CEO 75-199 -- November 5, 1975

CONFLICT OF INTEREST

PLANNING COMMISSION MEMBER SERVING AS DIRECTOR OF PLANNING FOR PRIVATE DEVELOPMENT COMPANY

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

Prepared by: Bonnie Johnson

SUMMARY:

Conflicting employment is deemed to be constituted where a member of a county planning commission is employed privately by a development company operating in the county and whose duties are to recommend and promote zoning change requests to the county in an effort to further the development of the corporation's community. Such decision is based on s. 112. 313(7), F. S., as amended by Ch. 75-208, Laws of Florida, which prohibits employment that creates "a continuing or frequently recurring conflict between [the public officer's] private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties."

QUESTION:

Does s. 112.313(7), F. S., as amended by Ch. 75- 208, Laws of Florida, pertaining to conflicting employment, prohibit an individual from serving on a county planning commission while being employed as director of corporate development for a development company engaged in extensive land development in that county?

Your question is answered in the affirmative.

Your letter of inquiry informs us that the person in question has been a member of the county planning commission since its inception and has served for the past 3 years as its only chairman. In a private capacity, he serves as Director of Corporate Development for ____ Development, Inc., a land development corporation which holds over 60,000 acres in the eastern part of the county and is engaged in developing a "new town" community with a present population of some 14,000 residents. His responsibilities with the corporation are to recommend and promote zoning change requests to the county in an effort to further the development of the corporation's community.

The ____ County Planning Commission is charged with the responsibility to recommend principles and policies for guiding land uses and development in the county. Of particular importance is the planning commission's duty to prepare and adopt a comprehensive land use plan to be presented to the board of county commissioners. In connection with the preparation and subsequent maintenance of this plan, the planning commission is empowered to conduct public hearings and undertake special studies for the purpose of gathering information related to land use. After a final comprehensive land use plan has been adopted by the board of county commissioners, it is the responsibility of the planning commission to recommend, from time to time, such changes in the plan as may be deemed necessary. Further, the board of county commissioners may assign to the planning commission additional duties as may be necessary to implement the comprehensive plan, such as the holding of public hearings and the making of recommendations to the county in such areas as zoning codes and maps, subdivision regulations, and codes for building construction and equipment. ____ County Ordinance 75-10, s. 3(c).

The recently revised standards of conduct provisions of the Code of Ethics for Public Officers and Employees defines the term "public officer" to include "any person elected or appointed to hold office in any agency including any person serving on an advisory body." Section 112.313(1), F. S., created by Ch. 75-208, Laws of Florida. As an appointed member of the ____ County Planning Commission, ____ clearly is a public officer within the above-quoted definition and therefore is subject to the standards of conduct provisions of the law.

Among these provisions is a prohibition against conflicting employment or contractual relationships which states 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 doing business with an agency of which he is an officer or employee excluding those organizations and their officers who enter into or negotiate a collective bargaining contract with any state, county, municipal, or other political subdivision of the state when acting in their official capacity; 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), supra.]

Section 112.312(11), F. S., defines "conflict" or "conflict of interest" to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." Based on the two sections quoted above, we are of the opinion that ____ situation as described above constitutes a continuing or frequently recurring conflict of interest.

As a member of the planning commission, ____ public duty is to consider impartially land use priorities in ____ County. His livelihood, however, derives from his employment by a corporation engaged in development in the county.

Additionally, his particular responsibility with the company is to promote zoning changes which would allow for further expansion of the corporation's developments. The comprehensive plan which the planning commission is charged to develop will substantially affect zoning regulations, present and future, in the county. Moreover, the planning commission is responsible for recommending subsequent changes in the adopted plan as the need arises.

In its statement of intent in enacting a Code of Ethics, the Florida Legislature declared:

It is essential to the proper conduct and operation of government that public officials be independent and impartial; that public office not be used for private gain other than remuneration provided by law . . . . [Section 112.311(1), F. S. (1974 Supp.).]

It is our view that where a member of a planning commission holds private employment which involves the promotion of a single aspect of the commission's overall consideration, such employment poses a threat to the commission member's impartiality in formulating a land use plan and would provide him with a motive for improper use of public position.

Accordingly, we find that a prohibited conflict of interest exists in ____ serving as a member of the ____ County Planning Commission while simultaneously holding his current job with ____ Development, Inc.