CEO 75-217A -- May 17, 1976

RECONSIDERATION OF CEO 75-217

To: Mr. Kenneth A. Jones, Assistant County Attorney, Lee County, Fort Myers

Prepared by: Bonnie Johnson

SUMMARY:

Upon request for reconsideration of CEO 75-217, the commission notes that factual information gathered in response to the original request was misstated. A member of a county planning commission holds interest in land on an island in the county which comprises approximately 4.7 percent of the total county land rather than the previously stated 15.15 percent. Further, the island itself contains less than 2.42 percent of the population of the county rather than the previously cited 17 percent. Based on this amended information, it is determined that the island in which the subject planning commissioner holds substantial real estate interests is not of sufficient significance to the county land-use planning effort so as to present a continuing or frequently recurring conflict with his public duties as previously ruled. Those interests may from time to time create conflicts with particular issues facing the commission, however, and attention therefore is directed to s. 112.3143 relating to voting conflicts of interest.

This is in response to your request, in behalf of Mr. Alan C. Peterson, a member of the Lee County Planning Commission, that question 5 of CEO 75-217 be reconsidered by the Commission on Ethics. The basis on which a reconsideration is requested is s. 112.322(2)(b), F. S. 1975, which provides that an opinion rendered by the commission "shall be binding on the conduct of the officer, employee, or candidate . . ., unless material facts were omitted or misstated in the request for the advisory opinion."

In order to respond to the original opinion request dated September 23, 1975, our staff requested a copy of the ordinance creating the Planning Commission and establishing its duties. Subsequently, we requested further information relating to the population and land area figures of Pine Island compared with those of the county as a whole. Based on the original letter of inquiry and this additional information, CEO 75-217 was issued on December 15, 1975, finding a continuing or frequently recurring conflict to exist pursuant to s. 112.313(7), F. S. 1975, based on the nature and extent of the subject planning commissioner's holdings.

By letter dated March 29, 1976, you requested reconsideration of CEO 75-217, transmitting to us memoranda from the subject commissioner and the director of the planning department verifying that the land area and population figures provided earlier were misstated. Rather than comprising 15.15 percent of the land within the county, Pine Island actually represents 4.7 percent. Further, the island contains less than 2.42 percent of the population of the county, rather than the previously cited 17 percent.

Based on this amended information, we have determined that Pine Island, in which the planning commissioner holds substantial real estate interests, is not of sufficient significance to the county land-use planning effort so as to present a continuing or frequently recurring conflict with his duties as a member of the county planning commission. However, those interests may from time to time create conflicts with particular issues facing the planning commission. We therefore call your attention to the provision of the Code of Ethics dealing with voting conflict of interest situations.

VOTING CONFLICTS. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, 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, F. S. 1975.]

By terms of the above, no public officer is required to abstain from voting on any matter. Implicitly, however, and taking into account the mandate of s. 286.012, F. S., the subject commissioner may elect to abstain from voting on a matter which presents a conflict of interest. Should he choose to vote, however, on a matter in which he has a personal, private, or professional interest which inures to his gain or to that of a client, he is required by the above-quoted provision to make a public disclosure of the conflict via the filing of CE Form 4 (copy enclosed) with the person responsible for recording the minutes of the meeting at which the vote occurred.