CEO 91-48 -- September 13, 1991
TOWN COUNCIL MEMBER VOTING ON VARIANCES REQUESTED BY
DEVELOPMENT CORPORATION OF DEVELOPER TO WHOM MEMBER
WAS INDEBTED AS COSIGNATORY ON NOTE
To: Frank J. Cannata, former Town Council Member, Davie
Section 112.3143, Florida Statutes, prohibits a local public official from voting on a matter which would inure to his special private gain or to the gain of a principal by whom he is retained. The applicability of this provision turns on the nature of the measure's relationship to the public official's interests rather than on the identity of the party before the public official's agency. Accordingly, a town council member was not prohibited from voting on variances requested by the development corporation of a developer to whom the council member was personally indebted as a cosignatory on a note secured by the council member's property, where the property which was the subject of the variance requests had no relationship to the business venture in which the member had an interest and where neither the member nor any principal by whom he was retained stood to gain or lose as a direct result of the outcome of the council's vote.
Were you, a member of a Town Council who was personally indebted to a developer as a cosignatory on a note secured by your property, prohibited from voting on variances requested by the developer's development corporation, where the property that was the subject of the variance requests had no relationship to any business interest that you held and where you did not stand togain or lose as a direct result of the outcome of the Council's vote?
Your question is answered in the negative.
Through your letter of inquiry, your telephone conversation with staff, and your written response to staff's questions, you advise that you were a Davie Town Council member, having recently lost reelection to the Council. The Council is a five (5) member elected board with four of the members elected from districts and one (1) member elected at large. You were the at large member. One of the Council members serves as Mayor. You also advise that the Council hires the City Manager, who manages the town, while the Council acts as its legislative body making decisions in such areas as land use zoning and density.
You advise that while serving as a Town Council member, you introduced a friend to a developer who had a business proposition for investment in a franchise corporation. The developer agreed to invest his money in order to establish a retail store; however, he also had a six (6) month option to ask for the return of his money with interest. Because you were assured that the investment was a "great opportunity," you agreed to cosign the note to the developer/investor and to mortgage your real property as security for the note. The note was made payable to the developer personally and signed by you, your wife, and your friend on February 15, 1990.
You advise that you cosigned the note and signed the mortgage in order to help a friend. You write that he had promised that if this venture was successful, you would be offered an interest in another franchise corporation different from the one that the developer was investing in. You advise, however, that the developer exercised his option in July 1990 and that your friend failed to make payment on the note. You advise that, as a result, in January 1991 you lost your property to the developer, to whom you had to convey the property in consideration of his assignment of the note obligation to you.
Further, you advise that the developer's corporation has been before the Town Council approximately five (5) times within the last three (3) years. Neither he nor his corporation has entered into any contracts with the Town. You also advise that the developer's corporation usually appears before the Council through its attorney. The first appearance was to obtain a permit to remove fill dirt. Another was to seek a variance for an increase in density on the same piece of property. Finally, his corporation appeared on February 21, 1990, seeking three (3) variances which included lowering the density, making a larger lot size, and modifying the side set back. The three variances passed on votes of 5-0, 5-0, and 4-1, respectively. Although the property had no connection to you personally or to the business venture for which you cosigned the note, you are concerned about whether a voting conflict existed with respect to the variances and whether you should have abstained from voting.
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 official from voting on a matter which would inure to his special private gain or to the special gain of a principal by whom he is retained. As we noted in CEO 76-209, the applicability of this provision turns on the nature of the measure being considered by the Town Council and that measure's relationship to your interests rather than on the identity of the party before the Council and his or its relationship to you. Whether the measure inures to your special private gain or the special private gain of your principal is a question of whether the interest you hold is such that you, or your principal, would stand to gain or lose as a direct result of the outcome of the council's decision. Clearly, your indebtedness to the developer did not make him or his corporation a principal by whom you were retained.
Accordingly, we find that a voting conflict of interest was not created by your voting on the variance requests of the development corporation of a developer to whom you were personally indebted as a cosignatory on a note secured by your property, where the property that was the subject of the variance requests had no relationship to the business ventures in which you held an interest and where neither you nor any principal of yours stood to gain or lose as a direct result of the outcome of the Council's decision.