CEO 08-10 -- April 23, 2008

CONFLICT OF INTEREST

COUNTY PROPERTY APPRAISER PROVIDING
CONSULTING SERVICES OUTSIDE COUNTY

To: Mark Herron, Attorney for Edward A. Crapo (Alachua County)

SUMMARY:

A prohibited conflict of interest would not be created for a county property appraiser under Sections 112.313(3) or 112.313(7)(a), Florida Statutes, were he to provide private consulting services outside his county, provided that no person or entity involved with his provision of consulting services simultaneously does business with his public office or his county. Also, under the circumstances presented, a prohibited conflict was not created for the property appraiser under Sections 112.313(3), 112.313(7)(a), or 112.313(8), Florida Statutes, where he provided private consulting services outside his county. CEO 89-13 is referenced.


QUESTION 1:

Would a prohibited conflict of interest under Section 112.313(3) or Section 112.313(7)(a), Florida Statutes, be created were a county property appraiser to provide private consulting services to governmental entities and private corporations located outside his county?


Question 1 is answered in the negative, provided that no person or entity involved with his provision of consulting services simultaneously does business with his public office or his county.


By your letter of inquiry, we are advised that you request our opinion in behalf of Edward A. Crapo (Appraiser) who serves (beginning in 1981) as Alachua County Property Appraiser. In addition, we are advised that the Appraiser, through his association with several individuals (group),1 and independent of his association with the individuals, provides, on occasion, private appraisal-related consulting services to government entities and private corporations located inside and outside Florida (but not to his public agency and not to any other government agency or private corporation located in Alachua County).


Sections 112.313(3) and 112.313(7)(a), Florida Statutes, which are the provisions of the Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes) most relevant to your inquiry, provide, respectively:


DOING BUSINESS WITH ONE'S AGENCY.-No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's 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 the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she 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 or when such offices are on property wholly or partially owned by the legislator. This subsection shall not affect or be construed to prohibit contracts entered into prior to:


(a) October 1, 1975.

(b) Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment.


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 or she 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 or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties.


We find that a prohibited conflict would not be created under either statute were the Appraiser to engage in such consulting, provided that no person or entity involved with his provision of consulting simultaneously is doing business with his public Office or with the County. See CEO 89-13, in which we found that a county property appraiser could be materially interested in a business providing consulting services in other counties.2


Question 1 is answered accordingly.


QUESTION 2:

Was a prohibited conflict of interest created for the Appraiser where he provided private consulting services to governmental entities and private corporations located outside the County?


Under the circumstances presented, Question 2 is answered in the negative.


You advise further that in 1999 and 2000, the Appraiser provided consulting to the United States Virgin Islands Assessor's Office, via legally-required association with an individual (BW), and was paid by BW for the work the Appraiser performed for the Assessor's Office. Continuing, you advise that after he completed the Virgin Islands' work and after he had been paid by BW, the Appraiser (in behalf of Alachua County), in August 2000 and July 2001, respectively, entered into contracts for software and systems with two companies in which BW held interests.3


In addition, specifically you advise that in 2001, the Assessor's Office in the U.S. Virgin Islands contracted with a company [whose principal (KV) is one of the individuals associated with the group] to change the way the Office was conducting assessments, because change was ordered by a Federal court. Further, you advise, the Appraiser provided consulting services to the Assessor's Office, through KV's company, as an independent contractor, in 2001 through 2004. Also, you advise that the Appraiser is not, nor has he ever been, an employee, officer, director, or shareholder of KV's company. Continuing, you advise that in 2006 and 2007, the Appraiser contracted with KV's company, under which contract KV was a review appraiser for the Appraiser's County Office in connection with litigation dealing with a retail store chain distribution center.


As to more specifics, you advise that in May 2007, the Alachua County Commission transferred funds to acquire an oblique photography system to supplement and enhance operations of the Appraiser's Office, County Fire-Rescue, and other agencies or entities. The purchase of the system, you advise, was consummated through the Appraiser's Office, and you advise that another individual connected to the group (GD) was an independent contractor for the company vending the system to the County. However, you advise that neither GD nor the Appraiser is an officer, director, employee, or shareholder of the vendor of the system.


Under the facts presented, we find that the situation did not create a prohibited conflict under either statute.


Regarding Section 112.313(3), assuming arguendo that the group of individuals, including the Appraiser and the several natural persons with various relationships to the various business entities set forth in your inquiry, itself somehow constituted a "business entity" as defined in Section 112.312(5), Florida Statutes,4 your inquiry does not indicate that the Appraiser acted to purchase goods or services from the group for his Office or any other agency of the County, and your inquiry does not indicate that the Appraiser, acting for the group in a private capacity, sold goods or services to the County or to any agency of the County. Rather, under the situation presented, the goods or services for the County were obtained from companies in which the Appraiser held no ownership or position of company governance, and there is no indication that the Appraiser was employed by any of the companies as a salesman regarding the goods or services or that he otherwise "acted in a private capacity" for the companies to sell items to the County or to his Office.


Regarding the first part of Section 112.313(7)(a), again assuming for the sake of argument that the group is a business entity, the situation presented does not show that the group was regulated by, or was doing business with, the Appraiser's Office or the County, as would be required for the creation of a prohibited conflict. Rather, other business entities (the various companies) were and are doing business with the Office/County.


As to the second part of Section 112.313(7)(a), from the scenario presented, we do not find that the Appraiser's private consulting work, as described, created a continuing or frequently recurring conflict between his private interests and the performance of his public duties or impeded the full and faithful discharge of his public duties.5 Especially, the situation presented does not indicate that any person or entity who was involved with the Appraiser's private provision of consulting services simultaneously was contracting with the Appraiser's public Office or the County. Our lack of finding herein is in accord with our similar finding in CEO 89-13, in which we determined that a county property appraiser could be materially interested in a business providing consulting and data processing services to property appraisers in other counties and to governmental entities outside the county, provided that individuals contracting with the property appraiser's office were not also providing services in behalf of the property appraiser's private business.


Accordingly, under the circumstances presented, we find, as specified above as to Question 2, that a prohibited conflict of interest was not created for the Alachua County Property Appraiser by virtue of his provision of consulting services as set forth herein.


ORDEREDby the State of Florida Commission on Ethics meeting in public session on April 18, 2008 and RENDERED this 23rd day of April, 2008.

____________________________________

Albert P. Massey, III, Chairman

[1] The group, you advise, consists of assessment and appraisal experts who, as individuals, offer a wide range of professional services to government and industry. However, you stress that these individuals/the group are not a legal entity, that there are no agreements between individual members of the group and the group, that members are not employed by the group, and that there are no ownership interests to be had in the group. Rather, you emphasize that the group is merely several individuals who combine to work on projects, when they have the time and interest for a project, and that compensation does not flow through the group to the individuals but, rather, flows directly to individuals from third party entities which utilize individuals on specific projects.

[2]Should specific future private consulting work become available to the Appraiser, we encourage him, or you in his behalf, to contact us or our staff for further advice, if facts materially different from the facts presented herein, or materially different from the facts presented in CEO 89-13, are then present.

[3]You also advise that shortly after the Appraiser entered into the July 2001 contract, the vendor company was acquired by a Canadian company which, in 2005, declared bankruptcy; that the Appraiser sued to recover monies paid by the County, with the suit settling via transfer of intellectual property rights; that in 2006, a new contract was entered into between the Appraiser and the August 2000 contract company for completion of the project originally the responsibility of the bankrupt-related company, for the monies remaining in the original July 2001 contract; and that the Appraiser is not, nor has he ever been, an employee, officer, director, or shareholder of any of these companies.

[4] Section 112.312(5) defines "business entity" to mean

any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state.


[5] The situation presented also does not indicate any disclosure or use by the Appraiser in his private consulting of any information not available to the public and gained by reason of his official position in violation of Section 112.313(8), Florida Statutes. Rather, the situation indicates use of his personal, professional ability and expertise gained over the years. Section 112.313(8) provides:

DISCLOSURE OR USE OF CERTAIN INFORMATION.-A current or former public officer, employee of an agency, or local government attorney may not disclose or use information not available to members of the general public and gained by reason of his or her official position, except for information relating exclusively to governmental practices, for his or her personal gain or benefit or for the personal gain or benefit of any other person or business entity.