CEO 78-86 -- November 15, 1978

CONFLICT OF INTEREST

BOARD OF ADJUSTMENT MEMBER OCCASIONALLY REPRESENTING CLIENTS BEFORE BOARD OF ADJUSTMENT

To: Charles Vitunac, Palm Beach County Assistant County Attorney, West Palm Beach

Prepared by: Phil Claypool

SUMMARY:

The Code of Ethics prohibits a public officer from having any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties, and also prohibits such employment or contractual relationships as would impede the full and faithful discharge of one's public duties. Section 112.313(7)(a), F. S. 1977. In a previous advisory opinion, CEO 77-126, it was found a prohibited conflict of interest was created where a municipal planning board member privately had represented clients before the board on 11 of the 26 issues coming before the board, under the rationale that "undertaking to represent a client before a board of which one is a member necessarily interferes with the full and faithful discharge of one's public duties . . . ." Where a public officer undertakes to represent another person's interests before his own board, the board member has the advantage of knowing intimately board procedures as well as the particular interests, views, and voting records of its members. Also, the public officer's independence and impartiality are jeopardized, and such representation presents the appearance of public office being used for private gain. See s. 112.311, F. S. Accordingly, a prohibited conflict of interest would be created were a member of a county board of adjustment, or any member of his professional firm, to represent a client before the board.

QUESTION:

Does a prohibited conflict of interest exist when a member of a county board of adjustment occasionally represents in his private capacity a client before the board of adjustment?

Your question is answered in the affirmative.

In your letter of inquiry you advise that Mr. Jan Wolfe is a member of the Palm Beach County Board of Adjustment who is contemplating representing a client, through his land-planning and development consulting firm, before the board of adjustment. Also, you reference a previous advisory opinion of this commission, CEO 77-126, which found that a prohibited conflict of interest was created when a municipal planning board member privately had represented clients before that board on 11 of the 26 issues coming before the board, and you question whether more occasional representations would be prohibited.

The Code of Ethics for Public Officers and Employees prohibits a public officer from having any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties, and also prohibits such employment or contractual relationships as would impede the full and faithful discharge of one's public duties. Section 112.313(7)(a), F. S. 1977. Conversely, the Code of Ethics also provides:

Construction -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of this state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, F. S. 1977.]

In interpreting these two provisions of the Code of Ethics in CEO 77-126, we advised that

undertaking to represent a client before a board on which one is a member necessarily interferes with the full and faithful discharge of one's public duties and, particularly in the instant case where such representations are frequent, presents a continuing or frequently recurring conflict in violation of the second clause of s. 112.313(7)(a), above.

In other words, any representation of a client for compensation before a board of which one is a member impedes the full and faithful discharge of one's public duties, in violation of s. 112.313(7)(a). When one is employed to make several such representations, a frequently recurring conflict of interest arises, in further violation of that section.

We previously have advised that the Code of Ethics does not prohibit a public officer's appearing in his own behalf before any agency of government, including his own agency. See CEO 77-119. However, a different situation is presented when, as a part of his profession or occupation, an individual undertakes to represent another person's interests before his own board. When that occurs, the board member has the advantage of knowing intimately board procedures as well as the particular interests, views, and voting records of its members, and he can tailor his representation accordingly. In addition, the public officer's independence and impartiality are jeopardized. Finally, the appearance of public office being used for private gain undermines the confidence of people in their government. Such a situation would be similar to a member of the Commission on Ethics being retained to represent one who is charged with a violation of the Code of Ethics, or to a legislator acting as a paid lobbyist before the Legislature. See s. 112.311, F. S., in this regard.

We do not feel that this conflict of interest could be mitigated or avoided by having another member or an employee of the public officer's professional firm represent the client before his board. The same conflict of interest and appearance of conflict of interest would be involved in this type of representation, as well as the same direct private gain to the public officer.

Accordingly, we find that a prohibited conflict of interest would be created were a member of a county board of adjustment to represent a private client before that board.