CONFLICT OF INTEREST; VOTING CONFLICT

CITY PLANNING AND ZONING BOARD MEMBER PLANNER
AND LANDSCAPE ARCHITECT IN FIRM REPRESENTING CLIENTS
IN DEVELOPMENT, PERMITTING, AND SIMILAR MATTERS

To: Mr. Keith Pelan (Vero Beach)

SUMMARY:

No prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, would be created were a city planning and zoning board member or his firm to work for a client on a matter that might, in the future, come before the board. Also, a prohibited conflict would not be created under the first part of Section 112.313(7)(a) if a client of the firm who has work performed under the professional licensure of the member to apply for action by the board. In such a situation, the member would hold employment or a contractual relationship with the client, a business entity, but the client would not be subject to the regulation of the board as prohibited by the statute. However, a prohibited conflict would be created were the member's firm to work on a matter for a client after the matter becomes a matter before the board, regardless of whether the member works on the matter for the client. Also, a prohibited conflict would be created were the member, or his firm, as developers and not for clients, to apply to the board or have a matter before the board and appear before the board. CEO 10-24, CEO 08-8, CEO 96-1, CEO 94-37, CEO 93-36, CEO 88-40, CEO 87-39, CEO 81-84, CEO 81-20, CEO 78-86, and CEO 77-126 are referenced.¹

QUESTION 1:

Would a prohibited conflict of interest be created were you or your firm to work for a client on a matter that might, in the future, come before the city planning and zoning board of which you are a member?

This question is answered in the negative.²

By your letter of inquiry, we are advised that recently you were appointed to the Planning and Zoning Board (PZB) of the City of Vero Beach.³ In addition, you advise that PZB responsibilities include site plan approval for projects of a certain size, based on size criteria established in the City's land development code (with site plan approvals being final at the PZB level unless they are appealed to the City Council); authority to approve conditional use requests for various land uses and authority to grant special exception requests for reduction of parking requirements (with conditional use approvals and special exception approvals being final at the PZB level unless appealed to the City Council); and review of proposed amendments to the City's land development regulations and its comprehensive plan (with this review being advisory to the City Council). Further, you advise that within approximately the next few months, the City Council intends to charge the PZB with the duties of a board of adjustment, thereby adding general review of variance applications and other technical appeals of City Manager decisions to the PZB's duties (with such decisions of the PZB being final, unless appealed to the City Council).

Also, you advise that you are a planner and a licensed landscape architect in a multi-discipline firm which provides professional services to developers and others, including landscape architecture services, planning services, civil engineering services, land surveying services, and environmental design and permitting services. Additionally, you advise that your firm often is retained by clients to provide such services in regard to different types of particular land development projects, or in regard to representing clients in what you describe as "legislative matters," such as ordinance amendments, rezonings, and comprehensive plan amendments. Further, you advise that in most situations your firm is one of a number of different consultants that may be serving the client on a project, with the consultants other than your firm providing services such as architectural services, legal services, or other engineering services (e.g., structural or mechanical engineering services).

In addition, you advise that the typical process of a design project includes initial site investigations, preliminary design, and possible pre-application meetings with various permitting agencies, including the City. Also, you advise that your firm may provide many months of various design and permitting services for the client before any type of formal application would be submitted to the City or would reach the level of PZB consideration, that the nature of land development projects is that they are constantly changing, and that many times clients may terminate projects, for reasons of financial feasibility or permitting, prior to the projects ever reaching consideration by the PZB.

Section 112.313(7)(a), Florida Statutes,⁴ is relevant to your inquiry; it provides:

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.

Section 112.313(7)(a) has two parts. The first part prohibits a public officer (e.g., a planning and zoning board member) from having or holding employment or a contractual relationship with another public agency or with a business entity if the agency or entity is subject to the regulation of or is doing business with the officer's public agency. The second part prohibits a public officer from having or holding any employment or any contractual relationship that would create a continuing or frequently recurring conflict between the officer's private interests and the performance of the officer's public duties or that would impede the full and faithful discharge of the officer's public duties. However, in order for a prohibited conflict to exist under either part of the statute, there must be an adequate intersection of the private interests of the officer and the functions, duties, or subject matter of his public agency.

In the instant situation, we find such an intersection would not exist, and, thus, that no prohibited conflict would be created for you, were your firm merely to work for a client on a matter that might, in the future, come before the PZB. See, for example, CEO 81-84, in which we said:

As a general rule, we do not believe that every person whose private employment involves real estate sales, land development, or contracting should be prohibited from serving on a planning commission. Local communities should not be deprived of the opportunity either to appoint to their planning commissions persons with substantial knowledge or expertise in the area of land development or to appoint persons reflecting the entire spectrum of opinions regarding development. 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.

Question 1 is answered accordingly.

QUESTION 2:

When, or under what circumstances, would your firm's work for a client intersect with the functions or subject matter of the PZB such that a prohibited conflict of interest would be created for you under Section 112.313(7)(a)?

This question is answered as set forth below.

As stated earlier, the first part of the statute is triggered when a public officer holds employment or a contractual relationship with a business entity which is subject to the regulation of the officer's public agency. Thus, in order for the prohibition of the first part to apply, you personally, not just your firm or another member of your firm, must hold employment or a contractual relationship with a particular client,⁵ and the client must be "regulated"⁶ by the PZB,⁷ your "agency."

Regarding the issue of which clients of your firm you would hold employment or a contractual relationship with, we do not find that you would hold such with all clients of your firm merely because they are the firm's clients. Rather, we find your situation to be analogous to that of, for example, a licensed insurance agent. That is, we find that you would hold employment or a contractual relationship with your firm and with any client of your firm who has work performed under professional licensure personal to you. See, for example, CEO 94-37 (city councilman officer, director, stockholder, and employee of insurance agency clients of which do business with city); and see CEO 08-8 (county commissioner engineer doing business in county).⁸ Thus, we find that you would hold employment or a contractual relationship with any client of your firm who has work handled under licensure personal to you.⁹

Next, under the first part of the statute, the issue is whether, and when, a given client of your firm who has work performed under your licensure is/becomes regulated by the PZB such that the prohibition would apply.

We find that were a client of yours to apply for or receive a variance, approval, or similar action from the PZB, that such application or receipt would not trigger applicability of the first part of the statute to you. Rather, we find, under the particular situation presented in your inquiry, that it is appropriate to apply Section 112.316, Florida Statutes,¹⁰ as we did in CEO 77-126. In CEO 77-126, which presented a situation in which the functions of a city planning board included amendment of the city's master development plan, submittal of proposed changes to the city's zoning plan, approval of deviations from the plan, approval of changes of use of property, and approval of proposed construction, we relied on Section 112.316 to determine that while clients of an architect member of the board might have a need to access the functions of the board, as might other landowners in the city, that such "incidental or passive regulation" should not create a prohibited conflict for the member under the first part of Section 112.313(7)(a). Rather, we found that such situations more properly fell within the provisions of the voting conflicts law, Section 112.3143, Florida Statutes, in essence finding that what could commonly be seen as "regulation" was not the type of government activity encompassed by the statute. Thus, for purposes of the first part of Section 112.313(7)(a), we find that the functions of the PZB do not constitute regulation supportive of a prohibited conflict.

Nevertheless, the discussion above does not end our inquiry, inasmuch as Section 112.313(7)(a) contains a second part, a part embodying prohibitions not dependent on "regulation" or professional/client privity. Rather, the second part prohibits a public officer from having or holding any employment or any contractual relationship, if it logically, or in reality, would create a substantial conflict or would impede the performance of public duty. In particular, we have found the second part applicable when a public officer, or other members of his professional firm, represented clients before the officer's public board. See, for example, CEO 77-126 (member of city planning board privately representing as architect clients before the board), CEO 78-86 (board of adjustment member occasionally representing clients before board of adjustment), CEO 88-40 (city council member or partners of his law firm representing clients before city council), and CEO 96-1 (law firm of which electric authority member is "of counsel" representing clients before authority). Further, we have found that such a conflict does not evaporate, in a situation where the firm of a public officer does work for the client on the matter, merely because the firm does not go on to appear for the client before the officer's assembled public board. See CEO 10-24 (Question 1). In essence, we have found that a prohibited conflict of interest is created under the second part of the statute when a public officer's firm does work on a matter that is before his public board. Thus, in your situation, we find that a prohibited conflict would be created were your firm to work on a matter for a client after the matter becomes (through original filing, "appeal" from City staff decisionmaking, or another mechanism) a matter before the PZB, even if a firm unrelated to your firm represents the client before the PZB; but we find that no such conflict would be created were your firm to terminate its relationship with the client on the matter before the matter becomes a PZB matter. See CEO 10-24 (Questions 1 and 3).¹¹

Question 2 is answered accordingly.

QUESTION 3:

Would a prohibited conflict of interest be created under Section 112.313(7)(a) were you, outside of involvement with your firm, or your firm to seek (as a developer/owner and not for a client) to develop property in the City requiring site plan approval or other approval by the PZB?

Question 3 is answered in the affirmative, if you or a member of your firm were to appear before the PZB.

While, under the reasoning of Question 2 above, such a situation would not create a prohibited conflict of interest for you under the first part of Section 112.313(7)(a), we find that it would be conflicting under the second part of the statute, if you or a member of your firm were to appear before the PZB.¹²

Question 3 is answered accordingly.

QUESTION 4:

Will you be presented with a voting/participation conflict of interest under Sections 112.3143(3)(a) and 112.3143(4), Florida Statutes, regarding measures/matters/votes of the PZB concerning clients of your firm?

Question 4 is answered in the affirmative.¹³

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 29, 2011 and RENDERED this 3rd day of August, 2011.

____________________________________

Robert J. Sniffen, Chairman

^[1]Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us) or may be obtained directly from the Commission.