CEO 88-11 -- January 19, 1988

CONFLICT OF INTEREST

COUNTY COMMUNITY DEVELOPMENT DIVISION DIRECTOR'S

ATTORNEY AND FORMER BUSINESS ASSOCIATES AND CLIENTS

APPEARING BEFORE COUNTY COMMISSION

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

SUMMARY:

No prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, where a county community development division director is present and participates in discussions when his private attorney and former business associates and clients bring their projects before the county commission. Under the circumstances presented, he does not have an employment or contractual relationship with a business entity which is subject to the regulation of, or doing business with, his agency. Also, Section 112.313(7)(a) does not extend to past employment or contractual relationships.

QUESTION:

Does a prohibited conflict of interest exist where a county community development division director is present and participates in discussions when his private attorney and former business associates and clients bring their projects before the county commission?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry you advise that you are employed by Alachua County as the Community Development Division Director. This position involves administrative/managerial work in which you are required to assist the County Manager in directing the programs and activities within the Departments of Public Works, Planning and Development, Codes Enforcement, and Environmental Services. You are responsible for assisting in the development and implementation of program policies and procedures; directing department heads in administrative activities; evaluating existing programs and recommending revisions and/or new services; and coordinating departmental activities within the County structure. You further advise that you were the Director of the North Central Florida Regional Planning Council prior to assuming your present position. You also had your own planning consulting firm, and were involved in real estate and development activities.

At the time you accepted your present position, you made an agreement with the County Manager and the County Attorney to place your development company stock in a blind trust, sell your planning consulting business, and provide the manager with a list of your projects within Alachua County which were currently active. You agreed that you would abstain from any involvement if projects on which you had worked were considered by the County, and that the Manager would assign those items to other staff members. You also agreed that you would not enter into any new real estate broker transactions in the County. Although you have maintained your broker salesman license with a real estate firm for the purpose of receiving the commission on a contingency sale that was made three years ago, you are not involved otherwise in any real estate sales.

You question whether a prohibited conflict of interest is created if you are present and involved in the discussion of a project which is submitted to the County by one of your former clients, associates, or their attorneys. Also, you question whether a conflict is created if you are involved in any way when your personal attorney has a project before the Board of County Commissioners or their committees.

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 (1987).]

This provision prohibits a public employee from having an employment or contractual relationship with a business entity which is subject to the regulation of, or doing business with, his agency. From the facts you have presented, it does not appear that you currently have an employment or contractual relationship with a business entity which is regulated by, or doing business with, the County.

The second portion of Section 112.313(7)(a) prohibits you from having any employment or contractual relationship which would present a continuing or frequently recurring conflict of interest or which otherwise would impede the full and faithful discharge of your public duties. We are of the opinion that this provision also does not apply to these circumstances. As the prohibition does not extend to past employment or contractual relationships, it cannot be applied to situations in which your former business associates and clients bring their projects before the Board of County Commissioners. Although you have a contractual relationship with your own attorney by virtue of being his client, we are not of the view that such a relationship in itself presents you with a conflict when your attorney appears before the Board. You have advised that you worked with your personal attorney on several land use projects over the years and that some of these projects involved legal action against the County. However, such past associations currently do not present you with a conflict.

Accordingly, under the circumstances described, we find that no prohibited conflict of interest exists where you, a County Community Development Division Director, are present and participate in discussions when your attorney and former business associates and clients bring their projects before the County Commission.