CEO 89-34 -- September 14, 1989
To: (Name withheld at the person’s request.)
SUMMARY:
A city council member is prohibited by Section 112.3143, Florida Statutes, from voting on the rezoning of property which adjoins property in which she owns an interest. Where the council member's property would increase in value as a result of approval of the rezoning, the fact that the precise amount of such increase is uncertain does not mean that the measure would not result in "special private gain" to the council member, requiring the council member to abstain from voting. Also, the class of persons affected is sufficiently small to result in "special" gain.
QUESTION:
Are you, a city council member, prohibited by Section 112.3143, Florida Statutes, from voting on the rezoning of property which adjoins property in which you own an interest?
Your question is answered in the affirmative.
In your letter of inquiry and communications with our staff, you advise that you are a member of the Venice City Council. You further advise that the owner of a five acre parcel of land in the City intends to petition the Venice City Council for rezoning to a commercial classification. You own with your former husband five acres of land adjacent to the parcel which may be rezoned. You advise that your property currently is vacant and that there are four other vacant parcels which adjoin the property subject to the rezoning. You feel that approval of the rezoning would tend to increase the value of your property, but the degree to which it would increase is uncertain. You question whether you may vote on the rezoning of this property.
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.]
This provision prohibits a local public officer from voting on any measure which inures to the special private gain of the officer or of any principal by whom she is retained.
In CEO 87-88, we advised that a city board of adjustment member was prohibited from voting on the petition of a church to establish a school on church property located adjacent to the board member's residential property. There it was clear that the measure would have an effect on the value of the member's property. We have previously advised that a voting conflict of interest is created where the public official or the principal by whom he is retained would stand to gain or lose as a result of the outcome of the decision. See CEO 84-116 and 85-37.
We also have advised that no voting conflict was created where it was not clear that a measure would benefit the individual, or where the class of persons benefited was so large that the benefit could not be said to be "special." See CEO 87-95, CEO 85-57, and CEO 87-18. However, in this case, you advise that the rezoning will tend to increase the value of your property. Both the parcel subject to the rezoning and your property currently are vacant and presumably available for future development. The fact that the amount of such increase cannot be readily calculated does not make that benefit speculative. Also, you and the owners of four other parcels are potential beneficiaries of this rezoning. The small size of this class would make this a "special" benefit within the meaning of this section.
Accordingly, we find that you are prohibited by Section 112.3143, Florida Statutes, from voting on the rezoning of property adjacent to property in which you have an interest.