CEO 89-13 -- April 13, 1989

CONFLICT OF INTEREST

COUNTY PROPERTY APPRAISER PROVIDING

CONSULTING AND DATA PROCESSING SERVICES TO

GOVERNMENTAL ENTITIES OUTSIDE COUNTY

To: Jack M. Large, Attorney (Fort Lauderdale)

SUMMARY:

A county property appraiser can be materially interested in a business entity which provides consulting and data processing services to property appraisers in other counties and to governmental entities outside the county which employs him without violating Sections 112.313(7)(a) and 112.313(8) of the Code of Ethics for Public Officers and Employees. Section 112.313(7)(a), Florida Statutes, would be violated if a private individual who provides data processing services to the county property appraiser's office were also to provide data processing services on behalf of the private business, unless one of the exemptions in Section 112.313(12), Florida Statutes, is applicable. CEO 80-11 is referenced.

QUESTION:

Would a prohibited conflict of interest be created if a county property appraiser were to be materially interested in a business entity which provides data processing and consulting services to governmental entities outside of his county?

Your question is answered in the negative.

In your letter of inquiry you advise that William Markham serves as the Property Appraiser in Broward County. He wishes to become materially interested in a business which would provide consulting and data processing services to other county property appraisers and to governmental entities which are located outside of Broward County.

You advise that in 1988 the Florida Legislature amended Chapter 197, Florida Statutes, which concerns tax collections, sales, and liens, by changing Section 197.363 and by adding Sections 197.3631-197.3635. These statutory sections, as amended, provide a mechanism whereby a governmental entity can use the facilities of the county property appraiser's office and the county tax collector's office for the collection of special assessments and service charges. The new statutory provisions allow property appraisers to enter into written agreements with the taxing entities to provide the entities with administrative support necessary to implement the special assessments as part of the county tax roll. The county tax collector would then collect the special assessments. An option also is given to these governmental entities to require that the property appraiser provide them with a computerized version of the same information that the property appraiser supplies to the Florida Department of Revenue, and the governmental entity may then collect the taxes using any other method authorized by law. In either case, the statute requires that the governmental entity reimburse the property appraiser for the costs of supplying the information or administrative support.

The business in which the Property Appraiser proposes to engage would provide administrative personnel and data processing services to help property appraisers provide the services allowed by the new statutory provisions to other governmental taxing entities, or to directly assist the governmental entity in assessing taxes. You submit that many county property appraisers do not have enough manpower to successfully provide the services or the information required to properly assist local governments in assessing non ad valorem taxes. The Property Appraiser's business would provide data processing and administrative services at peak periods to property appraisers so that they may be in a better position to help other governmental taxing entities with the collection and enforcement of special assessments, or would provide such services directly to local governments. You ask whether he can be involved in the proposed business without violating any provision of the Code of Ethics for Public Officers and Employees.

Section 112.313(7)(a), Florida Statutes, states:

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.

Since neither the county property appraisers with whom the business proposes to contract nor the business itself is subject to the regulation of, or plans to do business with, governmental entities in the Property Appraiser's county, the first provision of Section 112.313(7)(a) would not appear to apply. Neither have we been provided with information which would indicate that his ownership or participation in the business would create a frequently recurring conflict with, or impede the performance of, his duties as Property Appraiser. See CEO 87-92 and CEO 87-87.

From the information that you have provided, it does not appear that Section 112.313(8), Florida Statutes, would prohibit the Property Appraiser from engaging in the proposed business. 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.

According to the information that you have provided our staff by telephone, the business would not involve or require the disclosure of any information of the Property Appraiser's Office which is not available to the general public. You state that confidential information in the Property Appraiser's public office primarily consists of tax records relevant to the County. These records would not be useful in providing services to governmental entities or property appraisers who are outside of the County, and therefore there is not much possibility that he could use the information contained in them for his private business. Although we have found that Section 112.313(8) may prohibit a public employee or official from using a program designed as part of his job in private consulting work, it does not appear that the Property Appraiser's business would be doing so here. See CEO 80-21, CEO 81-54, CEO 82-28, and CEO 83-87.

You also state that one of the individuals who would be involved with the business is a former employee of the Property Appraiser. Although he is no longer an employee of the Appraiser's Office, he does contract to provide data processing consulting services to the Office. This contract is on a form required for such contracts by the Florida Department of Revenue. The former employee is on the approved bidders list of the Florida Department of Revenue, you advise, authorizing him to provide data processing consulting services to property appraisers and tax collectors in the State. It is proposed that the consultant would, through the business, provide data processing consulting services to the clients of the business.

In CEO 80-11, we determined that Section 112.313(7)(a), Florida Statutes, was violated when an employee of the Department of Labor and Employment Security negotiated a contract with an individual who owned the majority of stock in a separate corporation in which the Department employee also held stock. We advised that the employee's ownership of stock constituted a contractual relationship with the majority stockholder and that this relationship would impede the employee in seeing that the Department obtained the best possible terms in its contracts.

In other opinions, CEO 82-28, CEO 84-111, and CEO 84-112, we determined that a prohibited conflict of interest under Section 112.313(7)(a) would not generally be created by a contractual relationship between a public employee and subordinate employee. These opinions differ from the situation you have described in that the individual with whom the Property Appraiser seeks to do business is not an employee, but rather provides services to the Property Appraiser under contract.

We are therefore of the opinion that CEO 80-11 is controlling and that the proposed relationship between the Property Appraiser and individuals contracting with the Property Appraiser's office would violate Section 112.313(7)(a), unless one of the exemptions under 112.313(12), Florida Statutes, applies. The Property Appraiser's private business relationship with the individual providing data processing services to the Property Appraiser's office and his concern for the welfare of the private business in which they would be engaged could impede the Property Appraiser's impartiality in ensuring that the County receives the best possible terms in its contract.

Accordingly, we find that no prohibited conflict of interest would be created if the subject Property Appraiser were to be materially interested in a business providing consulting and data processing services to property appraisers and governmental entities which are not located within the County which he serves. We do find that a prohibited conflict of interest would be created if one of the members of that business were to do work for the County Property Appraiser's Office on an individual basis, unless one of the exemptions in Section 112.313(12), Florida Statutes, applies.