CEO 86-59 -- July 24, 1986

VOTING CONFLICT OF INTEREST

CITY COUNCIL MEMBER OWNING COMMERCIAL ART SHOP, ADVERTISING BUSINESS, AND ELECTRICAL CONTRACTING COMPANY AND WHOSE RELATIVES OWN PORTABLE SIGN COMPANY VOTING ON PROPOSED SIGN ORDINANCE

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

SUMMARY:

A city council member is not prohibited by Section 112.3143, Florida Statutes, from voting on a proposed sign ordinance where the council member is the owner of a commercial art shop which produces signs, among other products. As the ordinance would only have an indirect effect on the council member's business and as under the facts presented there is no indication that the council member would be affected by the ordinance to a significantly greater or lesser degree than other affected businesses, the proposed ordinance would not inure to the "special gain" of the city council member. Similarly, a city council member who owns an advertising business which recommends and purchases billboard space for its clients, among other advertising, and a city council member who owns an electrical contracting company which has contracted to do electrical work for a sign company would not be prohibited by Section 112.3143 from voting on the proposed ordinance. A council member whose brother-in-law and father-in-law own a portable sign company in the city also would not be prohibited from voting on the proposed sign ordinance. CEO's 86-35, 85-77, 85-27, and 78-13 are referenced.

QUESTION 1:

Is a city council member prohibited by Section 112.3143, Florida Statutes, from voting on a proposed sign ordinance where the council member is the owner of a commercial art shop which produces signs, among other products?

This question is answered in the negative.

In your letter of inquiry you advise that .... serves as President of the Jacksonville City Council and is the owner of a silk screen commercial art shop which produces decals, bumper stickers, magnetic signs, t-shirts, interior paper signs, and banners. It produces no billboards or lighted signs. The primary products that the business uses are wood, paper, and cardboard. Among some of the other printed signs that are produced by the company are real estate signs. The company has no contracts with billboard companies or sign companies. The council member owns no interest in any billboard company or any sign company.

You also advise that the City Council currently is considering a proposed sign ordinance. The proposed ordinance would require sign owners, lessors, and other users to maintain signs in good repair and to obtain sign permits from the City upon the payment of permit fees. The ordinance contains provisions regarding the abatement of signs in violation of the ordinance and procedures for the removal of illegal, unauthorized, or unpermitted signs by the City. The proposed ordinance creates zoning limitations on signs which restrict the size, type, and location of on-site and off-site signs in residential, commercial and industrial, and open rural zoning districts, and prohibits certain types of signs in varying districts. Finally, the ordinance contains several "grandfather" provisions applicable to various types of existing signs.

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 (1985).]

In a recent opinion, CEO 86-35, we interpreted this provision in the context of a proposed county impact fee ordinance. In addressing the question of when a particular measure will inure to the "special private gain" of a public official, we advised that

where the class of persons affected by a particular measure is large, a "special" gain will result only if there are circumstances unique to the officer or principal under which he or the principal stands to gain more than the other members of the class. In other words, where governmental action is through the enactment of legislation, rules, or ordinances of general applicability, the pertinent question is whether there are particular circumstances or aspects of the enactment under which the official's interest are impacted to a significantly greater (or lesser) degree than other members of the affected class.

Further, in a number of situations we have found that any gain or loss resulting to an official's business would be too speculative and remote to conclude that a measure under consideration would inure to the "special gain" of the official. For examples, see CEO 85-77 (school board member owning business near proposed location of school district administrative complex), and CEO 85-87 (city council member voting on redevelopment of property located next to bank which employs him).

The ordinance under consideration here would regulate sign owners, lessors, and other users by requiring permits and maintenance and by regulating the size, type, and location of signs within various zoning districts. Therefore, the class of persons directly affected by the ordinance would consist of sign owners, lessors, and other users. The subject Council member, however, would be a member of an even broader class of persons and businesses indirectly affected by the ordinance. Given the nature of the Council member's business and the proposed ordinance, we see no reason to believe that the Council member would be affected by the sign ordinance to a significantly greater (or lesser) degree than other businesses which would be affected by the ordinance. In addition, given the indirect effect of the ordinance on the Council member's business, a great deal of speculation on our part would be required to conclude that his business stands to gain or lose from the ordinance to any significant degree.

Accordingly, we find that the subject City Council member is not prohibited from voting by Section 112.3143, Florida Statutes, on the proposed sign ordinance.

QUESTION 2:

Is a city council member prohibited by Section 112.3143, Florida Statutes, from voting on a proposed sign ordinance where the council member is the owner of an advertising business which recommends and purchases billboard space for its clients?

This question also is answered in the negative.

In your letter of inquiry you advise that Mr. Jim Atkins serves as a member of the Jacksonville City Council and has his own advertising business through which he purchases advertising for his clients. Among the advertising that he may recommend and purchase for his clients is billboard space. These billboards are off-site signs which would be regulated by the proposed sign ordinance. For the placement of billboard advertising, the billboard company pays the Council member a commission. The Council member owns no interest in any billboard company or any sign company.

In our view, the subject Council member is in substantially the same situation as the Council member addressed in your first question. As the owner of an advertising business, he also falls within the broader class of persons and businesses which would be indirectly affected by the proposed ordinance.

Accordingly, given the nature of his business and of the proposed ordinance, we find that the subject Council member would not be prohibited by Section 112.3143, Florida Statutes, from voting on the proposed sign ordinance.

QUESTION 3:

Is a city council member prohibited by Section 112.3143, Florida Statutes, from voting on a proposed sign ordinance where the council member is the owner of a company which does electrical contracting work and which has a contractual arrangement to do electrical work for a sign company?

This question also is answered in the negative.

In your letter of inquiry you advise that Mr. Ed Holtsinger serves as a member of the Jacksonville City Council and is the owner of a company which does electrical contracting work and which has a contractual arrangement with a sign company located in the City. The sign company manufactures and installs on-site signs, which would be regulated by the proposed sign ordinance. The Council member, through his company, inspects and approves the electrical work that is performed on the signs. He signs the electrical permits that are required by the City building code. He has no interest in any sign or billboard company.

It is our opinion that the situation of this Council member is similar to that of your first question, as he would be a member of the broader class of persons and businesses indirectly affected by the proposed ordinance. We need not consider the impact of the proposed sign ordinance on the sign company with which the council member's company has contracted, as we previously have found that an independent contractor relationship does not fall within the scope of the principal/agent relationship addressed by Section 112.3143. See CEO 84-108, CEO 80-49, and CEO 80-3.

Accordingly, we find that the subject City Council member is not prohibited by Section 112.3143, Florida Statutes, from voting on the proposed sign ordinance.

QUESTION 4:

Is a city council member prohibited by Section 112.3143, Florida Statutes, from voting on a proposed sign ordinance where the council member's brother-in-law and father-in-law own a portable sign company in the city?

This question also is answered in the negative.

In your letter of inquiry you advise that Mr. Jim Wells serves as a member of the Jacksonville City Council and that his brother-in-law and father-in-law own a portable sign company in the City. Neither the Council member nor his wife has any financial interest in the company or receives any compensation or remuneration from the company. The sign company deals in portable signs which would be regulated under the proposed ordinance. The Council member owns no interest in any billboard company or any sign company.

In previous opinions we have advised that no voting conflict of interest would be created under Section 112.3143 where a public official is faced with voting on a measure which would affect the interests of his parent (CEO 85-27 and CEO 85-77) or daughter-in-law (CEO 78-13). Here, you have advised that neither the Council member nor his wife has any financial interest in the company or receives any compensation or remuneration from the company. For this reason, we find that the rationale of our previous opinions would apply here.

Accordingly, we find that the subject City Council member is not prohibited by Section 112.3143, Florida Statutes, from voting on the proposed sign ordinance.