CEO 81-75 -- October 29, 1981

VOTING CONFLICT OF INTEREST

MEMBER OF REGIONAL PLANNING COUNCIL AND STATE ENVIRONMENTAL REGULATION COMMISSION ACTING AS REAL ESTATE BROKER TO SELL PROPERTY FOR USE IN WASTEWATER TREATMENT

To: Mr. George M. Barley, Jr., Chairman, East Central Florida Regional Planning Council, Winter Park

SUMMARY:

Section 112.313(7), F. S., prohibits a public officer from having a contractual relationship with a business entity which is regulated by his agency; it also prohibits a public officer from having a contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties. Neither the Environmental Regulation Commission nor a regional planning council regulates a trust which owns property which may be sold for use by a city or county in wastewater treatment, although the purchaser of the property in some instances may be regulated by those agencies. Employment as a real estate broker to obtain a purchaser for such property would not present a frequently recurring conflict of interest or impede the full and faithful discharge of the duties of a member of either agency.

Whether a voting conflict of interest is created under Section 112.3143, F. S., so as to require public disclosure of the conflict depends upon the circumstances of the vote and the nature of the measure being considered. Were a member of the Environmental Regulation Commission to vote in the establishment and approval of priorities for federal funding of a wastewater treatment project if the property he is seeking to sell as a real estate broker were to be purchased for wastewater treatment and the purchaser were to apply for federal funding, a voting conflict of interest would be created if the sale of the property were contingent on obtaining federal funds and if the broker's compensation would be affected by that contingency.

QUESTION 1:

Does a prohibited conflict of interest exist where you, a member of a regional planning council and a member of the state Environmental Regulation Commission, endeavor as a real estate broker to sell property for use by a city or county in wastewater treatment?

This question is answered in the negative.

In your letter of inquiry you advise that you are a member of the East Central Florida Regional Planning Council and that you have been appointed by the Governor to serve as a member of the Florida Environmental Regulation Commission. You also advise that privately you are a real estate developer, consultant, and broker, in which capacity your firm has been engaged by a trust which owns approximately 6,000 acres of land in Orange County to assist in selling this property. Both the County and the City of Orlando have expressed interest in the possibility of buying all or part of the property for wastewater treatment by land spreading. In addition, it is possible that the property might be leased with an option to purchase for this purpose.

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), F. S. (1981).]

This provision prohibits you, as a public officer, from having a contractual relationship with a business entity which is either doing business with, or subject to the regulation of, your public agency. It appears that you have a contractual relationship with the trust, which is a "business entity" as that term is defined by Section 112.312(3), F. S. Although you advise that you have not been specifically retained by the trust, but merely have been advised by them that the property is available, you have been approached by the trust as a real estate broker regarding the sale of the property. Therefore, it appears that if your efforts to secure a buyer for the property are successful, you would be entitled to be compensated for your efforts. 7 Fla. Jur. 2d Brokers, Sections 55, 73. For this reason, we find that for the purposes of the Code of Ethics you have a contractual relationship with the trust.

Therefore, your relationship with the trust would be prohibited if the trust is doing business with or is subject to the regulation of either agency upon which you serve. Under the circumstances you have described, it is apparent that the trust is not doing business with and would not be doing business with either the Environmental Regulation Commission or the Planning Council, since the trust does nor propose to sell its property to either of these agencies.

Nor does it appear that the trust is "subject to the regulation of" either the Environmental Regulation Commission or the Planning Council. The Environmental Regulation Commission (E.R.C.) is authorized to set standards relating to air and water quality, noise, and solid-waste management for the Department of Environmental Regulation. Section 403.804(1), F. S. (Supp. 1980). In addition, the E.R.C. has final State approval authority on applications for and disbursements of federal grants for the construction of wastewater treatment works. Section 403.804(3), F. S. (Supp. 1980). In setting federal funding priorities, the E.R.C. has established a point system under which projects are assigned points for certain categories. Priorities among projects then are determined annually according to the number of points each project has earned. In our view, therefore, the trust is not subject to the regulation of the E.R.C., although persons or entities utilizing the land owned by the trust for wastewater treatment purposes apparently would be subject to the regulation of the E.R.C. by virtue of its standard-setting authority.

Regional planning councils have been created to act in an advisory capacity to local governments in regional, metropolitan, county, and municipal planning matters, as well as to adopt comprehensive regional policy plans. Sections 160.02 and 160.07, F. S. (Supp. 1980). In addition, the Regional Planning Council plays a role in reviewing proposed developments of regional impact under Section 380.06, F. S. (Supp. 1980). Therefore, it appears that the Planning Council does not have any regulatory authority over the trust, although it might be considered in some instances to regulate a purchaser of the property who is seeking to develop it.

Section 112.313(7)(a) also prohibits a public officer from having any contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. However, under the circumstances you have presented, we do not perceive any frequently recurring conflict between your efforts to obtain a purchaser for the property and your duties as either a member of the E.R.C. or the Planning Council. Nor does it appear that your acting as a real estate broker would impede the full and faithful discharge of those duties.

Accordingly, we find that no prohibited conflict of interest exists where you are endeavoring as a real estate broker to sell property for use by a city or county in wastewater treatment.

QUESTION 2:

Would a voting conflict of interest be created were you to vote in the establishment and approval of priorities for federal funding of wastewater treatment projects in the state if property which you are seeking to sell as a real estate broker were to be purchased or leased for wastewater treatment and the purchaser or lessee were to apply for federal funding?

Because our answer to this question depends on the exact factual circumstances at the time of your vote and because we are unable to determine exactly what those circumstances will be, we can give you only general guidance in this respect.

The Code of Ethics provides in relevant part:

Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, 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. [Section 112.3143, F. S. (1979).]

Under this provision, a public officer is not prohibited from voting on a matter in which he has a conflict of interest; however, if he does vote he is required to file a CE Form 4, Memorandum of Voting Conflict, as prescribed by this provision. As an alternative, Section 286.012, F. S., allows a public officer to abstain from voting when presented with a conflict of interest.

In our view, if your vote as a member of the E.R.C. on federal funding priorities would inure to your special private gain or to the special gain of the trust, you would be required to file a Memorandum of Voting Conflict. This would be true, for example, if the sale or lease of the property were contingent on obtaining federal funds and if your compensation as a real estate broker would be affected by that contingency.