George v. City of Cocoa

United States Court of Appeals,

Eleventh Circuit.

No. 94-3453.

Mary GEORGE; Charles L. Stovall; Martha Ray Bethel; W.O.
Wells, Reverend; Joann Stovall; Barbara Jenkins; Sylvester
Weaver, Plaintiffs-Appellants,

v.

CITY OF COCOA, FLORIDA: Cocoa City Council; Lester Campbell,
Mayor-Councilmember of the City of Cocoa; Ray Debord, John Lee
Blubach, Dave Salisbury, members of the Cocoa City Council, et al.,
Defendants-Appellees,

Ray Griffin, Member of the Cocoa City Council; Fred Galey,
Brevard County Supervisor of Elections, Defendants.

Feb. 29, 1996.

Appeal from the United States District Court for the Middle
District of Florida. (No. 93-257-CIV-ORL-18), G. Kendall Sharp,
Judge.

Before ANDERSON and BLACK, Circuit Judges, and HENDERSON, Senior
Circuit Judge.

PER CURIAM:

This case comes to us on appeal from the district court's

order denying the parties' joint motion to approve a consent decree

and enter judgment. We have jurisdiction and for the reasons set

forth in this opinion, we reverse and remand for further

proceedings not inconsistent with this opinion.

Factual and Procedural Background

On April 12, 1993, appellants filed a complaint in the United

States District Court for the Middle District of Florida; they

alleged that the at-large method of electing city council members

in Cocoa dilutes minority voting strength in violation of section
2 of the Voting Rights Act of 1965.1 In July 1993, the Cocoa City

Council appointed Rudolph Stone, one of the African-American

plaintiffs in the voting rights litigation, to fill a vacant

council seat. Immediately upon his appointment, Stone withdrew as

a plaintiff and was named a defendant. In November 1993, Stone was

elected under the at-large system to keep his council seat for

another three-year term.

Settlement negotiations in the voting rights litigation

ultimately led to an agreement. The Cocoa City Council voted to

replace the system of at-large elections for all five of its

members with a system under which four members would be elected

from single member districts and the fifth council member, who also

serves as the mayor, would continue to be elected at-large.

African-American voters would constitute a majority of the voters

in one of the proposed single member districts. Three members of

the city council, including Stone, voted in favor of the proposed

consent decree; the remaining two members voted against it.

On July 28, 1994, the parties to the voting rights litigation

filed a joint motion in the district court to enter the consent

decree. Four Cocoa voters, appearing asamici curiae in opposition

to the proposed consent decree, suggested to the district court

that Stone should have abstained from the city council's decision

whether to adopt the redistricting plan. The district court

ordered a hearing on the consent decree, and instructed the parties

and amici to limit their arguments to the issue of Stone's

1
Pub.L. No. 89-110, § 2(b), 79 Stat. 437, codified at 42
U.S.C. § 1973(b) (1988).
participation in the city council's consideration of the

redistricting plan. Following this hearing, the district court

concluded that Stone's participation in the vote constituted a

conflict of interest under Florida's ethics statutes, and that

Stone's vote could not be counted. In its October 25, 1994, order,

the court explained:

In this case, Mr. Stone was in a unique position to gain
from the redistricting decision made by the Cocoa City
Council. Mr. Stone had originally filed this suit as a
plaintiff seeking to increase the voting power of Cocoa's
black community. Though Mr. Stone had been dropped as a
plaintiff and had been elected along with the other council
members through the at-large process, as an African-American
candidate he stood to gain inordinately from the vote. The
consent decree's solution to the problem of increasing black
voting power would create a district where the black majority
was expected to elect a black representative, and Mr. Stone
would be a resident of that district. In short, by voting on
this decree, Mr. Stone facilitated his own chances for
reelection and involved himself in a situation fraught with
the potential for conflicting interests.

R2-40-6-7. With the disqualification of Stone's tie-breaking vote,

the remaining city council members were deadlocked (two-two) on the

redistricting plan. The district court thus held that the consent

decree was void and refused to enter judgment.

Discussion

The issue is whether the district court misapplied Florida law

in disqualifying Stone's vote on the redistricting plan.2 Neither

party argues in support of the district court's decision; both

parties agree that Stone's vote should not have been disqualified.

We also conclude that the district court erred.

Florida law imposes on elected officials an affirmative duty

2
We do not address the merits of the proposed consent
decree.
to vote on all matters before them; abstaining from a vote is

prohibited unless "there is, or appears to be, a possible conflict

of interest under § 112.311, § 112.313, or § 112.3143."

Fla.Stat.Ann. § 286.012 (West 1995). Section 286.012 speaks only

of when a public official may abstain from voting; it does not

describe the circumstances under which a public official must

abstain from voting. The statutory provision dealing with

mandatory abstention from city council voting is Fla.Stat.Ann. §

112.3143(3)(a) (West 1995); it provides that "[n]o 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...." Under § 112.3143(3)(a), the identification of a

"special private gain or loss" to the city council member as a

result of his or her vote is a necessary condition for

disqualification.

A "special private gain" described by the voting conflicts

statute almost always (if not always) refers to a financial

interest of the public official that is directly enhanced by the

vote in question. See Izaak Walton League of America v. Monroe

County, 448 So.2d 1170, 1173 n. 8 (Fla.App. 3 Dist.1984)

(explaining that § 112.3143 does not apply "to bias or prejudice on

the part of a public officer based on other than private economic

interests or relationships" (quoting Op.Fla.Comm. Ethics 79-14

(1979))); see also Op.Fla.Comm. Ethics 90-20 (1990) (holding that

a city council member, whose property would be affected by proposed

special assessment, must abstain from voting, "[g]iven the direct,

personal financial effect striking the assessment would have on
[his] interests) (emphasis added); Op.Fla.Comm. Ethics 79-14

(1979) (holding that a city council member may not abstain from

voting on matters involving his personal foe and stating that "it

is clear that, when adopting the Code of Ethics, the Legislature

was concerned primarily with the effect of a public official's

economic interests and relationships upon the performance of his

public duties, rather than the effect of his personal preferences

or animosities.").

Stone's vote on the redistricting plan did not result in any

direct financial benefit to him. If a "special private gain" under

§ 112.3143(3)(a) is limited to a financial gain, then Stone's vote

should not have been disqualified. The district court, however,

stated that it would be "inappropriate" to limit the application of

§ 112.3143 to conflicts surrounding finances,3 and held that

Stone's status as a potential African-American candidate in a

district in which the majority of voters were also African-American

was a "special case" that presented a "heightened potential for

conflict." R2-40-8.

Assuming arguendo that § 112.3143(3)(a) is not limited to

financial matters, we address potential non-economic "interests" of

3
The only authority cited by the district court for this
proposition is Garner v. State Com'n on Ethics, 439 So.2d 894
(Fla.App. 2 Dist.1983)—a case that has nothing to do with voting.
In Garner, the ethics commission considered a complaint alleging
that a college president abused his official position by seeking
sexual favors from female subordinate personnel. The ethics
commission found that this behavior violated Fla.Stat.Ann. §
112.313(6) (West 1994), which provides that "No public officer or
employee of an agency ... shall corruptly use or attempt to use
his official position ... to secure a special privilege, benefit,
or exemption for himself or others." The Florida appeals court
held that sexual favors constitute a "special benefit" within the
meaning of the statute. Garner, 439 So.2d at 895.
Stone. We can imagine only two such putative "interests" that may

have been affected by his vote: his ideological interests as an

African-American voter and former plaintiff in the voting rights

litigation; and his political interests as an incumbent city

council member planning to run for reelection. Neither of these

interests would have required Stone to abstain from voting.

Because Stone is a former plaintiff in the voting rights

litigation, it may be reasonable to infer that Stone has an

ideological interest in changing the way that city council members

in Cocoa are elected. The plaintiffs in the voting rights

litigation contended that the at-large electoral system unlawfully

diluted minority voting strength, and sought to have it replaced

with a system of single-member districts. Because the city's

redistricting plan adopts some of the relief requested in the

voting rights litigation, Stone's putative ideological interest was

no doubt furthered by his vote as a city council member.

Nevertheless, an ideological victory is not the kind of "special

private gain" that disqualifies an elected official's vote. The

Izaak Walton case clearly establishes that a person who holds a

preconceived and publicly expressed opinion on a particular matter

is not barred from voting on that matter as a public official. See

id., 448 So.2d at 1171 (holding that "political officeholders may

not be prevented from performing the duties they have been elected

to discharge [i.e., voting] merely because ... they have previously

expressed, publicly or otherwise, an opinion on the subject of

their vote"); see also Op.Fla.Comm. Ethics 88-18 (1988) (same).

If ideology presented a conflict of interest situation, no public
official could vote on any of his or her campaign promises. More

specifically relevant to this case, there is precisely the same

inference of an ideological interest on the part of the other

council members arising from their status as defendants in the

litigation and the positions they apparently took in the case.

The district court recognized that Stone's ideological

interests as a former plaintiff in the voting rights litigation

could not serve as a valid basis for disqualification,4 and focused

instead upon Stone's political interests as an incumbent city

council member planning to run for reelection in one of the new

single member districts. The district court reasoned that Stone's

vote on the redistricting plan inured to his "special private gain"

because it "facilitated his chances for reelection." R2-40-7. To

constitute a prohibited voting conflict, however, the possibility

of gain must be direct and immediate, not remote and speculative.

In Op.Comm. Ethics 93-4 (1993), for example, a city council member

asked the ethics commission whether he could vote on rent increases

at the city's mobile home park, where he proposed to build a

similar park across the street. The ethics commission found that

the assumption that the city commissioner could charge higher rents

at his "still to be built" park was too remote and speculative to

create a voting conflict. See also Op.Fla.Comm. Ethics 94-018

(1994) ("[W]here the official's ... gain (or loss) would require

many steps and be subject to many contingencies, with the outcome

4
See R2-40-5 ("Respect for a citizen's right to express
opinions on matters of public importance requires courts to
permit officials to vote on issues even when they have previously
filed suits to protest the burdening of their rights.").
by no means certain, any gain or loss would be remote and

speculative."). In this case, the district court speculated that
5
Stone planned to run for reelection in 1996 and that Stone's

chances for reelection were improved by the redistricting plan. As

an incumbent who won an election under the at-large system,

however, the transformation to single-member districts actually may

have impaired Stone's interests as a candidate by increasing the

competitiveness of elections. See, e.g., McMillan v. Escambia

County, 748 F.2d 1037, 1045 (5th Cir.1984) (noting that at-large

electoral systems may deter candidacies, particularly by African-

American candidates, for elected office). In short, Stone's

interests as a potential candidate were too "speculative and

remote" to warrant disqualification of his vote.

Furthermore, every one of the incumbent city council members,

not just Stone, had an interest in shaping districts favorable to

his or her reelection. For example, district boundaries may have

been drawn to avoid future contests between incumbent city council

members. Cf. Karcher v. Daggett, 462 U.S. 725, 740, 103 S.Ct.

2653, 2663, 77 L.Ed.2d 133 (1983) (describing the avoidance of

contests between incumbents as a "legitimate objective" in

legislative redistricting); Gaffney v. Cummings, 412 U.S. 735,

752-54, 93 S.Ct. 2321, 2331-32, 37 L.Ed.2d 298 (1973) (recognizing

that legislators involved in redistricting decisions inevitably

take into account various "political considerations" in drawing

5
The record indicates that Stone was elected under the
at-large system in November 1993, and that city council members
in Cocoa serve three-year terms. Stone would therefore be up for
reelection in November 1996—more than two years after the
district court entered its order in this case.
district lines). In this regard, there is no difference in

principle between Stone and the other city council members: each

member's chances for reelection was directly affected by the

drawing of district lines. It would be absurd to interpret

Florida's voting conflicts statute in such a way that would

disqualify all members of legislative bodies from participating in

legislative redistricting decisions. Cf. United States v. Will,

449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980) (construing the

judicial disqualification statute as implicitly incorporating a

common-law "rule of necessity" exception, which applies when all

federal judges have an interest in the outcome of a case);

Op.Fla.Comm. Ethics 86-57 (1986) (advising that the threat of a

lawsuit arising from a vote does not require disqualification;

"otherwise, any person might be able to disqualify an entire

board").

In its order disqualifying Stone's vote, the district court

appears to understand that its interpretation of Florida's voting

conflicts statute could undermine the ability of all legislators to

participate in the redistricting process.6 To distinguish Stone

from the other city council members, the district court reasoned

that Stone was somehow in a "unique position to gain from the

redistricting decision." R2-40-6. However, the district court was

vague in its identification of Stone's supposed unique position.

As demonstrated above, there is no legitimate basis to distinguish

Stone from the other council members.

6
The court cautioned that "[t]his holding should not be
construed to disqualify all legislators from participating in all
issues related [to] voting and elections." R2-40-7.
 If the district court relied on Stone's race to distinguish

Stone and disqualify his vote,7 that reliance was inappropriate.

Any benefit enjoyed by hundreds of African-American residents of

Cocoa is not a "special private gain" within the meaning of

Florida's voting conflicts statute, § 112.3143(3)(a). See

Op.Fla.Comm. Ethics 93-012 (pension board trustee, who is also a

participant in a class action against the city regarding the

7
In the hearing on the proposed consent decree, counsel for
amici (Mr. Meros) repeatedly emphasized Stone's race as a basis
for distinguishing him from the other city council members. When
asked by the court what "stake" Stone had that would create a
"special private gain," Mr. Meros responded as follows:

His stake was, number one, as a voter of the
council, which is more general. Number two, as an
African-American. He was asserting that he, that his
rights as an African-American were not sufficiently
protected and as a result of that he wanted the
opportunity to have his vote enhanced by virtue of the
creation of single member districts. That is a
personal stake by Councilman Stone.

....

What personal stake did he have in this? His
personal stake as an African-American.

R3-6-7.

In closing his argument, Mr. Meros repeated:

I would suggest that when you talk about a "special
private gain," special means as opposed to communal,
individual as opposed to group, and Councilman Stone in
this litigation asserted that he had a private direct
interest in this litigation, clearly special and
individual due to his race as an African-American.

R3-13.

Although some of the district court's language could be
construed to indicate that the district court accepted the
foregoing invitation to consider race, we decline to believe
that. Rather, we surmise that the district court simply
failed to think the matter through thoroughly.
pension plan, is not disqualified from voting on measures

concerning the lawsuit, because the number of persons who stand to

benefit from such measures (297) is sufficiently large that any

gain to the trustee would not be "special"). Moreover, any

interpretation of § 112.3143(3)(a) that disqualifies an elected

official's vote on a matter of public concern because of race

obviously could not withstand scrutiny. Cf. Brown v. Moore, 583

F.Supp. 391, 395-96 (M.D.Ala.1984) (African-American school

commissioner is not disqualified from voting on a school

desegregation consent decree on the basis that the plaintiff class

is composed of members of his race). We therefore hold that race

could not be a valid basis for disqualifying an elected official's

vote under § 112.3143(3)(a).

Conclusion

For the foregoing reasons, the judgment of the district court

is REVERSED and REMANDED for further proceedings not inconsistent

with this opinion.