CEO 77-150 -- September 22, 1977

CONFLICT OF INTEREST

ASSISTANT STATE ATTORNEY SERVING ALSO AS MEMBER OF MUNICIPAL BOARD OF ADJUSTMENT

To: John H. Lipinski, Assistant City Attorney, North Miami

Prepared by: Phil Claypool

SUMMARY:

A public officer is prohibited by s. 112.313(7)(a), F. S., from holding any employment or contractual relationship with an agency subject to the regulation of or doing business with his public agency or which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties or impedes the full and faithful discharge of his public duties. Where an assistant state attorney serves as a member of a municipal board of adjustment, no conflict is deemed to be created, as the office of the state attorney is not subject to the regulation of or doing business with the board of adjustment. Nor do his responsibilities as an assistant state attorney create a conflict with his duties as a member of the municipal board of adjustment.

QUESTION:

Does a prohibited conflict of interest exist where an assistant state attorney serves as a member of a municipal board of adjustment?

Your question is answered in the negative.

In your letter of inquiry you advise that Mr. Jerry Geraldi, a resident of the City of North Miami, is a full-time assistant attorney working in the juvenile division of the Circuit Court, who has been appointed recently to the city's board of adjustment.

The board of adjustment is composed of seven members appointed by the city council. Section 29-11, North Miami Code. The board has the following powers and duties:

(1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of any of the city building or zoning regulations;

(2) To hear and decide special exceptions to the city building and zoning regulations;

(3) To authorize, upon appeal in specific cases, such variances from the city building and zoning regulations as will not be contrary to the public interests where, owing to special conditions, the literal enforcement of the city building and zoning regulations would result in unnecessary hardship; provided, however, that the granting of such variances shall not in any wise effect a change of zoning use; and

(4) To grant variances in residential lot size and in certain types of construction. [Section 29- 13, North Miami Code.]

Appeals of decisions of the board of adjustment are made to the city council, and a vote of the council is required to reverse a decision of the board. Section 29-15.2, North Miami Code.

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

As a member of the board of adjustment, the subject assistant state attorney does not have an employment or contractual relationship with the board. See CEO 77-95. As an assistant state attorney, however, he is a state employee whose agency is the Office of the State Attorney for the Eleventh Judicial Circuit. Section 112.312(2), F. S. 1975; AGO 071-293.

Clearly, the office of the state attorney is not subject to the regulation of or doing business with the board of adjustment. Nor do we perceive that the responsibilities of an assistant state attorney would create a continuing or frequently recurring conflict with the duties of a member of the board of adjustment or would impede the full and faithful discharge of those duties.

Accordingly, we find that the Code of Ethics does not prohibit an assistant state attorney from serving as a member of a municipal board of adjustment.