CEO 85-17 -- March 6, 1985

VOTING CONFLICT OF INTEREST

CITY MAYOR AND COMMISSIONER EMPLOYED BY DEVELOPER PETITIONING FOR ANNEXATION OF PROPERTY

To: (Name withheld at the person's request.)

SUMMARY:

The city mayor and a city commissioner are prohibited by Section 112.3143, Florida Statutes (Supp. 1984), from voting on a petition for annexation of property owned by the developer who employs them. Here, it appears that the annexation petition would inure to the special gain of the developer.

QUESTION:

Are a city mayor and a city commissioner prohibited by Section 112.3143, Florida Statutes, from voting on a petition for annexation of property owned by the developer who employs them?

Your question is answered in the affirmative.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that Mayor .... and Commissioner .... of the City of Flagler Beach are employed by the major land developer in Flagler County. The developer owns over 70,000 acres of land, most of which lies in the unincorporated area of the County. The developer is actively engaged in land development in the unincorporated area, but not within the City.

You also have advised that pending before the City is a petition for the annexation of approximately 11 acres, five of which are owned by the developer which employs the Mayor and the Commissioner. The petition was filed by a group intending to develop the 11 acres, apparently to enable the group to have access to City water for its development. The developer which employs the Mayor and the Commissioner joined in the petition in order to have its five-acre parcel annexed. The developer has granted to the group an option to purchase which contains no contingencies regarding annexation.

Section 112.3143(3), Florida Statutes (Supp. 1984), prohibits a municipal officer from knowingly voting "upon any measure which inures to the special gain of any principal . . . by whom he is retained." In previous opinions we have advised that a public official's employer is a "principal by whom he is retained." See CEO 78-27, CEO 79-76, CEO 81-52 and CEO 82-53. The remaining question is whether the petition for annexation would inure to the special private gain of the developer which employs the Mayor and the Commissioner.

We are of the opinion that the developer stands to gain or lose as a result of the outcome of the annexation petition. We presume that the developer would not have joined in the petition unless it felt that action would be to its benefit, and it appears possible that the option to purchase the developer's property might not be exercised if the property is not annexed.

We further are of the opinion that the gain to be derived would be "special" within the contemplation of the voting conflicts law. We previously have advised in CEO 77-129 that whether a measure inures to the "special" gain of an officer or his principal will turn in part on the size of the class of persons who stand to benefit from the measure. Here, the annexation measure would directly affect only the developer and the group seeking to develop the property. Compare CEO 84-80, involving a rezoning proposal affecting 560 property owners, and CEO 85-5, involving a rezoning measure affecting approximately 90% of a town's population.

Accordingly, we find that Section 112.3143(3), Florida Statutes (Supp. 1984), prohibits the subject Mayor and Commissioner from voting on the petition for annexation.