CEO 77-110 -- July 21, 1977

CONFLICT OF INTEREST

MEMBER OF SCHOOL BOARD ALSO OFFICER OF REAL ESTATE FIRM WITH EXCLUSIVE LISTING OF PROPERTY WHICH SCHOOL BOARD IS INTERESTED IN PURCHASING

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(3), F. S. 1975, prohibits a public officer from acting in a private capacity to sell any realty to the political subdivision which he serves or to any agency of that political subdivision. As a public officer has been determined to act in a private capacity when a corporation of which he is an officer acts, the above provision would be violated were a school board member to be an officer of a real estate firm with an exclusive listing on property purchased by the school board. Although the recently enacted Ch. 77-349, Laws of Florida, provides limited exemptions to the above prohibition, including a situation in which the business entity is the only source of supply within the political subdivision of the officer, this exemption is deemed inapplicable to the instant case because the particular piece of property is not the only site available for consideration by the board.

QUESTION:

Would a prohibited conflict of interest exist were the real estate firm of which I am an officer to act as real estate agent for property owners selling land to school board of which I am a member?

Your question is answered in the affirmative.

In your letter of inquiry you have stated that you are a member of the Broward County School Board and privately serve as the vice president of a real estate firm. Your firm has received an exclusive listing on a piece of property that might be of interest to the school board since the property is located in an area in which the school board has publicly declared it is seeking land. As it appears to you to be an obvious conflict of interest between your position as a member of the school board and as a broker who would participate in the commission resulting from the possible sale of the property to the school board, you are inquiring how you might eliminate this conflict.

The Code of Ethics for Public Officers and Employees provides 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 purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or 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 to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. . . . [Section 112.313(3), F. S. 1975.]

The second sentence of this provision provides that no public officer, acting in a private capacity, may sell any realty to the political subdivision which he serves as an officer or to any agency of that political subdivision. We have found in previous opinions that a public officer acts in a private capacity when a corporation of which he is an officer acts. See CEO's 75-196, 76-5, 76-12, 76-46, 76-73, and 76-115, for example. We have also found that the above-quoted provision was violated when a public officer acted as a real estate agent to represent property owners in a sale to an agency of the political subdivision of which he was an officer. See CEO 77-64.

Senate Bill 1246, passed during the most recent regular legislative session and signed into law by the Governor, provides several exemptions to the provisions of s. 112.313(3), above. One instance in which the exemption is applicable is if:

The business entity involved is the only source of supply within the political subdivision of the officer or employee, and there is full disclosure of the officer's or employee's interest in the business entity to the governing body of the political subdivision . . . . [Section 112.313(12)(e), created by s. 1, Ch. 77-349, Laws of Florida.]

However, we find that this exemption does not apply to the situation you have described because pieces of property other than that listed with your firm should be available to the school board.

Accordingly, we find that the Code of Ethics prohibits your serving as an officer of a real estate firm which acts as the real estate agent for property owners in selling land to the school board of which you are a member.