CEO 90-49 -- June 14, 1990

CONFLICT OF INTEREST

COUNTY COMMISSIONER DONATING LAND TO

COUNTY FOR ROAD RIGHT OF WAY

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

SUMMARY:

No prohibited conflict of interest would be created were a county commissioner and members of his family to donate land to the county for a road right-of-way prior to his assuming office and subsequently to grant additional land to the county in exchange for the land previously conveyed. The commissioner would not be purchasing for the County from himself or his family under Section 112.313(3), Florida Statutes, as they would receive no compensation for the land. Under the circumstances, the conveyance would constitute an adjustment to the donation previously made rather than any exchange of consideration.

QUESTION:

Would a prohibited conflict of interest be created were a county commissioner to convey land to the county for a road right-of-way and receive from the county lands he previously had conveyed for that purpose but which are no longer needed?

Your question is answered in the negative.

In your letter of inquiry, you advise that . . . . is a member of the Board of County Commissioners for Columbia County. Prior to his election to the Board, he, his mother, and his sister donated land to the County for use as a road right-of-way. No substantial improvements were ever completed on the donated property. Currently, a church located along this right-of-way has requested certain improvements to the road which will necessitate additional right-of-way acquisition by the County, but some of the previously acquired right-of-way will not be required for the project. Under these circumstances, the County proposes to reconvey the previously donated land back to the subject Commissioner and his family members and then have these persons again donate those lands necessary for the road project. As with the first donation, the Commissioner and his family members will receive no compensation or benefit from this donation, other than the usual incidental benefits of road improvements. You inquire whether this transaction would create a prohibited conflict of interest.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes.]

This section would prohibit the subject Commissioner from purchasing for the County from a business entity in which he or certain family members hold specified offices or interests. In addition, this section would prohibit the Commissioner from acting in a private capacity to sell realty to the County.

We have advised that donations by an official to his agency would not violate this provision where no compensation is received. In CEO 82-15, we advised that a county commissioner's donation of land to the county to be used in conjunction with a county-owned recreation area would not constitute a sale of realty under this Section. See also CEO 82-50, where we advised that an uncompensated donation of services by a school board member to the board would not constitute a sale of services under this Section. The rationale of these opinions indicates that a donation of land by the subject Commissioner would not be prohibited under Section 112.313(3), Florida Statutes.

However, in this case the land which the Commissioner previously conveyed also will be returned to him in exchange for the land currently needed for the road. We have advised that where the official receives something of value in exchange for the goods, realty, or services conveyed to his agency, Section 112.313(3) would be violated. The values exchanged need not be equivalent for the transaction to constitute a sale of goods. See CEO 89-52, CEO 82-43, and CEO 77-176. Therefore, if the subject Commissioner was merely exchanging portions of his property for other County owned lands, a potential violation of this provision would be created. However, under the facts presented, we must examine the circumstances under which the land to be conveyed to the Commissioner was obtained by the County. Where the Commissioner and his family previously donated these lands to the County without compensation, and subsequently are requested to alter that donation to meet the needs of the County in constructing the road, we cannot characterize this transaction as a "sale" on the basis that the Commissioner will receive some of the land he previously had donated. Rather, we find that under these circumstances the transaction described is an adjustment at the request of the County to the donation previously made by the Commissioner and his family. This result assumes that the Commissioner and his family will not receive any lands in the transaction which he did not previously donate or any other consideration, but rather only that portion of the right-of-way which he previously donated but which is no longer required by the County.

You do not indicate in your letter of inquiry if the issue of the County's accepting these lands or making the requested road improvements will come before the County Commission. Such issues would require consideration of the voting conflict provision of Section 112.3143(3), Florida Statutes. This Section would preclude the subject Commissioner from voting on any matter which would inure to his special private gain. As you represent that the Commissioner would not be receiving a benefit in exchange for the donated land, we find that he would not be faced with a voting conflict on a measure accepting this donation. However, votes regarding particular road improvements may create such a conflict if they would inure to the Commissioner's special private gain. Should you have concerns about how this provision might apply to a specific vote, please contact our office for additional guidance.

We also would call your attention to Section 112.313(6), Florida Statutes, which provides:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

Had the Commissioner requested the exchange of the donated property or used his influence to have the adjustment made, it might raise some question as to whether he was using his position to obtain a County action more beneficial to his property and interests. However, upon your representation that the road construction was requested by a church along the road and that the Commissioner will receive no benefit other than that incidental to road improvements, we do not see where this provision would apply.

Accordingly, we find that no prohibited conflict of interest would be created were the subject County Commissioner and members of his family to donate land to the County for a road right-of-way prior to his assuming office, and subsequently to grant additional land to the County in exchange for the land previously conveyed.