CEO 78-67 -- September 29, 1978

CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST

COUNTY COMMISSIONER VOTING TO ACQUIRE PROPERTY OWNED BY REAL ESTATE SALESMAN ASSOCIATED WITH COMMISSIONER'S REAL ESTATE FIRM

To: Bill Bailey, Member, Board of County Commissioners of Palm Beach County, West Palm Beach

Prepared by: Phil Claypool

SUMMARY:

Pursuant to s. 112.313(7)(a), F. S. 1977, a county commissioner is prohibited from having a contractual relationship with a business entity which is doing business with the county commission. The term "business entity" is defined in s. 112.312(3) to include "any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust . . . doing business in this state." However, a real estate salesman does not constitute a "business entity" because he is neither a proprietorship nor a self-employed individual. Similarly, it has been held in previous opinions that a residential tenant and a private citizen contracting to renovate his personal residence do not constitute business entities. See CEO's 77-88 and 76-3 (question 2). Therefore, were a county to purchase a parcel of land belonging to an individual who is a real estate salesman associated with a county commissioner's real estate firm, the commissioner would not have a contractual relationship with a "business entity" which is doing business with his agency. Accordingly, no prohibited conflict of interest would be created by such purchase of land. Were the county commissioner to vote in favor of acquisition of the parcel, no voting conflict of interest under s. 112.3143 would be created because the vote could not inure either to his special private gain or to that of a principal by whom he is retained but, rather, to one retained by him.

QUESTIONS:

1. Would a prohibited conflict of interest be created were the county commission of which I am a member to acquire a parcel of land which is owned by a real estate salesman associated with my real estate firm?

2. Would a voting conflict of interest be created were I, a county commissioner, to vote for the county to acquire a parcel of land which is owned by a real estate salesman associated with my real estate firm?

Question 1 is answered in the negative.

In your letter of inquiry, you advise that you are a member of the Board of County Commissioners of Palm Beach County, which recently has validated $50,000,000 worth of bonds for the acquisition of beaches and parks. You also advise that the county commission appointed an advisory committee to study various properties throughout the county for the purpose of recommending properties which might be purchased with the bond moneys. One parcel of land recommended by the committee to the county commission for purchase as a park was a 320-acre parcel owned by Mr. F. E. Thomas, a licensed real estate salesman who is associated with your real estate office, although, you write, he is not an active salesman for your office. Thus, you have received no income as a result of his business efforts. You further advise that you do not have any ownership interest in the 320-acre parcel and that you will receive no financial gain in the event the property is sold to the county or to any other purchaser.

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

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 will impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), F. S. 1977.]

Thus, the question before us is whether you would have a contractual relationship with a business entity which is doing business with your agency, the county commission, if the county were to purchase the subject parcel of land.

The term "business entity" is defined in the Code of Ethics to mean

any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state. [Section 112.312(3), F. S. 1977.]

In our view, under the circumstances you have presented, you do not have a contractual relationship with a business entity. The subject real estate salesman, in his capacity as real estate salesman, does not constitute a "business entity" because he is neither a proprietorship nor a self-employed individual doing business in this state. Similarly, we have held in past opinions that a residential tenant and a private citizen contracting to renovate his personal residence do not constitute business entities. See CEO's 77-88 and 76-3 (question 2).

Therefore, were the county to purchase the subject parcel of land, you would not have a contractual relationship with a business entity which is doing business with your agency. Nor do we feel that under the circumstances of this opinion you would have a contractual relationship which would create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of your public duties because you would receive no financial gain in the event the subject property is sold to the county.

Accordingly, we find that no prohibited conflict of interest would be created under the Code of Ethics were the county commission of which you are a member to acquire a parcel of land which is owned by a real estate salesman who is associated with your real estate firm.

Question 2 is also answered in the negative.

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

Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143, F. S. 1977.]

Under the facts outlined in our response to your first question, it is clear that the county commission's decision as to whether to purchase the subject parcel of land would not inure to your special private gain because you stand to gain nothing in the event the property is sold to the county. In addition, it appears that the commission's decision to purchase the subject property would not inure to the special gain of any principal by whom you are retained, because you have not been retained as an agent by the subject real estate salesman. Instead, the reverse seems to be true.

Accordingly, we find that should you vote on the matter of acquiring the subject parcel of land, you would not be required to file a memorandum of voting conflict under the terms of the above- quoted provision.