CEO 85-33 -- May 10, 1985

CONFLICT OF INTEREST; QUARTERLY CLIENT DISCLOSURE

COUNTY LOCAL PLANNING AGENCY MEMBER CONTRACTING AS REAL ESTATE BROKER OR ARCHITECT WITH DEVELOPER AFTER APPROVAL OF DEVELOPMENT; DISCLOSURE OF CLIENTS REPRESENTED BEFORE COUNTY AGENCIES

To: (Name withheld at the person's request.)

SUMMARY:

No prohibited conflict of interest would be created were a member of a county local planning agency to contract to provide services as a real estate broker or architect with a developer after the local planning agency has approved the development project. The member's contractual relationships would not violate Section 112.313(7), Florida Statutes, as they would not occur until after the agency had made its final decision. A member of a county local planning agency should report the names of clients represented before agencies of the county on Commission on Ethics Form 2, Quarterly Client Disclosure, pursuant to Section 112.3145(4), Florida Statutes.

QUESTION 1:

Would a prohibited conflict of interest be created were you, a member of a county local planning agency, to contract to provide services as a real estate broker or architect with a developer after the local planning agency has approved the development?

Your question is answered in the negative.

In your letter of inquiry you advise that recently you were appointed to the Lee County Local Planning Agency, which determines whether a development is consistent with the County's comprehensive plan. Typically, the Agency determines whether a particular developer has the appropriate zoning to complete the project. After obtaining approval from the Agency, the developer is required to apply for a development order which gives "site plan approval" for the development. Finally, a building permit will be obtained. The Agency, however, deals only with the first step of the development process.

You also advise that you are a practicing architect and a registered real estate broker. You have been approached by a contractor to prepare architectural drawings for a marina boat storage facility. You informed the contractor that his site was not zoned properly for such a facility and recommended that he consult an attorney specializing in zoning changes, who probably will need to appear before the Local Planning Agency in the future. You question whether you may contract for architectural services with a contractor after he has obtained the necessary zoning change and approval from the Local Planning Agency.

The Code of Ethics for Public Officers and Employees provides in relevant part:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold 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 or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), Florida Statutes (1983).]

This provision prohibits you from having a contractual relationship with a business entity which is subject to the regulation of your agency, and prohibits you from having any contractual relationship that would present a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of your public duties.

We are of the opinion that this provision would not prohibit you from contracting as a real estate broker or architect with a developer or contractor whose project already has obtained the final approval of the Local Planning Agency. In these situations, at the time the Agency considers the project you would not have any contractual relationship which could conflict with or impede the full and faithful discharge of your public responsibilities. Similarly, no prohibited conflict of interest would be created were a former client to bring a new project in which you are not involved before the Local Planning Agency. In this respect, please note CEO 85-14, in which we advised that a public official is not prohibited from voting on a matter affecting a former client.

Accordingly, we find that no prohibited conflict of interest would be created were you to contract to provide services as a real estate broker or architect for a developer or contractor after final approval of the project by the Local Planning Agency.

QUESTION 2:

Are you, a member of a county local planning agency, required to file Commission on Ethics Form 2, Quarterly Client Disclosure, to report the names of clients represented before agencies of the county?

This question is answered in the affirmative.

Section 112.3145(4), Florida Statutes, requires each "local officer" to file a quarterly report of the names of clients represented for a fee or commission before agencies at his level of government. A member of a local planning agency would be a "local officer," as that board has land-planning or zoning responsibilities. For this reason, you are required to file Commission on Ethics Form 2, Quarterly Client Disclosure, no later than fifteen days after the last day of each quarter in which you (or any partner or associate of your firm) have represented a client before an agency of Lee County. See CEO 83-20 and CEO 80-63.