CEO 85-67 -- September 3, 1985

CONFLICT OF INTEREST

CITY HERITAGE CONSERVATION BOARD MEMBER APPLYING FOR LOAN FROM CITY TO MOVE HISTORIC STRUCTURE

To: Mr. John K. McPherson, Chairman, Gainesville Heritage Conservation Board

SUMMARY:

A city heritage conservation board member is not prohibited from seeking a loan from the city commission through a partnership to move an historic structure, although Section 112.3143(3), Florida Statutes, would prohibit him from voting on matters pertaining to the loan application. However, Section 112.313(7), Florida Statutes, would prohibit the board member from serving on the board if the board regulates the partnership's activities through the issuance of certificates of appropriateness.

QUESTION:

Would a prohibited conflict of interest be created were a partnership of which you are a general partner to apply for a low-interest loan from a city commission to move an historic structure, where you serve as a member of the city's heritage conservation board?

Your question is answered in the negative, subject to the qualification noted below.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that you serve as the Chairman of the Gainesville Heritage Conservation Board. You also have advised that the Board plays a role in designating historic districts and historic property within the City, passes on applications for certificates of appropriateness which are necessary in order to make material changes to historic structures, and advises the City Commission on historic preservation matters. A recent goal of the Board has been to establish loan pools for both the moving and the rehabilitation of historic houses in the City. As Chairman of the Board you promoted the creation of both loan pools by lobbying City Commissioners and attending meetings on the subject. Having established a loan pool for moving historic structures, the City now has advertised for applications for loans. The City Commission will make the final decision on loan applications based on the financial soundness of the proposed plan for the structure and the historical significance of the structure.

You have also advised that a large contributing structure in the City's Historic District has been threatened with demolition. You question whether a partnership of which you are a general partner may apply for a loan from the pool to move the threatened house. You have advised that the City does not expect applications for more funds than are available from the loan pool, but that if enough applications are received the evaluation of proposals will be a competitive process. You also have advised that the City Commission may seek the advice of the Heritage Board in evaluating loan proposals, especially if there are applications for more funds than are available from the loan pool. In addition, it is possible that the Board will be required to grant a certificate of appropriateness for the relocation and restoration of the structure.

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).]

The Code of Ethics also provides:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. 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. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one- acre, one-vote basis is not prohibited from voting. [Section 112.3143(3), Florida Statutes (Supp. 1984).]

We are of the opinion that you may continue to serve on the Heritage Board if your partnership were to apply for and receive a loan from the City Commission. Section 112.313(7) prohibits you from having a contractual relationship with an agency or a business entity either which would be subject to the regulation of your agency or which would be doing business with your agency. As a general partner, you have a contractual relationship with the partnership and would have a contractual relationship with the City Commission were your partnership to receive a loan from the Commission. Under the circumstances presented, it is clear that neither the partnership nor the City Commission is subject to the regulation of the Heritage Board with respect to loan applications; nor would the partnership or the City Commission be doing business with the Heritage Board.

In addition, we find that neither your contractual relationship with the partnership nor with the City Commission through the receipt of a loan would create a continuing or frequently recurring conflict of interest or impede the full and faithful discharge of your public duties. In the event that the City Commission seeks the advice of the Heritage Board regarding loan applications, you would be required by Section 112.3143(3) to abstain from voting on recommendations concerning your partnership's loan application. In addition, if the City receives applications for more funds than are available, resulting in a competitive situation among loan applications, we suggest that you abstain from voting on any application because of the effect that granting or denying another application might have on your partnership's application.

However, if it is determined that a certificate of appropriateness must be granted by the Heritage Board in order to effect the relocation or restoration of the structure, we find that you would have a contractual relationship with a business entity which would be subject to the regulation of the Heritage Board, as the Board would be in a position to review and determine the appropriateness of the activities of the partnership in relocating or restoring the structure. In that event, we are of the opinion that you would have to choose between continuing service on the Heritage Board and continuing your involvement with the partnership. Under Section 112.3143(3) you would be prohibited from voting on the determination of the Board that a certificate of appropriateness would or would not be required for the structure.

Accordingly, we find that the Code of Ethics would not prohibit you from continuing to serve on the Heritage Board were your partnership to apply for and receive a low-interest loan from the City Commission to move an historic structure, although you would be prohibited from voting on matters coming before the Board which would impact on the partnership's loan application. If it is determined that the Heritage Board is required to issue a certificate of appropriateness for the relocation or restoration of the structure, you will be required to choose between continuing involvement in the partnership and continuing service on the Heritage Board at the time the partnership seeks a certificate of appropriateness.