CEO 76-7 -- January 16, 1976

CONFLICT OF INTEREST

CITY ATTORNEY SELLING REALTY TO CITY

To: W. W. Caldwell, Jr., Fort Lauderdale City Attorney

Prepared by: Gene Rhodes

SUMMARY:

The Code of Ethics for Public Officers and Employees clearly prohibits a public officer from acting in a private capacity to sell realty to his own agency. See Fla. Stat. s. 112.313(3)(1975). In CEO 75-196 it was deemed that ownership of a material interest in a business enterprise constitutes "acting in a private capacity" where that business enters into contracts for sales or services. Therefore, where a city attorney is one-third owner of a partnership which seeks to sell realty to the employer city, s. 112.313(3) would be violated by such transaction. If the city feels that the particular property in question is uniquely suitable for its needs, an appropriate course of action, as the petitioner suggests, would be to seek an order of taking in a public condemnation proceeding.

QUESTION:

Would a prohibited conflict of interest exist were a partnership of which I am one-third owner to sell realty to a city by which I am retained as city attorney?

You have advised us that you are a partner and one-third owner of C.M.C., a general partnership, which contemplates selling -- possibly at less than market value -- real property to the city. The Code of Ethics for Public Officers and Employees states 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 for his own agency purchase, rent, or lease any realty, goods, or services from any business entity of which he, his spouse, or child is an officer, partner, director, or proprietor, or in which such officer or employee, 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 if he is serving as an officer or employee of any political subdivision, to that subdivision or to any agency thereof. 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 nor be construed to prohibit contracts entered into prior to:

(a) The effective date of this act;

(b) Qualifications for elective office;

(c) Appointment to public office;

(d) Beginning public employment.

[Emphasis supplied; Fla. Stat. s. 112.313(3)(1975).]

The emphasized portion of the above-quoted provision clearly prohibits a public officer from acting in his private capacity to sell realty to his own agency. 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. Consistent with that opinion we feel that you are also prohibited from serving as city attorney while a partnership of which you own a material interest is selling to the city.

If the city feels that it must have this particular property, an appropriate course of action, as you suggest in your inquiry, would be to seek an order of taking in a public condemnation proceeding.