CEO 76-173 -- September 13, 1976

CONFLICT OF INTEREST

COUNTY ATTORNEY'S FIRM REPRESENTING THE PLANNING AND ZONING COMMISSION AND A COMPANY APPLYING FOR ZONING CHANGES

To: Glen C. Burhans, Lake County Commissioner, Umatilla

Prepared by: Gene Rhodes

SUMMARY:

The Code of Ethics prohibits a public officer from having a contractual relationship with a business entity that is subject to the regulation of his public agency or that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties. Fla. Stat. s. 112.313(7)(a)(1975). It is not within the contemplation of this prohibition, however, that a planning and zoning commission "regulates" a business entity that only occasionally seeks zoning changes that are purely incidental to its operations, and where its operations do not depend on its expertise in acquiring zoning changes. Accordingly, no conflict is deemed to exist under the Code of Ethics where a county attorney and assistant county attorney are members of a law firm which represents a business seeking zoning changes, so long as neither personally handles such representation before the planning and zoning commission. The Commission on Ethics has no jurisdiction to advise whether such representation constitutes a breach of the Code of Professional Responsibility of The Florida Bar, however.

QUESTIONS:

1. Does a prohibited conflict of interest exist where the law firm with which the attorney for the county planning and zoning commission is affiliated represents a company seeking zoning changes?

2. Does a prohibited conflict of interest exist where the law firm with which the county attorney is affiliated represents a company seeking zoning changes?

Question 1 is answered in the negative.

You advise us in your letter of inquiry that a member of the county attorney's law firm serves as assistant county attorney and represents the county planning and zoning commission. Said law firm also represents a company which may locate in your county, provided it can find a desirable location and obtain the necessary zoning changes. The minutes from the planning and zoning commission meeting on April 28, 1976, indicate that that body's attorney advised the commission that his firm represented the subject company, but not in zoning matters or any other matters pertaining to the county.

The Code of Ethics for Public Officers and Employees provides 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 is doing business with, an agency of which he 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties . . . . [Fla. Stat. s. 112.313(7)(a)(1975).]

This provision prohibits a public officer or employee from having a contractual relationship with a business entity that is subject to the regulation of his public agency or that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties. Your county attorney has advised our staff that the company whose representation resulted in this question is not in the business of seeking zoning changes on a continuing or frequent basis, as it is attempting only to acquire one tract of land on which it will locate. In our view, a planning and zoning commission does not regulate a business entity that only occasionally seeks zoning changes that are purely incidental to its operations, and where its operations do not depend on its expertise in acquiring zoning changes. Additionally, the situation you describe does not create a continuing or frequently recurring conflict as the subject company will not be seeking further zoning changes on a frequent basis. Accordingly, we find that no prohibited conflict exists where the law firm with which the planning and zoning commission's attorney is affiliated represents a company in matters not related to zoning, where that company would be seeking occasional zoning changes that are purely incidental to its operations and where its operations are not based upon its ability to procure zoning changes.

Question 2 is answered in the negative.

The facts here are the same as those described in question 1 above. We reach the question because the county commission finally approves all zoning changes.

The minutes from the May 18, 1976, county commission meeting reflect that the county attorney advised the commission that he represents the subject company in general matters but did not represent the company in the rezoning issue which was to be taken up by the county commission. Also, the county attorney has assured our staff that he will not represent the company in any matter pertaining to the county.

You supplemented your letter of inquiry with the minutes of the June 8, 1976, meeting of the county commission. These minutes reflect that the county attorney advised the county commission to retain another attorney to represent the county in all matters relating to the subject company. The commission accepted this advice and voted to hire another attorney to represent them in matters involving the subject company.

Section 112.313(7), quoted in question 1 above, also applies here, as that provision prohibits a public officer from having a contractual relationship with a business entity regulated by his public agency. Although the county commission does exercise the authority to finally approve all zoning changes, we do not consider the commission to "regulate," within the contemplation of subsection (7), persons or business entities seeking occasional zoning variances. Thus, the rationale contained in the response to question 1 applies equally to the question before us, and no prohibited conflict is found to exist under the Code of Ethics.

We wish to emphasize, however, that we have no jurisdiction to advise you on whether either of the above situations constitutes a breach of the Code of Professional Responsibility. That question properly lies with The Florida Bar.