION MEMBER VOTING ON MATTER SPONSORED BY HIS NEIGHBORHOOD ASSOCIATION

To: Mr. Jeff Schembera, Member, Tallahassee-Leon County Planning Commission

SUMMARY:

No voting conflict of interest would be created under Section 112.3143, Florida Statutes, were a member of a city-county planning commission to vote on a down-zoning proposal encompassing the neighborhood in which he resides, when the proposal was prepared by a neighborhood association of which he is a member. The down-zoning proposal would not inure to his special private gain, or to the special gain of any principal by whom he is retained. CEO 79-66 and CEO 77-129 are referenced.

QUESTION:

Would a voting conflict of interest be created were you, a member of a city-county planning commission, to vote on a down-zoning proposal encompassing the neighborhood in which you reside, where the proposal was prepared by a neighborhood association of which you are a member?

Your question is answered in the negative under the circumstances presented.

In your letter of inquiry you advise that recently you were appointed as a member of the Tallahassee-Leon County Planning Commission, which acts in an advisory capacity to the City Commission and County Commission as a review authority for all rezoning applications, among other responsibilities. You also advise that the Planning Commission is considering a down-zoning proposal prepared by the neighborhood association of which you are a member. The proposal would down-zone over 700 lots in the neighborhood owned by approximately 560 persons. If approved, the uses and density of use for this property would be reduced from commercial medical, office/residential, and medium density residential classifications to a lower density, residential classification.

In addition, you advise that you served as president of the neighborhood association when the down-zone action was initiated. However, you resigned from that position and from the board of directors of the association on the day you became a member of the Planning Commission. Finally, you advise that your residence is located on 2-1/2 lots within the neighborhood for which the down- zoning is proposed.

The Code of Ethics for Public Officers and Employees provides in relevant part:

Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, 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. [Section 112.3143, Florida Statutes (1983).]

This provision requires a planning commission member to file a memorandum disclosing a conflict of interest in the event that he votes on a measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained.

We are of the opinion that you have a personal or private interest in the down-zoning measure, as it would affect your property and adjoining property and as it is sponsored by the neighborhood association which you served as president and of which you remain a member. However, we do not find that the measure would inure to the special gain of a principal by whom you are retained or would inure to your special private gain.

In a previous opinion, CEO 79-66, we advised that no voting conflict of interest was created where a board of adjustment member voted on a matter opposed by the homeowners' association of which he was an officer. As you are not retained by the homeowners' association here, but merely are a member of that association, and as the association owns no property within the affected area, we find that the rationale of this opinion applies equally to your relationship with the homeowners' association.

The question of whether you are presented with a voting conflict of interest because of your ownership of property within the affected area is one which requires more detailed analysis. The issue is whether the down-zoning measure would result in a "special private gain" to you.

In a telephone conversation with our staff, you advised that your property is located in the center of the neighborhood, rather than on a fringe area. The property presently is zoned RM1, a medium density zoning which would be reduced under the down-zoning proposal. Although you own approximately 2 1/2 lots for your residence, there is no land available on this parcel which could be developed for other uses.

Under these circumstances, we conclude that the down-zoning proposal would not inure to your special private gain. Although the density of use for your property would be reduced, it is possible also that property located in the center of the neighborhood would increase in value as a single-family residence, since down-zoning of the area would tend to guarantee the residential character of the neighborhood. Where gain or loss is so speculative, we cannot conclude that the down-zoning proposal would inure to your gain. See CEO 79-66.

Secondly, unlike situations where rezoning is proposed for only a few parcels of property, here the down-zoning would affect approximately 560 property owners. Therefore, the size of the class of persons affected by this measure is large enough that we can conclude that any gain you might receive would not constitute "special" private gain. See CEO 77-129.

Accordingly, we find that no voting conflict of interest requiring the filing of a memorandum of voting conflict would be created were you to vote on the proposed down-zoning measure. However, because your property is located within the area affected, you would be permitted to abstain from voting on the proposal under Section 286.012, Florida Statutes, which provides for discretionary abstentions.