CEO 76-38 -- February 13, 1976

CONFLICT OF INTEREST

COUNTY PROPERTY APPRAISER RENTING PROPERTY TO BE USED AS VOTING PRECINCT

To: Donald E. Stephens, Lake County Property Appraiser, Tavares

Prepared by: Bonnie Johnson

SUMMARY:

Florida Statutes s. 112.313(3)(1975) prohibits an officer in a political subdivision from acting in a private capacity to rent property to his own agency or to any agency within his political subdivision. Florida Statutes s. 112.316, however, provides that no provision of the Code of Ethics shall be construed to prevent any officer from following a private pursuit which does not interfere with the full and faithful discharge of his public duties. Reading these two provisions in conjunction, no conflict is deemed to exist where a county property appraiser who is one-third owner of a building leases such building to the county supervisor of elections for use as a voting precinct. The property appraiser has no input into policymaking decisions of the elections supervisor and makes no recommendations as to purchasing or rental arrangements of that office. Moreover, specifications for buildings to be used as precincts are restrictive, and such leases would occur infrequently and for short duration.

QUESTION:

Does a prohibited conflict of interest exist where I, a county property appraiser, am a one-third owner of a building which is rented to the county supervisor of elections for use as a voting precinct?

Your question is answered in the negative.

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 or 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 . . . [Fla. Stat. s. 112.313(3)(1975).]

As an elected county property appraiser, you are clearly a public officer pursuant to Fla. Stat. s. 112.313(1)(1975). As owner of a one-third interest in the subject property, you hold a material interest in that property pursuant to the definition of "material interest" as found in Fla. Stat. s. 112.312(10)(1975).

In a previous opinion of this commission, CEO 75-196, we advised that ownership of a material interest in a business enterprise constitutes acting in one's private capacity for purposes of the above-quoted provision. The emphasized portion of s. 112.313(3) clearly prohibits an officer of a political subdivision from renting realty to agencies of that subdivision. Accordingly, you are prohibited from renting realty to your own agency, and it would appear that you also are prohibited from renting realty to other agencies of the county. However, in construing the provisions of the Code of Ethics as they apply to private business pursuits by public officials, we must give due consideration to that provision of the code which states:

CONSTRUCTION. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Fla. Stat. s. 112.316(1975).]

The above-quoted provision makes it clear that the Code of Ethics shall not be construed to prohibit a public officer or employee from following a private pursuit which does not interfere with the full and faithful discharge of his duties. Each standard of conduct provision must be read with this qualification in mind.

The temporary and irregular rental of your property for use as a voting precinct would not, in our view, interfere with the discharge of your public duties inasmuch as you have no input into policymaking decisions of the office of the supervisor of elections and make no recommendations as to purchasing or rental arrangements made by that office. Our decision is based further on the acknowledgment that specifications for buildings which serve as precincts are, of necessity, restricted by space and location requirements and such buildings are used for this purpose infrequently. Accordingly, we find no prohibited conflict in the situation described herein.