CONFLICT OF INTEREST
COUNTY COMMISSIONER'S HUSBAND SELLING REAL PROPERTY ADJACENT TO COUNTY PARK
To: Mark Herron, Esq. (Tallahassee)
No prohibited conflict of interest would be created under Section 112.313(3), Florida Statutes, were the County to purchase a parcel of real property that is owned by a County Commissioner's husband and is situated adjacent to a County Park.
Would a prohibited conflict be created under Section 112.313(3), Florida Statutes, were the County to purchase a parcel of real property that is owned by a County Commissioner's husband and is situated adjacent to a County Park?
Under the circumstances presented herein, your question is answered in the negative.
You advise that you make this inquiry on behalf of………..("Commissioner") who is a member of the Wakulla County Board of County Commissioners. By your letter of inquiry and a subsequent telephone conversation, you advise that the Commissioner was elected to the Board of County Commissioners in November 2008. Prior to her election, the Commissioner's husband purchased a lot adjacent to Crab Apple Park. You advise that on December 10, 2007, the Commissioner's husband acquired the property in his individual capacity.1 You advise that the purchase was made "with the view that someday the County would obtain grant funding to purchase all 13 lots adjacent to the park." On August 4, 2009, the Board of County Commissioners considered including Crab Apple Park ("Park") as one of three projects for a Florida Recreational Assistance Program grant. The Park was ranked second. You advise that the Commissioner recused herself from the vote and the Park was ranked second.
You advise that there is a steep drop from a nearby road down to a sinkhole located in the Park. You advise that the purchase of the parcels identified as lots 9, 10, and 11, would most effectively mitigate pollution to the sinkhole. You also advise that acquisition of Parcel 11 would facilitate access to the park from the Senior Citizens Center. You state, "Each of the properties is unique in relationship to the park." In light of the foregoing, you inquire whether Section 112.313(3), Florida Statutes, prohibits the County from purchasing the parcel owned by the Commissioner's husband.2
The only provision of the Code of Ethics implicated by your inquiry is Section 112.313(3), Florida Statutes, which provides:
DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business or when such offices are on property wholly or partially owned by the legislator. This subsection shall not affect or be construed to prohibit contracts entered into prior to:
(a) October 1, 1975.
(b) Qualification for elective office.
(c) Appointment to public office.
(d) Beginning public employment.
Because your inquiry concerns the County purchasing the parcel from the Commissioner's husband, only the prohibition contained in the first sentence of Section 112.313(3) is applicable. That clause prohibits a County Commissioner acting in her official capacity from directly or indirectly purchasing any realty from a business entity of which the officer's spouse is an officer, partner, director, or proprietor or in which the County Commissioner's spouse has a material interest. A public officer "acts in her official capacity" for purposes of this prohibition when her board acts collegially to purchase, rent, or lease, regardless of whether the public officer abstains from voting on the matter. See, CEO 90-24.
"Business entity" is defined in Section 112.312(5), Florida Statutes, as:
[A]ny corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state.
"Material interest" is defined in Section 112.312(15), Florida Statutes, as:
[D]irect or indirect ownership of more than 5 percent of the total assets or capital stock of any business entity. For the purposes of this act, indirect ownership does not include ownership by a spouse or minor child.
We first turn to the question of whether the purchase would be "from a business entity." Under appropriate circumstances, we could conclude that a purchase of real property from an individual in their personal capacity would not be "from a business entity." In light of the representation that the Commissioner's husband "purchased the property with a view that someday the County would obtain grant funding to purchase all 13 lots adjacent to the park," it could be concluded that the Commissioner's husband may have acquired the land as part of a business venture and was therefore doing business in this state as a proprietorship. Because there is an applicable exemption, we decline to decide this narrow question and assume for purposes of this opinion that he purchased the property as a business venture and, therefore, acted as a "business entity" for purposes of Section 112.313(3), Florida Statutes.
The applicable exemption is contained in Section 112.313(12)(e), Florida Statutes, and provides:
The requirements of subsections (3) and (7) as they pertain to persons serving on advisory boards may be waived in a particular instance by the body which appointed the person to the advisory board, upon a full disclosure of the transaction or relationship to the appointing body prior to the waiver and an affirmative vote in favor of waiver by two-thirds vote of that body. In instances in which appointment to the advisory board is made by an individual, waiver may be effected, after public hearing, by a determination by the appointing person and full disclosure of the transaction or relationship by the appointee to the appointing person. In addition, no person shall be held in violation of subsection (3) or subsection (7) if:
(e) The business entity involved is the only source of supply within the political subdivision of the officer or employee and there is full disclosure by the officer or employee of his or her interest in the business entity to the governing body of the political subdivision prior to the purchase, rental, sale, leasing, or other business being transacted.
This provision negates a conflict of interest under Section 112.313(3) where the "business entity" involved is the only source of supply within the political subdivision of the County Commissioner and there is full disclosure by the County Commissioner of his or her interest in the business entity to the governing body prior to the transaction. We have interpreted this provision to apply to the sale of real property. Once a political subdivision has determined that there is a need for the specific property to be acquired, we have opined that purchases of land from the necessary landowners would be permissible under the sole source exemption in Section 112.313(12)(e). See, CEO 91-31 and its progeny.
In this case, the County has determined that acquisition of the property will benefit the Park by preventing pollution from entering the Park's sinkhole and that the Senior Citizen's Center will benefit by facilitating access to the Park. Therefore, the identified need for the parcel owned by the Commissioner's husband brings this transaction within the sole source exemption. It would not be appropriate for us to second-guess the County's determination. It is not our province to interfere with or micromanage local political decisions.
Therefore, we conclude that there is no prohibited conflict of interest for the County to purchase the parcel owned by the Commissioner's husband because of the applicability of the sole source exemption in Section 112.313(12)(e), Florida Statutes. The Commissioner is advised that if the transaction occurs, she is required to file a CE Form 4A prior to the purchase being transacted. This obligation is in addition to the disclosure and abstention requirements contained in Section 112.3143(3)(a), Florida Statutes.
Your question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on February 26, 2010 and RENDERED this 3rd day of March, 2010.
Roy Rogers, Vice Chair
 The lot purchased by the Commissioner's husband is identified as Parcel 11.
 Because you have advised that the Commissioner would not vote on the matter, Section 112.3143(3)(a), Florida Statutes, is not implicated.