CEO 93-30 -- October 14, 1993

CONFLICT OF INTEREST; VOTING CONFLICT

COUNTY COMMISSIONER CONTRACTING WITH PROFESSIONAL

ENGINEERING FIRM TO COORDINATE DEVELOPMENT

OF HIS PROPERTY

To: Mark Herron, Attorney (Tallahassee)

SUMMARY:

No prohibited conflict of interest is created by a county commissioner's contracting with a professional engineering firm to coordinate development of his property and to be responsible for all contacts with the county's engineering department regarding compliance with the county's development regulations. Because the engineering firm is not doing business with the county commission and because civil engineers are not regulated by the board of county commissioners, the commissioner would not be contracting with a business entity which is either doing business with or subject to the regulation of his agency. In addition, under the circumstances, neither a continuing or frequently recurring conflict of interest nor an impediment to the full and faithful discharge of the commissioner's public duties would be created.

Because the county commissioner will abstain from voting on any measure that might come before the board of county commissioners relative to the development of his property, no voting conflict of interest under Section 112.3143(3)(a), Florida Statutes, will be created by his voting on any other measure in which the engineering firm is involved, where the firm is neither the commissioner's principal nor his business associate. There is no indication that the commissioner would be affected in any way by any other measure (not having to do with the development of his property) in which the engineering firm is involved. However, the commissioner would have the option of abstaining under such circumstances, should he choose to do so, as provided in Section 286.012, Florida Statutes.

QUESTION 1:

Would a prohibited conflict of interest be created were a county commissioner to contract with a professional engineering firm to coordinate the residential development of his property and to be responsible for all contacts with the county's engineering department regarding compliance with the county's development regulations?

Your question is answered in the negative.

In your letter of inquiry, you advise that you seek this opinion on behalf of Charles Owen, a member of the Board of County Commissioners of Osceola County, who wishes to know what his standard of public duty is. You advise that the Commissioner and his wife jointly own property in Osceola County which is being developed for residential purposes. You write that they have contracted with a professional engineering firm to coordinate actual development activities and to be responsible for all contacts with the County's engineering department regarding compliance with the County's development regulations. You advise further that, with respect to the development of his property, the Commissioner will neither have any contact with employees of the County's engineering department nor vote on any matter that may come before the Board of County Commissioners.

You advise that the County's engineering department is not subject to the direct control of the Board of County Commissioners; rather, it is subject to the control of the County Manager and the County Engineer. The chain of command for the engineering department flows from the County Manager through the County Engineer to the employees of the department.

You also advise that neither the Commissioner nor his wife are employed by the engineering firm or by any other company connected with the development of the property and that the engineering firm is not doing business with the County Commission. It is not anticipated that issues related to the development, which consists of 14 lots and is not a development of regional impact (DRI), will come before the County Commission, you advise.

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), Florida Statutes.]

This section would prohibit the County Commissioner from holding a contractual relationship with the professional engineering firm if it were doing business with the County Commission, if it were subject to the regulation of the County Commission, or if the contractual relationship would create a continuing or frequently recurring conflict between his private interests and performance of his duties as a County Commissioner or impede the full and faithful discharge of those duties.

While we previously have found that an engineering firm may be regulated by the building or engineering department of a city or county through the review, approval, and permitting of plats and plans (see CEO 76-2A, CEO 76-113, and CEO 82-65), we have not found that a county or city commission regulates business entities involved in construction and development. Although we found that a city commissioner's employment as development coordinator with a developer in the city would present a frequently recurring conflict between his private interests and the performance of his public duties, in In re John Zerwick, Complaint No. 79-74, 2 F.A.L.R. 1097-A (1980), affirmed, Zerwick v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982), we also found that a city commission did not "regulate" developers within the meaning of this prohibition, as the active enforcement of ordinances specifying the manner and mode of land development and building construction within the city had been delegated to the various boards and departments of the City. We noted that if general controls and restrictions constitute regulation, no commissioner could work or reside in the city. Therefore, inasmuch as civil engineers are regulated by the Department of Professional Regulation and the State Board of Professional Engineers pursuant to Chapter 471, Florida Statutes, and not by the County Commission, and inasmuch as you have not indicated that the engineering firm is doing business with the County Commission, no violation of the first part of Section 112.313(7)(a) is created by the County Commissioner's contracting with the engineering firm.

With respect to the second part of Section 112.313(7)(a), which prohibits the County Commissioner from having a contractual relationship which would create a continuing or frequently recurring conflict of interest or which would impede the full and faithful discharge of his public duties, we find, under the circumstances presented, that no violation is created by the County Commissioner's contracting with the engineering firm.

In CEO 81-84 and CEO 83-27, we stated that as a general rule not every person whose private employment revolves around real estate sales, land development, or contracting is prohibited from serving on a planning commission. We advised: "It is only in situations where the member's private interests are substantial and would be substantially affected by the commission's work, that he should not be permitted to serve on the planning commission." We believe that the same holds true for membership on a county commission. Under the circumstances that you have presented, where the active enforcement of building and development restrictions has been delegated to the County's engineering department rather than residing in the County Commission, where the professional engineering firm is responsible for all contacts with the County's engineering department regarding compliance with the County's development regulations and the Commissioner has no contact with the employees of the County's engineering department with respect to the development, where he will not be representing himself before the Commission should a matter concerning the development of his property come before the Commission, and where issues relating to the development will come before the County Commission only infrequently, if at all, and there are not a series of approvals that will have to be made by the County Commission regarding the development, we find that the Commissioner's interests would not be so substantially affected by the County Commission's public duties as to create a continuing or frequently recurring conflict of interest or impediment to the full and faithful discharge of his public duties.

Accordingly, under the circumstances presented, we find that no prohibited conflict of interest is created by the Commissioner's contracting with the engineering firm to coordinate development of his property.

QUESTION 2:

Would a voting conflict of interest be created where the county commissioner abstains from voting on any matter relating to the development of his property but votes on other matters involving the engineering firm with which he has a contractual relationship?

Your question is answered in the negative.

The Code of Ethics also 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; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain of a relative or business associate of the public officer. 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. [Section 112.3143(3)(a), Florida Statutes.]

This provision prohibits the County Commissioner from voting upon any measure which would inure to his special private gain or which he knows would inure to the private gain of a business associate or any principal by whom he is retained. It also requires a local public official who is faced with such a prohibited voting conflict to publicly state the nature of his interest in the matter prior to the vote being taken from which he will be abstaining and, within 15 days of the vote, file a memorandum of voting conflict (CE Form 8B) to be incorporated in the minutes of the meeting. Because you have indicated that the Commissioner will not vote on any matter coming before the Board of County Commissioners with respect to the development, we find that when the appropriate disclosures are made the Commissioner will be in compliance with Section 112.3143(3)(a) as it relates to the development of his property.

With respect to other matters that may come before the Board of County Commissioners for a vote in which the engineering firm may be involved, we previously have advised (see CEO 91-48 and CEO 92-1) that whether a measure inures to the special gain of an official turns on the nature of the measure being considered by the official's board and that measure's relationship to the official's interests, rather than on the identity of the party before the board and the party's relationship to the official. The engineering firm is not a principal by which the Commissioner is retained; nor does it appear to be a business associate of the Commissioner and his wife, as the Commissioner and his wife have retained the firm. See Section 112.312(4), Florida Statutes, defining "business associate." Thus, inasmuch as we have no indication that the Commissioner would be affected in any way by any other measure (not having to do with the development of his property) in which the engineering firm is involved, we are of the opinion that the Commissioner would not be required to abstain from voting on such a measure. However, to avoid even the appearance of impropriety, the Commissioner might want to abstain from votes involving the engineering firm, as would be permitted under Section 286.012, Florida Statutes. This section authorizes a public officer to abstain from voting where there is or appears to be a conflict of interest under one of the provisions of the Code of Ethics.

Accordingly, because you have advised that the Commissioner will abstain from voting on any measure that might come before the Board of County Commissioners relative to the development of his property and because the engineering firm is not the Commissioner's principal or business associate, we are of the opinion that no voting conflict of interest under Section 112.3143(3)(a), Florida Statutes, will be created by the Commissioner's voting on any other matter involving the engineering firm with which he has a contractual relationship.