CEO 94-15 -- April 21, 1994

VOTING CONFLICT OF INTEREST

INLET TAX DISTRICT COMMISSIONER VOTING

ON MATTERS INVOLVING BEACH EROSION AND OWNING

BEACHFRONT RESIDENCE IN AFFECTED AREA

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

SUMMARY:

The voting conflicts law, Section 112.3143(3), Florida Statutes, is not violated where an inlet tax district commissioner who owns a beachfront residence two miles south of an inlet votes on matters involving beach erosion caused by the inlet and jetties maintained by the district. None of the measures being considered by the inlet tax district commission involve the physical placement of pumped or dredged sand on beachfront adjacent to the commissioner's property, and it is too remote and speculative to find that other measures, including studies and jetty modification, inure to the special private gain of the commissioner. Nor is the commissioner prohibited by Sections 112.313(6) or 112.313(8), Florida Statutes, from discussing the issues surrounding jetty-related beach erosion with constituents or disseminating public records involving the efforts of the inlet tax district commission to control the downdrift erosion caused by the inlet and jetties. Referenced are CEO's 91-70, 90-71, 90-15, 85-87, 85-77, 83-62, and 77-129.

QUESTION 1:

Does the voting conflicts statute contained in Section 112.3143(3), Florida Statutes, prohibit a member of the Sebastian Inlet Tax District Commission from voting on measures to deal with the erosion problem affecting beachfront downdrift of Sebastian Inlet, where the Commissioner owns a beachfront residence 2 miles south of the Inlet?

Question 1 is answered in the negative under the circumstances presented.

In your letter of inquiry and in subsequent information provided to our staff, we are advised that you represent . . . , who serves as an elected member of the Sebastian Inlet Tax District Commission, a special bi-county district located in Brevard and Indian River Counties. The Inlet Tax District Commission is charged by law with maintaining a navigable channel at Sebastian Inlet and, in doing so, constructed and maintains jetties at the mouth of the inlet. We are advised that jetties and inlets interrupt and interfere with the littoral southward flow of a river of sand that would normally be deposited on beaches downdrift of an inlet and, further, that it is a widely known and accepted fact that Florida's East Coast inlets cause significant erosion of the beaches downdrift of the coastal inlets. The Florida Legislature recognized the severity of the problem with this downdrift erosion and enacted the Florida Beach Management Act of 1988, codified at Section 161.142, Florida Statutes, which provides for the periodic dredging of beach quality sand to be placed on the downdrift, eroded beaches.

You further relate that the subject Tax District Commissioner owns a beachfront residence approximately 2 miles south of Sebastian Inlet. Being on the downdrift side of the Inlet, the beachfront in this area is severely eroded. In fact, the State has listed the 2.9 miles south of the Inlet as critically eroded. Because the Tax District Commission may vote on matters relating to the erosion problem and spend public funds for studies, contracts to modify the jetties, or even the renourishment of the downdrift beaches by pumping or dumping sand on or near the State-owned beaches immediately south of the Inlet, you question whether a voting conflict of interest would be created as a result of the location of the Commissioner's residence.

The voting conflicts law, Section 112.3143(3), Florida Statutes, provides in relevant part:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization of subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain of a relative or business associate of the public officer. 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. [Section 112.3143(3)(a), Florida Statutes (1993).]

This statute prohibits a local public officer, such as the Tax District Commissioner, from voting in certain situations, including when the matter being voted upon inures to his special private gain. We have advised that a conflict is premised upon whether the official would stand to either gain or lose as a result of the outcome of the vote, rather than upon simply whether the official would gain from the adoption of the measure. See, for example, CEO 85-77. Whether or not the Commissioner favors or opposes the renourishment of beaches south of Sebastian Inlet is immaterial to the question of whether Section 112.3143(3), Florida Statutes, requires his abstention.

In many opinions, we have focused on the size of the class of persons to be benefited by a measure in determining whether the gain or loss would be "special." See CEO 77-129 and CEO 90-71. However, a numerical analysis is unnecessary in this situation because, under the facts you have related, we conclude that the gain or loss from any of the measures you describe would be remote and speculative. In CEO 91-70, we opined that a city commissioner was not required to abstain from voting on a measure to extend parking meter enforcement hours, where he was employed by a restaurant/lounge owned by his mother which depended on on-street parking. Any gain or loss from that measure was too remote and speculative to constitute "special gain," we said. In CEO 85-87, we determined that a city council member who was a vice-president of a bank was not prohibited from voting on the sale and redevelopment of property located one block from the main office of the bank. We reasoned there that any resulting increase or decrease in the value of the property on which the bank was located was too speculative to constitute special private gain to the bank. Somewhat similarly, in CEO 85-77, we held that a school board member who owned a retail clothing business near the site of a proposed school district administrative complex was not prohibited from voting on the use of the school district's property. We opined that, although presumably all retail businesses in the area would benefit from the construction of a large office complex, any perceived gain to his business was too speculative to allow us to conclude that the school board member was required to abstain.

Here, while we recognize that the extent of the "critically eroded" beachfront downdrift from the jetties includes the beachfront property owned by the Commissioner, we have not been made aware of any specific proposal being considered by the Inlet Tax District Commission which would actually place dredged or pumped sand on the beach abutting the Commissioner's property. If and when such a proposal is considered by the Inlet Tax District Commission, the Commissioner may want to seek further guidance about the possibility of a voting conflict, since we recognize that the actual number of property owners owning property in the affected area may be relatively small. However, where the District votes to fund studies of the erosion problem and the means to alleviate it, where the District votes to modify or reconfigure the jetties so that downdrift beaches are impacted to a lesser extent, or even where the District votes to renourish beaches north of the Commissioner's property by the pumping or dumping of sand, we believe that it is too remote and speculative to find that the Commissioner will receive a special private gain from actions such as these. Although we recognize that the desired effect of these actions is replenishing sand on beaches downdrift of the Inlet and slowing the erosion process on beaches further south, and that some of that sand could even wash down the coast and renourish downdrift beaches including the Commissioner's, we believe that it is still too speculative and remote to find that these actions would inure to the special private gain of the Commissioner.

Accordingly, we find that the subject Commissioner is not prohibited by Section 112.3143(3), Florida Statutes, from voting on certain measures relating to beach restoration and/or renourishment, where none of the measures include the dumping or pumping of sand on the beachfront adjacent to the Commissioner's residence.

QUESTION 2:

Would a prohibited conflict of interest be created where the Commissioner discusses the erosion problem with constituents and furnishes them with public information, studies, or reports prepared by engineers or consultants to the Sebastian Inlet Tax District Commission?

Question 2 is answered in the negative.

Question 2 implicates the following provisions of the Code of Ethics for Public Officers and Employees:

DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), Florida Statutes (1993).]

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes (1993).]

For purposes of Section 112.313(6) the term "corruptly" is defined as follows:

'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(9), Florida Statutes (1993).]

Section 112.313(6), Florida Statutes, prohibits a public officer from using or attempting to use his official position to secure a special privilege or benefit for himself or others, where his actions are undertaken with a wrongful intent for the purpose of obtaining a special benefit resulting from actions which are inconsistent with the proper performance of public duties. Section 112.313(8), Florida Statutes, prohibits a public officer from disclosing or using information not available to the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity.

Although we generally are reluctant to render advisory opinions interpreting Section 112.313(6), Florida Statutes, since it requires an examination of intent, we can imagine no reason why the Commissioner should be restricted from presenting his views on the erosion problem caused by Sebastian Inlet and its jetties and the potential means to address the problem. Rather than being inconsistent with the proper performance of public duties, it would seem imperative that a public officer attempt to educate his constituents about the actions his agency is undertaking, as well as to participate in the public debate about the appropriateness of those actions. While he may wish to make clear that he is not necessarily representing the views of the collegial body on which he sits, we would not construe Section 112.313(6), Florida Statutes, as an abridgement of his free speech rights to discuss his views on beach erosion, whether or not he may receive some ancillary benefit as a result of actions proposed by the Sebastian Inlet Tax District Commission to address beach erosion south of the Inlet.

On the dissemination of consultants' reports and engineering studies to constituents, assuming the documents are, as you say, public records which any citizen would have the right to examine under Chapter 119, Florida Statutes, the Public Records Law, then Section 112.313(8), Florida Statutes, does not restrict the Commissioner's dissemination of the documents to the constituents he was elected to represent. We addressed this provision in CEO 90-15, where we advised a city commissioner employed as a newspaper reporter that neither Section 112.313(6) nor Section 112.313(8) would be violated as long as the information he reported on in his column was derived from public records or public meetings. As there, we would caution the Commissioner to avoid the use of District personnel or supplies in advocating his personal views about District projects. See also CEO 83-62.

Accordingly, under the described circumstances, we find that no prohibited conflict of interest would be created where the subject Commissioner discusses his views on the beach erosion problems confronting the District or shares with his constituents public record documents addressing the beach erosion issues.