CEO 89-44 -- September 14, 1989

CONFLICT OF INTEREST

SPOUSE OF CITY COMMISSIONER IN REAL ESTATE BUSINESS WITHIN THE CITY

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

SUMMARY:

No prohibited conflict of interest would be created were the spouse of a city commissioner to engage in business within the city as a real estate broker and consultant, where his business requires occasional contacts with personnel in city departments. The city commissioner would have no employment or contractual relationship with her husband's business, thus making Section 112.313(7)(a), Florida Statutes, inapplicable. However, the subject city commissioner is cautioned against using her position in any way to benefit her husband's business. CEO's 88-33, 88-35, and 87-50 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were the spouse of a City Commissioner to do business as a real estate broker and consultant within the City?

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

In your letter of inquiry, you advise that you are a City Commissioner in the City of Coral Springs. Your husband is a commercial real estate broker in the City and performs various brokerage and consulting services for clients. At times, his business requires interaction with the City Building, Planning, and Engineering Departments. He has no full-time employees and has been engaged in his business in the City for about six years. You were elected to the City Commission in March of 1988, at which time you were advised by the City Attorney that you were not to vote on matters before the City Commission regarding your husband's business. You also were advised that your husband was not to have any contacts with the above mentioned City departments, but rather to clear all activities involving the City with the City Manager to avoid the potential for conflict. You and your husband have strictly observed these conditions since that time, but these restrictions have had negative effects on his business. Consequently, you now inquire whether any provision of the Code of Ethics would require these restrictions on his activities. You agree that you may not vote on matters before the Commission involving his business.

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.

This provision prohibits a public officer from having employment or a contractual relationship with a business entity which is subject to the regulation of his agency, and also prohibits a public employee from having any employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of public duties.

Prior Commission on Ethics opinions have advised that this provision applies only to the activities of the public officer and not to those of a spouse. See CEO's 88-33, 88-35, and 87-50. As long as you have no employment or contractual relationship with your husband's business, this section would not apply.

Although there is no provision in the Code of Ethics prohibiting your husband's interaction with City Departments in connection with his business interests, several cautions are in order with regard to his activities. First, should you acquire any employment or contractual relationship with your husband's business, Section 112.313(7)(a) would be implicated. Secondly, you may not in any way use your position to aid his interactions with City personnel. Any efforts to speak with City employees on his behalf, for example, may be violative of Section 112.313(6), Florida Statutes. That section provides:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly 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.

Also, while this section does not apply directly to the spouse of a public officer, using that status in dealings with City employees could create the impression that your future actions involving the same employee are related to that employee's conduct with regard to your spouse.

Thirdly, if you were to supply your husband with any information not available to members of the general public that you acquired as a result of your position for his personal gain, you would be in violation of Section 112.313(8), Florida Statutes. That section states:

DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity.

Lastly, as you correctly note in your letter of inquiry, you may not vote on any matters coming before the Commission which could inure to the special private gain of your husband. Section 112.3143(3), Florida Statutes, 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.

Accordingly, with the above cautions, we find that no prohibited conflict of interest would be created were your spouse to engage in real estate brokerage and consulting services which involve contacts with City Departments where you serve as a City Commissioner.