CEO 76-214 -- December 16, 1976

CONFLICT OF INTEREST

MEMBER OF CITY PLANNING COMMISSION TESTIFYING IN CONDEMNATION PROCEEDING

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

Prepared by: Roger Merriam

SUMMARY:

No prohibited conflict of interest exists where a member of a municipal planning commission testifies as an expert witness in his private capacity as a real estate appraiser on behalf of a landowner in an eminent domain proceeding to which the municipality is a party. A public officer is prohibited from having a contractual relationship with any business entity which is regulated by or does business with his public agency and from having such relationship which would either create a continuing or frequently recurring conflict between his public and private interests or impede the discharge of his public duties. Section 112.313(7), F. S. 1975. As the commissioner's public agency is the planning commission, rather than the city, his agency is not the landowner's adversary in the condemnation proceeding. Accordingly, it cannot be said that he has a contractual relationship with one doing business with his agency. Nor does the planning commission regulate the average landowner within the contemplation of s. 112.313(7). See CEO 76-143. As the planning commission has no responsibilities with regard to eminent domain proceedings, neither is there a recurring conflict nor one which would interfere with the discharge of the officer's public duties.

QUESTION:

Would a prohibited conflict of interest be created were I, a member of the city planning commission, to testify as an expert witness in my private capacity as a real estate appraiser on behalf of a landowner in an eminent domain proceeding to which my city is a party?

Your question is answered in the negative.

You state in your letter of inquiry that you are a professional real estate appraiser and a member of your city's planning commission. The city attorney has advised our staff that the planning commission has no responsibilities with regard to eminent domain matters.

The Code of Ethics for Public Officers and Employees provides in relevant part as follows:

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. [Section 112.313(7)(a), F. S. 1975.]

The first clause of the above-quoted statute prohibits a public officer from having a contractual relationship with any business entity which is regulated by or does business with his public agency, while the second clause prohibits him from having such relationship which would either create a continuing or frequently recurring conflict between his public and private interests or impede the discharge of his public duties.

As the term "agency" is defined by s. 112.312(2) to include any commission of a municipality, your agency is the city planning commission. It is the city rather than the planning commission, however, which is the landowner's adversary in the condemnation proceeding. Accordingly, it cannot be said that you have a contractual relationship with one doing business with your agency. Nor do we believe that the planning commission regulates the average landowner within the contemplation of subsection (7). See CEO 76-143. As the planning commission has no responsibilities with regard to eminent domain proceedings, we perceive neither a recurring conflict nor one which would interfere with the discharge of your public duties.

In summary, no prohibited conflict of interest is created where you, a member of the city planning commission, privately testify on behalf of a landowner in an eminent domain proceeding brought by the city.