CEO 89-16 -- April 13, 1989

CONFLICT OF INTEREST

CITY COMMUNITY DEVELOPMENT BLOCK GRANT

TASK FORCE MEMBER RECEIVING UTILITY CONNECTIONS

FROM BLOCK GRANT FUNDS

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

SUMMARY:

A prohibited conflict of interest exists where a member of a town citizen advisory task force responsible for advising the town council regarding the use of community development block grant funds owns rental property which receives municipal water and sewer connections from those funds. However, the conflict of interest on the part of the advisory board member may be waived as described in Section 112.313(12), Florida Statutes. Also, Section 112.3143, Florida Statutes, would require the task force member to abstain from voting on his application to receive community development block grant funds.

QUESTION 1:

Would a prohibited conflict of interest be created if a member of a town citizen advisory task force owns rental property which receives municipal water and sewer connections from those funds?

Your question is answered in the affirmative, subject to the exemption noted below.

In your letter of inquiry you advise that . . . is a member of the Orange Park Citizen Advisory Task Force. In 1987 the Town of Orange Park was awarded a community development block grant for a neighborhood revitalization program under which the Town received federal funds disbursed from the Department of Community Affairs. Pursuant to Section 290.046(6), Florida Statutes, the Town Council established a Task Force comprised of citizens from the area in which the block grant was to be implemented to provide advice on all phases of the project. The Task Force meets approximately once each month to discuss various matters relating to the project, including applications for block grant funds, and to vote on their recommendations to the Town Council. The Council makes all final determinations on allocating community development block grant funds.

You further advise that this particular grant allows for persons with property in its targeted area to benefit with municipal water and sewer connections. Although the original intent of the grant was to address owner-occupied property, the guidelines for water and sewer connections state that rental property would be considered for connections if funds were available after all owner-occupied units were addressed. The subject Task Force member owns a rental home within the target area and has requested that this property be connected to the municipal utility system utilizing block grant funds.

The Code of Ethics 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 (1987).]

This provision prohibits a public officer from having any employment or contractual relationship which would create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties.

In a previous advisory opinion, CEO 83-53, we advised that a prohibited conflict of interest existed where a member of a city community development advisory committee responsible for advising the city regarding use of community development block grant funds was employed as the executive director of a nonprofit corporation receiving those funds from the city. However, we noted that Section 112.313(12), Florida Statutes, provides an exemption for persons serving on an advisory board where a waiver is obtained from the body which appointed the person to the advisory board upon a full disclosure of the transaction or relationship and an affirmative vote in favor of waiver by a two-thirds vote of that body. Also, we advised that we have promulgated Commission on Ethics Form 4A, "Disclosure of Business Transaction, Relationship, or Interest," for use in making the disclosure required by that provision. We are of the opinion that the same conflict of interest confronts the Task Force members here and that, given the advisory nature of the Task Force, the exemption of Section 112.313(12) is equally available to the Task Force member.

Accordingly, we find that a prohibited conflict of interest would be created were the subject Citizen Advisory Task Force member to receive municipal water and sewer connections for his rental property unless a waiver is obtained from the body which appointed him, the Town Council, in accordance with the provisions of Section 112.313(12), Florida Statutes. We note that the Town's block grant agreement with the Department of Community Affairs contains certain conflict of interest provisions. As those provisions are not part of the Code of Ethics we have no authority to interpret them.

QUESTION 2:

Is the Citizen Advisory Task Force member prohibited by Section 112.3143, Florida Statutes, from voting to recommend the approval of his own application to receive community development block grant funds?

This question is answered in the affirmative.

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 (1987).]

Under this provision, a local public officer is prohibited from voting upon a measure which inures to his special private gain and from knowingly voting on a measure which inures to the special gain of a principal by whom he is retained. We note that for purposes of this subsection the term "public officer" includes any person elected or appointed to hold office in any agency, including any person serving on an advisory body. Section 112.3143(1), Florida Statutes.

Previously, we have advised that the question of whether a particular matter will result in "special" gain generally will turn on the size of the class of persons benefited and the nature and extent of any gain received. Clearly, if a measure would benefit only property in which the Task Force member has an interest, he would have a conflict in voting on that measure.

Accordingly, we find that Section 112.3143(3), Florida Statutes, would require the subject Citizen Advisory Task Force member to abstain from voting to recommend the approval of his application to receive community development block grant funds, to announce the nature of his interest in the matter at the meeting, and to file Commission on Ethics Form 8B, "Memorandum of Voting Conflict for County, Municipal, and Other Local Public Officers," within 15 days with the person responsible for recording the minutes of the meeting. We also note that Section 112.3143(2)(b), Florida Statutes, would prohibit the Task Force member from participating in any matter which inures to his special private gain without first disclosing the nature of his interest in the matter.