CEO 76-205 -- November 18, 1976

CONFLICT OF INTEREST

CITY MANAGER PURCHASING LOT FOR WHICH HE APPROVED SUBDIVISION REPLAT MAP

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

Prepared by: Phil Claypool

SUMMARY:

No disclosure is required and no prohibited conflict of interest exists where a city manager purchases a lot in a subdivision for which he previously signed the replat map. Although a city manager is prohibited by Florida Statute s. 112.313(7)(a)(1975) from contracting with a developer who is subject to regulation of the city (the city manager's agency), a ministerial matter such as approval of replat maps does not constitute regulation within the contemplation of the statute. The lot is not subject to disclosure as real property on the Statement of Financial Disclosure, as the city manager's personal residence will sit upon it. See Florida Statute s. 112.3145(3)(c)(1975).

QUESTIONS:

1. Is a city manager required to disclose his purchase of a lot within a subdivision for which he approved the subdivision replat map?

2. Would a prohibited conflict of interest be created were a city manager to purchase a lot within a subdivision for which he approved the subdivision replat map?

Question 1 is answered in the negative.

You advise in your letter of inquiry that approximately 1 year ago ____ in his official capacity as city manager, signed a subdivision replat map. He now is planning to purchase a lot within that subdivision. In a telephone conversation with our staff, the city manager confirmed these factual circumstances and also stated that his signing of plats for subdivisions within the city is a routine matter required by city ordinance, i.e., that, once the engineering department certifies that the plat is in accordance with their specifications, the city manager has no discretion to refuse to sign the plat. After the plat has been signed by the city engineer, the city manager, the chairman of the planning and zoning board, and the mayor, it is sent to the county government for its approval. The subject city manager intends to purchase a lot within the subdivision from the developer and to contract with the developer for the building of a personal residence on the lot.

The Code of Ethics for Public Officers and Employees requires four types of disclosure, none of which is appropriate in this instance. As no vote by the city manager is involved, there can be no voting conflict pursuant to Florida Statute s. 112.3143(1975); nor is this a case requiring disclosure of a specified business interest as required by s. 112.313(9)(a). As the matter does not relate to representation of a client before a public agency, the disclosure requirement contained in s. 112.3145(4) similarly is inapplicable. Florida Statute s. 112.3145(3)(c), requiring the disclosure of the location or description of certain real property in Florida, does not apply either inasmuch as that subsection exempts from disclosure one's personal residence. Accordingly, we find that the city manager is not required to disclose his purchase of a lot within a subdivision for which he approved the replat, so long as he intends to reside thereon.

Question 2 is answered in the negative.

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 . . . . [Fla. Stat. s. 112.313(7)(a)(1975).]

A city manager thus is prohibited from contracting with a developer who is subject to the regulation of the city manager's agency. In our view, however, a city manager cannot be considered to regulate a developer within the contemplation of the above-quoted provision where the city manager's approval of a subdivision plat is required by ordinance and the city manager has no discretion to refuse his approval once standards set by another agency are met.

Moreover, were the city manager to be prohibited from purchasing a lot under the circumstances, he in effect would be denied the privilege of building a home in many areas of the city by which he is employed. As this commission recognized in a previous opinion, CEO 76-75 (a copy of which is enclosed), it is not the spirit or intent of the Code of Ethics to deny a public officer or employee the opportunity to live within that employer city. Accordingly, we find no prohibited conflict of interest in the city manager's purchasing a lot within a subdivision for which he approved the replat map.