CEO 95-4 -- March 9, 1995

VOTING CONFLICT OF INTEREST

COUNTY PLANNING COMMISSIONER VOTING ON COMPREHENSIVE

PLAN AMENDMENT AFFECTING PROPERTY OF RANCH IN WHICH HE,

HIS DAUGHTER, AND HIS BUSINESS ASSOCIATES OWN INTERESTS

To: Mr. Jorge L. Fernandez, Sarasota County Attorney (Sarasota)

SUMMARY:

The voting conflicts law [Section 112.3143(3)(a), Florida Statutes] requires a county planning commissioner to abstain from voting, to declare the conflict, and to file a memorandum of voting conflict regarding measures that would change the land use designation of property owned by partnerships owned by the commissioner, his daughter, and his business associates. The percentage of land owned by the partnerships in relation to the total land area affected by the measures is sufficiently large that the gain would be "special." CEO's 90-71 and 87-18 are referenced.

QUESTION:

Does the voting conflicts law [Section 112.3143(3)(a), Florida Statutes] prohibit a county planning commissioner from voting on a measure to amend the county's comprehensive plan and land use plan map when the amendment would affect land use designations of real property owned by partnerships in which the commissioner, his daughter, and his business associates hold interests?

Your question is answered as set forth below.

By your letter of inquiry, materials accompanying your letter of inquiry, a letter from your deputy, materials accompanying the letter from your deputy, and a telephone conversation between your deputy and our staff, we are advised that Mr. Thomas Dabney (hereinafter "the Commissioner") serves as a member of the Sarasota County Planning Commission, an appointed position. Further, we are advised that the Commissioner, his daughter, the mother of his deceased wife, and three brothers of his deceased wife own various interests in three general partnerships which own land in the County, upon which the partnerships engage in cattle/citrus operations.

One partnership, we are advised, owns approximately 1,800 acres. Further, we are advised that the Commissioner, in a fiduciary capacity in behalf of his daughter who owns the beneficial interest, "owns" 3.692 percent of this partnership, that three brothers of the Commissioner's deceased wife each own 3.692 percent of this partnership, that a trust of which the mother of the Commissioner's deceased wife is the current income beneficiary owns 51.325 percent of this partnership, and that another trust of which the mother of the Commissioner's deceased wife is the current income beneficiary owns 28.68 percent of this partnership.

A second partnership, we are advised, which owns approximately 2,000 acres, is owned as follows: the Commissioner, 0.9171 percent; the Commissioner, as custodian for his daughter, 1.0053 percent; the mother of the Commissioner's deceased wife, 2.6058 percent; a trust of which the mother of the Commissioner's deceased wife is the sole income beneficiary, 39.7046 percent; the three brothers of the Commissioner's deceased wife, 1.9224 percent each.

A third partnership, which owns approximately 10,000 acres, is owned as follows, we are advised: the Commissioner, 2.51455 percent; the Commissioner as trustee for his daughter, 2.71525 percent; the three brothers of the Commissioner's deceased wife, 4.9449 percent, 4.9449 percent, and 5.016125 percent, respectively; the mother of the Commissioner's deceased wife, 4.434675 percent; a trust of which the mother of the Commissioner's deceased wife is the sole income beneficiary, 24.646125 percent (the Commissioner's daughter is a one-quarter remainder beneficiary of this trust); the uncle of the Commissioner's late wife together with the uncle's wife, 50 percent.

Various smaller interests in the partnerships are owned by children of the brothers of the Commissioner's deceased wife. In addition, we are advised that the three brothers of the Commissioner's deceased wife are business associates of the Commissioner through their common ownership of partnership interests in yet another partnership, doing business as a mobile home park.

Further, we are advised:

[The Commissioner], other than in his capacity as a minority partner in the ranch partnerships and as the [c]ustodian or [t]rustee for his daughter['s] minority ownership interests in those partnerships, has no other association with the ranch partnerships. He is not the managing partner, nor is he employed by any of the partnerships. [The Commissioner] does not own any fee simple title to any of the ranch's acreage. He merely owns a very small minority interest in the entities (partnerships) that own the ranches.

The measure to come before the Planning Commission would amend the County's comprehensive plan and the land use plan map. More specifically, we are advised, the proposed changes include changing the land use designations of certain lands in the County, locating an urban service area boundary, and designating future urban service areas.

Also, we are advised that a component of the proposed amendment (the measure to be voted upon) would designate certain lands currently designated as "Rural" to "Future Urban Service Areas," which would allow greater densities than are generally allowed in Rural Areas. Further, we are advised, "approximately 1,200 acres of the ranch property will likely be changed from its current designation of 'Rural' to the new designation of 'Rural-Future Urban'," that "countywide, approximately 32,000 acres of Rural land are likely to receive the same Rural-Future Urban designation," and that "[t]herefore, the [Commissioner's] property will constitute approximately 3.75 percent of the Rural land [C]ountywide receiving the Rural-Future Urban designation."

Section 112.3143(3)(a), Florida Statutes, provides:

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 or loss; which he knows would inure to the special private gain or loss of any principal by whom he is retained or to the parent organization or 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 or loss 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.

This statute would require the Commissioner's abstention from voting and would require his declaration and filing of a memorandum of voting conflict (CE Form 8B) as to the proposed amendment measure if the measure would inure to the special private gain of the Commissioner, his "relative," or his "business associate."

Sections 112.3143(1)(b) and 112.312(4) define "relative" and "business associate" to mean, respectively

any father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, or daughter-in-law.

any person or entity engaged in or carrying on a business enterprise with a public officer, public employee, or candidate as a partner, joint venturer, corporate shareholder where the shares of such corporation are not listed on any national or regional stock exchange, or coowner of property.

Since the voting conflicts law addresses gain to one's relatives and business associates, as well as gain to one personally, and since the Commissioner's daughter is his relative and the brothers and mother of his deceased wife are his business associates [because he is engaged in or carrying on business enterprises (ranching, mobile home park) with them as partners], we must determine whether the private gain to him or to any of them resulting from the measure is "special" within the meaning of the voting conflicts law.

CEO 87-18, a previous advisory opinion issued by us, is useful in addressing the situation present in your inquiry. In that opinion, under the facts of which a comprehensive plan amendment would have affected 97,000 acres and another proposed amendment would have affected 29,000 acres, with the planning commissioner's principal holding a lease on 300 acres within the 97,000-acre and 29,000-acre areas, we found that no voting conflict existed because the total property affected was sufficiently large in relation to the amount owned by the commissioner's principal such that any gain to the principal would not be "special." For further examples of this "size of the class" analysis, see CEO 90-71 and our opinions cited therein. Generally, we have found no voting conflict when the interests involved one percent or less of the class.

In the situation described by you, the size of the area to be designated Future Urban Services Areas by the amendment is approximately 32,000 acres, with approximately 1,200 acres of ranch property being affected by the designation. While the property is owned by the partnerships and while the Commissioner owns only small minority interests in the partnerships, nevertheless the owners of the partnerships are few and the majority of the partnership interests are owned by the Commissioner's daughter and his business associates (persons enumerated within the voting conflicts law). Therefore, in following our precedent, since the property owned by the partnerships owned by the Commissioner, his daughter (relative), and his business associates encompasses 3.75 percent of the total property to be affected by the Future Urban Services Areas designation, we find that the gain would be special within the meaning of the voting conflicts law. Thus, the Commissioner would be required to abstain from voting, declare the conflict, and file CE Form 8B regarding measures containing such a designation.

However, were the measure voted upon such that the designation would apply to all land in the County or to a much greater area of land with the result that the percentage of affected land owned by the partnerships were at or below the one-percent threshold, a voting conflict would not exist.

In view of the fact that the mother of the Commissioner's deceased wife is his business associate, there is no need to determine whether she is his "mother-in-law" (despite the death of her daughter/the Commissioner's deceased wife) for purposes of the voting conflicts law. Further, whether the brothers of the Commissioner's deceased wife are his brothers-in-law does not need to be determined because one's brother-in-law is not a relative under the voting conflicts law [see Section 112.3143(1)(b) above] and because, under the facts of this opinion, the brothers-in-law are also the Commissioner's business associates.

In addition, since the Commissioner is an appointed (rather than an elective) public officer, he must abide by the requirements of Section 112.3143(4), Florida Statutes, concerning his "participation" in measures or matters which would inure to the special private gain of himself, his relatives, or his business associates. Section 112.3143(4) provides:

No appointed public officer shall participate in any matter which would inure to his special private gain or loss; which he knows would inure to the special private gain or loss of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained; or which he knows would inure to the special private gain or loss of a relative or business associate of the public officer, without first disclosing the nature of his interest in the matter.

(a) Such disclosure, indicating the nature of the conflict, shall be made in a written memorandum filed with the person responsible for recording the minutes of the meeting, prior to the meeting in which consideration of the matter will take place, and shall be incorporated into the minutes. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.

(b) In the event that disclosure has not been made prior to the meeting or that any conflict is unknown prior to the meeting, the disclosure shall be made orally at the meeting when it becomes known that a conflict exists. A written memorandum disclosing the nature of the conflict shall then be filed within 15 days after the oral disclosure with the person responsible for recording the minutes of the meeting and shall be incorporated into the minutes of the meeting at which the oral disclosure was made. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.

(c) For purposes of this subsection, the term 'participate' means any attempt to influence the decision by oral or written communication, whether made by the officer or at his direction.

Accordingly, we find that a voting conflict of interest would be created were the Commissioner to vote on the subject measure, which would change the land use designation of property owned by partnerships of which he, his daughter, and his business associates are owners, but not if the vote were on a measure that would affect the property the same as all other land in the County.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 9, 1995, and RENDERED this _____ day of March, 1995.

__________________________

R. Terry Rigsby

Chairman