CONFLICT OF INTEREST

LAND USE AND REAL ESTATE DEVELOPMENT ATTORNEYS
APPOINTED TO CITY ADVISORY BOARD

To: Name withheld at person's request (Miami)

SUMMARY:

Under the circumstances presented, appointed members of the Miami 21 Ad Hoc Task Force would be public officers subject to Section 112.313, Florida Statutes. Assuming that the members of the Task Force who worked in a private capacity as land use or real estate development attorneys did encounter a conflict of interest under Section 112.313(7)(a), Florida Statutes, it appears that Section 112.313(7)(b), Florida Statutes, would operate to negate conflicts derived from their professional work for those attorneys occupying seats on the Task Force specifically reserved for land use and real estate development attorneys. Section 112.313(12), Florida Statutes, can also be applied to any and all members of the Task Force, if certain steps are taken to waive the disclosed conflicts. Also, Task Force membership does not make one a "local officer" subject to filing financial disclosure. CEO 77-178, CEO 04-1, CEO 04-17, CEO 10-14, CEO 10-24, CEO 18-11, CEO 19-17, 19-19, and CEO 20-2 are referenced.

QUESTION 1:

Are the appointed members of the Miami 21 Ad Hoc Task Force public officers subject to the prohibitions in Section 112.313, Florida Statutes?

This question is answered in the affirmative.

According to your inquiry, the City of Miami has a zoning ordinance colloquially known as "Miami 21." The City seeks to perform a comprehensive review of Miami 21. On January 23, 2020, the City Commission passed a resolution to create the 12-member "Miami 21 Ad Hoc Task Force" ("Task Force"). The purpose of the Task Force is to make written recommendations to the City Commission, the Mayor, and the City Manager on changes to the ordinance and measures to be taken regarding Miami 21. The Mayor and the City Commissioners may each, individually, nominate two members of the Task Force who must then be approved by a vote of the full City Commission.

The resolution creating the Task Force specifies that six of the Task Force members will be assigned to seats for which preference shall be given to those with experience in economics, financial operations, lending, resiliency and sustainability, transportation planning, or civil engineering. Two seats on the Task Force will be reserved for those with "experience in real estate development, preferably in affordable housing, large or small scale development, or mixed use development." One seat will be reserved for someone with "experience in resiliency and sustainability" and another seat will be reserved for "a certified architect, a certified engineer, or a certified neighborhood planner." This inquiry concerns the final two seats, which will be reserved for those with "experience in the practice of land use law and/or real estate development law." The inquiry does not specify whether any members have been appointed to the Task Force and it does not specify what, if any, contractual relationships these individuals or their firms may have.

We find that the members of the Tasks Force, once they are appointed, will be public officers, as defined in Section 112.313(1), Florida Statutes. They will occupy offices created by a mechanism of law (a resolution of the City Commission) to perform a function of the City government (reviewing ordinances and proposing government action) in positions that can only be assumed by appointment by the City Commission. See CEO 20-02, Question 1. Because they will be public officers, the members of the Task Force will be subject to the prohibitions found at Section 112.313(7)(a), Florida Statutes, among others.

QUESTION 2:

Would a prohibited conflict of interest be created if several land use and real estate development attorneys were appointed to the Task Force?

While, under the particular circumstances presented, we are unable to answer this question definitively, we offer the guidance below.

Section 112.313(7)(a), Florida Statutes, provides:

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.

The first clause of this statute would prohibit a public officer from having any contractual relationship with an entity that does business with or is regulated by his or her agency. The second clause of this statute would prohibit a public officer from having a contractual relationship that would create a continuing or frequently recurring conflict of interest or would create an impediment to the full and faithful discharge of his or her public duties.

As there are no particular appointees to the Task Force yet, and the contractual relationships of these individuals are unknown, the existence of any conflicts of interest is hypothetical. We do not typically provide guidance in response to entirely hypothetical inquiries where the facts giving rise to the potential ethical issue are not provided with particularity in the inquiry. See CEO 04-17, Question 4; CEO 10-14, note 1; but see CEO 19-17 (advising on various hypothetical scenarios where all the relevant facts giving rise to the potential ethics violations were stated with particularity in the inquiry). The finding of a conflict of interest is a fact-specific analysis, and, while it is not possible to detail all the hypothetical scenarios that might create a conflict of interest for a land use or real estate development attorney on the Task Force, it is easy to imagine some scenarios where one might be created.¹ Thus, we will assume for purposes of answering your remaining questions that a conflict of interest under Section 112.313(7)(a) is possible for particular appointees to the Task Force, unless an exemption can be applied.

QUESTION 3:

If a particular member of the Task Force has a conflict of interest under Section 112.313(7)(a) as a result of their private work as a land use or real estate development attorney, would any exemption be available?

Your question is answered as follows.

If a particular member of the Task Force does incur a conflict of interest under Section 112.313(7)(a) as a result of their private work as a land use or real estate development attorney, Section 112.313(7)(b), Florida Statutes, may apply to exempt the Task Force member. Section 112.313(7)(b) states, "This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance."

Section 112.313(7)(b) effects a "waiver" of a conflict of interest "by recognizing that certain credentials are so vital to the expertise and operation of a public board that the otherwise conflicting business/client connections of certain members must yield to the public purpose of a portion of the board's membership possessing such professional training and practice." See CEO 04-1 and CEO 19-19.

The City Commission reserved two of the Task Force seats for those with "experience in the practice of land use law and/or real estate development law." We note that this reference in the ordinance refers to a particular profession or occupation, as the practice of law is reserved for licensed attorneys. See R. Regulating Fla. Bar, Chapter 10; Article V, Section 15, Florida Constitution. Thus, attorneys practicing land use law or real estate development law who are appointed to those two reserved seats will benefit from the exemption in Section 112.313(7)(b) as it pertains to conflicts they may derive from their private work as land use or real estate development attorneys. With regard to land use attorneys or real estate development attorneys who might sit in the other ten seats on the Task Force, Section 112.313(7)(b) will offer no relief from conflicts occasioned by their professional service. CEO 04-1.

There is another exemption, contained in Section 112.313(12), Florida Statutes, that may be utilized to afford members on the Task Force shelter from conflict under Section 112.313(7)(a). Section 112.313(12) provides, in the relevant part:

EXEMPTION.—The requirements of subsections (3) and (7) as they pertain to persons serving on advisory boards may be waived in a particular instance by the body which appointed the person to the advisory board, upon a full disclosure of the transaction or relationship to the appointing body prior to the waiver and an affirmative vote in favor of waiver by two-thirds vote of that body. In instances in which appointment to the advisory board is made by an individual, waiver may be effected, after public hearing, by a determination by the appointing person and full disclosure of the transaction or relationship by the appointee to the appointing person.

This provision allows an appointing body to vote to waive a particular conflict of interest of a member of an advisory board upon full disclosure by the member of the specific conflict on CE Form 4A, "Disclosure of Business Transaction, Relationship or Interest," prior to the waiver and upon a two-thirds affirmative vote by the appointing board.

We have found in the past that the Legislature intended to apply the exemption in Section 112.313(12) to any advisory board. See CEO 77-178; CEO 10-24.

We find that the Task Force is an advisory board because its duties as described by its originating resolution do not include the final determination or adjudication of any personal or property rights, duties, or obligations. Its duties solely are to make recommendations in a report for the benefit of the City Commission, the Mayor, and the City Manager. Thus, if the members of the Task Force who may have conflicts disclose those conflicts on CE Form 4A to the City Commission and if the City Commission then votes by a two-thirds vote to waive the specific conflict, then the conflict of interest will be waived.

QUESTION 4:

Are members of the Task Force subject to the financial disclosure requirements of Section 112.3145, Florida Statutes?

Your question is answered in negative.

Every "local officer" is required to file CE Form 1, Statement of Financial Interests. Section 112.3145(2)(b), Florida Statutes. Among the list of those included in the definition of "local officer," Section 112.3145(1)(a)2., Florida Statutes, includes:

Any appointed member of any of the following boards, councils, commissions, authorities, or other bodies of any county, municipality, school district, independent special district, or other political subdivision of the state:

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d. A planning or zoning board, board of adjustment, board of appeals, community redevelopment agency board, or other board having the power to recommend, create, or modify land planning or zoning within the political subdivision, except for citizen advisory committees, technical coordinating committees, and such other groups who only have the power to make recommendations to planning or zoning board….

We find that members of the Task Force will not be subject to the financial disclosure requirement of Section 112.3145, Florida Statutes. As we have opined in the past, a member of a board that is listed in the inclusive, opening clause of Section 112.3145(1)(a)2.d., Florida Statutes, will also be subject to the exception in the last clause of the sentence, and not subject to the financial disclosure requirement, "when the board's only planning or zoning power is of an advisory nature." See CEO 18-11. Because the Task Force's only power is to make written recommendations on changes to the Miami 21 zoning ordinance, its members will not be subject to the financial disclosure requirement.

Your questions are answered accordingly.²

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 24, 2020, and RENDERED this 29th day of July, 2020.

____________________________________

Daniel Brady, Chair

^[1]If, in the future, you have specific facts you would like to address with the Commission, please contact Commission staff at (850) 488-7864.

^[2]We also bring to your attention the requirements of the voting conflicts law applicable to local, appointed officials found at Sections 112.3143(3)(a) and (4), Florida Statutes. The members of the Task Force must comply with these requirements for any vote of the Task Force that would inure to the member's own special private gain or loss or that of his or her firm, clients of his or her firm, in addition to those other persons or entities listed in the statute. Compliance with the voting conflicts law in that instance would include utilizing CE Form 8B, "Memorandum of Voting Conflict for County, Municipal, and Other Local Public Officers."