CEO 89-27 -- June 14, 1989

CONFLICT OF INTEREST; VOTING CONFLICT

CITY-COUNTY PLANNING COMMISSION MEMBER

PROVIDING CONSULTING SERVICES TO GOVERNMENTAL AGENCIES

To: Ms. Debra L. Romanello, Attorney for Hillsborough County City-County Planning Commission (Tampa)

SUMMARY:

A member of a city-county planning commission may provide consulting services to a state agency regarding a proposed expressway which may eventually require some degree of review by the commission. The member also may provide consulting services to local government entities on an occasional basis regarding projects which require review by the Commission, but might be prohibited from providing such services if the Commission's frequent review is required. In addition, use of one's official position to obtain consulting work would constitute a violation of Section 112.313(6), Florida Statutes. The member is not prohibited from voting on measures which inure to the special private gain of a state agency or local government entity by which he is retained. CEO's 88-20, 84-1, 83-27, and 81-84 are referenced.

QUESTION:

Would a prohibited conflict of interest be created if a member of a city-county planning commission were to provide consulting services to a state agency or to local government entities on projects which may be brought before the commission for review?

Your question is answered in the negative, subject to the conditions specified below.

In your letter of inquiry you advise that Benjamin Withers is a member of the Hillsborough County City-County Planning Commission (HCCCPC). The HCCCPC is responsible for preparing comprehensive plans for adoption by the County and municipalities within the County, for reviewing requests for amendments to these comprehensive plans, and for making recommendations on those requests to the appropriate local governing body. Further, the Commission reviews proposed land development regulations and makes recommendations to local governing bodies concerning the relationship of the proposed regulations to the adopted comprehensive plans. These activities are advisory in nature. The subject Commission member serves without compensation other than reimbursement for expenses.

The Commission member also is an economist and planner with his own private consulting firm. He presently is subcontracting on a contract with the Florida Department of Transportation (DOT) under which he conducts feasibility studies for the proposed Suncoast Corridor, an expressway which would run through several counties, including Hillsborough County. These feasibility studies involve analyzing estimated right-of-way costs for the various alternative alignments proposed for the corridor. His services do not include the actual recommendation or selection of an alignment, although the results of his studies ultimately may influence the selection of an alignment. After the final alignment is selected, the subject Commissioner will formulate DOT's relocation assistance plan. Although his work on this project may continue past the point of any Planning Commission review, it does not appear that this work is directly related to the Planning Commission's recommendation. Any recommendation by the Planning Commission would relate to the relationship of the proposed corridor to the adopted local comprehensive plan. In addition, the subject Commission member's compensation is not contingent on or based in any way upon final approval of the corridor.

You also advise that the Commission member occasionally provides consulting services to other governmental entities. For example, as an urban planner he may be retained by government agencies to make recommendations concerning the siting of public facilities such as jails, law enforcement centers, and wastewater treatment facilities. He also has consulted with local governments adjacent to the County regarding their land use and zoning patterns. In addition, he performs market feasibility studies for areas which may be targeted by local government for revitalization. In some of these instances these matters may be brought before the Planning Commission for review. Siting of a jail facility, for example, may require an amendment to the jurisdiction's comprehensive plan, as would an area revitalization effort. Under no circumstances, however, is the subject Commission member's compensation dependent upon approval of the project by the Planning Commission or by any reviewing agency.

In CEO 81-84, we advised that, as a general rule, every person whose private employment involves real estate sales, land development, or contracting should not be prohibited from serving on a planning commission. An individual only should be prohibited from serving on a planning commission where his private interests are substantial and would be substantially affected by the commission's work.

We believe that the rationale of CEO 81-84 is applicable to the situation you have described. We have not been provided with information which would indicate that the subject Commissioner's financial interests in consulting work coming before the Commission are so substantial as to impede the full and faithful discharge of his public duties. Nor have we been provided with information suggesting that the consulting work would create a frequently recurring conflict between the Commissioner's private interests and public duties. So long as the official or his firm does not represent a client before his agency and so long as his firm's work does not present a continuing or frequently recurring conflict, the official may perform work for a client on a project which must be reviewed by his agency. See CEO 83-27 (engineering firm of a regional planning council member can perform work on applications brought before the council.)

In making this statement, however, we must caution that if the Commissioner constantly provides consulting work for governmental entities on projects which are reviewed by the HCCCPC, his consulting work could be determined to create a frequently recurring conflict of interest. Since we have been advised only that he occasionally does consulting work for these governmental entities and we are not aware of the frequency or exact details of the review by the Commission, we are unable to address this issue more specifically. The factors which we have considered in addressing this issue in other contexts are described in CEO 83-27 and CEO 84-1.

In addition, we must caution that use of one's official position to obtain consulting work could constitute a violation of Section 112.313(6), Florida Statutes, which states:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit or exemption for himself or others. This section shall not be construed to conflict with s. 104.31

Accordingly, we find that the subject HCCCPC member is not prohibited from providing consulting work to the Department of Transportation on the Suncoast Corridor. The member might be prohibited from performing consulting services regarding projects of other governmental entities if those projects will come before the HCCCPC on a frequently recurring basis.

QUESTION 2:

Is a city-county planning commission member prohibited from voting on projects of a governmental agency with respect to which he has provided consulting services?

This question is answered in the negative.

Section 112.3143(3), Florida Statutes, states:

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.

Since the Commission member's pay is not contingent on the Commission's approval of a particular project, it does not appear that approval of a particular measure involving a project on which the member provided consulting services could be said to inure to his special private gain. Section 112.3143(3) specifically exempts a person who is retained by an agency, as defined in Section 112.312(2), Florida Statutes, from the requirement of abstaining when a matter inures to the special gain of that principal by whom he is retained. Since the Department of Transportation and local government entities are agencies within the definition of Section 112.312(2), it does not appear that the Commission member would be required to abstain in circumstances where the measure would inure to the benefit of a client which is a local government or state agency. See CEO 88-20 (Question 2).

Accordingly, we find that the subject HCCCPC member would not be prohibited by Section 112.3143, Florida Statutes, from voting on projects of a local government entity or the Department of Transportation with respect to which he has provided consulting services.