CEO 87-1 -- January 29, 1987

CONFLICT OF INTEREST

CITY ATTORNEY SELLING REAL

PROPERTY TO CITY

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

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(3), Florida Statutes, were a city attorney, who is an officer of the city pursuant to the city charter, to sell real property to the city, unless one of the exemptions contained in Section 112.313(12), Florida Statutes, is applicable. This prohibition, however, would not preclude the city from exercising the power of eminent domain to condemn the property. CEO 76-7 and CEO 78-8 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, a city attorney, to sell a parcel of land to the city for use as a wastewater retention pond facility?

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

In your letter of inquiry you advise that you serve as the City Attorney of the City of Wildwood. You also advise that engineering and financial feasibility studies of several parcels of land indicate that a parcel which you own would be the best property for the City to purchase for use as a wastewater retention pond facility. Therefore, the City is seeking to purchase the property from you at its previously advertised selling price.

The Code of Ethics for Public Officers and Employees provides in relevant part:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1985).]

This provision prohibits a public officer or employee from acting in a private capacity to sell any realty to the political subdivision which he serves.

At the outset, we must determine whether this provision applies to you as City Attorney. In previous opinions we have advised that the standards of conduct contained in the Code of Ethics do not apply to a person whose relationship with a governmental entity is as an "independent contractor," rather than as a public officer or public employee. See, for example, CEO 77-60, CEO 77-76, CEO 78-65, CEO 81- 48, and CEO 81-60.

You have advised that you are a private, practicing attorney and realtor with many varied business interests in the area. As attorney for the City, you perform the duties enumerated in the City Charter and you are paid a retainer plus additional fees for work above the retainer amount. This compensation is set by resolution of the City Commission and is paid to you as attorney fees without withholding or additional deductions or benefits of any kind. Therefore, you state that you are an independent contractor with respect to all work done by you for the City.

We noted in CEO 81-60:

In some instances, a city attorney may be a public officer. For example, in AGO 069-3 the Attorney General advised that under Chapter 14591, Laws of Florida, 1929, as amended, the City Attorney of the City of Dade City appeared to be an officer of the City rather than an employee. This conclusion was based upon the provisions in the Special Act which provided certain duties and responsibilities of the City Attorney. The Attorney General also considered the case of State ex Rel. Holloway v. Sheats, 78 Fla. 583, 83 So. 508 (1919), in which the Florida Supreme Court stated: 'The term "office" embraces the idea of tenure, duration, and duties in exercising some portions of the sovereign power, conferred or defined by law and not by contract.' Similarly, in AGO 070-13, the Attorney General advised that based upon the Charter of the City of South Daytona, the City Attorney's position constituted an office, as opposed to mere employment.

Here, Section 4-1 of the City Charter provides:

The administrative powers of the city, not otherwise provided for in this charter, shall be vested in and exercised by the following officers and departments: . . . A city attorney . . . .

Section 4-2 of the Charter provides that the City Attorney and the City Manager shall be appointed by the City Commission. Section 4-14 provides:

The city commission shall appoint a city attorney and such assistant city attorney as may be necessary, who shall serve at the pleasure of the city commission. The city attorney shall be a lawyer admitted to, and having authority to practice in all courts of the state; he shall receive such compensation as the city commission may by resolution fix and designate.

Finally, Section 4-15 provides in eight subsections the duties of the city attorney. As it appears that you have been appointed as City Attorney in accordance with the City Charter to perform the duties enumerated in the City Charter, we find that you serve as an officer of the City. In that capacity, we find that you are governed by Section 112.313(3), Florida Statutes.

In a previous opinion CEO 76-7, we advised that this provision would prohibit the partnership of a city attorney from selling realty to the city. However, we advised that the city could seek to condemn the property if it felt that it must have that particular property. Similarly, in CEO 78-8 we advised that no prohibited conflict of interest would be created were a city to obtain a parcel of land by public condemnation proceedings where the land in question was owned by a member of the city commission.

Further, it is possible that one of the exemptions of Section 112.313(12), Florida Statutes, would be applicable here. For example, in CEO 83-76 we advised that no prohibited conflict of interest would be created were a city to purchase a parcel of property from an estate of which the mayor was the personal representative and a beneficiary, where an emergency purchase complying with the requirements of Section 112.313(12)(d), Florida Statutes, was necessary. In addition, in CEO 79-6 we advised that Section 112.313(12)(e), Florida Statutes, would be applicable where a water control district was required to purchase two water retention areas, and where of the two areas available within the district one was owned by a corporation of which a district board member was president.

In your letter of inquiry you refer to a portion of Chapter 166, Florida Statutes, the "Municipal Home Rule Powers Act," which provides:

Any other limitation of power upon any municipality contained in any municipal charter enacted or adopted prior to July 1, 1973, is hereby nullified and repealed. [Section 166.021(4), Florida Statutes (1985).]

Reference to the City Attorney in the City Charter as an officer of the City, standing alone, does not constitute a prescribed limitation of power of the City to purchase the subject real property, you state, but this reference, together with the prohibition of Section 112.313(3), might effect such a limitation. If this were the case, you argue, it would seem that Section 166.021(4), should be effective to nullify reference in the City Charter to the City Attorney as an officer to the extent necessary to permit the City Commission to proceed to purchase the property.

We are not in agreement with this interpretation, however. In our view, the quoted portion of Section 166.021(4) is directed only at municipal charter provisions and not at charter provisions when considered together with general law. See State v. City of Miami, 379 So.2d 651 (Fla. 1980), Rolle v. City of Miami, 408 So.2d 642 (Fla. 3rd DCA 1981), and AGO 83-34, for examples of charter provisions found invalid as limiting home rule powers. Further, we note that Section 166.021(4) also provides that it was the intent of the Legislature to extend to municipalities the exercise of powers for municipal purposes not expressly prohibited by general law.

Accordingly, we find that a prohibited conflict of interest would be created were you to sell real property to the City while serving as City Attorney, an officer of the City as provided in the City Charter, unless one of the exemptions contained in Section 112.313(12), Florida Statutes, is applicable. As noted above, the City would not be precluded from exercising its powers of eminent domain to condemn the property.