CEO 79-7 -- February 22, 1979

CONFLICT OF INTEREST

CITY PLANNING BOARD MEMBER REPRESENTING CLIENTS BEFORE PLANNING DEPARTMENT AND OTHER CITY DEPARTMENTS

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

Prepared by: Phil Claypool

SUMMARY:

In CEO's 77-126 and 78-86, the Commission on Ethics advised that the representation of a client before a board of which one is a member interferes with the full and faithful discharge of one's public duties in violation of s. 112.313(7)(a), F. S. 1977, in that it jeopardizes one's independence and impartiality, gives one an undeniable advantage over other members of one's profession or occupation in such matters, and strongly presents the appearance of public office being used for private gain. These problems do not exist, however, when a public officer represents a client before boards of which he is not a member as his public duties would not stand to be compromised by such representation. Therefore, no prohibited conflict of interest is deemed to exist when a member of a municipal planning board communicates with municipal departments in conjunction with work being performed for a private client so long as such communications and representations are not to the planning board on which he sits, and so long as such representations before other municipal agencies are disclosed pursuant to s. 112.3145(4). As neither the planning director nor any of the employees of the planning department are hired by the planning board, which constitutes an "agency" distinct from the planning department pursuant to s. 112.312(2), no conflict would be created were the planning board member to communicate with employees of the planning department relative to work done for a private client.

QUESTION:

Would a prohibited conflict of interest exist were a member of a city planning board who is an architect to communicate with the city planning department, the planning director, or other city departments in conjunction with work being performed for a private client?

Your question is answered in the negative.

In your letter of inquiry you advise that ____ is an architect and serves as a member of the City of West Palm Beach Planning Board. You also advise that he was hired by a private citizen to provide land-planning and architectural services for a proposed project as well as an amendment to the land-use plan of the city. In addition, you advise that it is necessary for the applications for rezoning and for amendment of the land-use plan to be presented to the planning board for its approval before being submitted to the city commission for its consideration and final action. You advise that neither the subject planning board member nor any member of his firm will represent their client before the planning board; nor will they attempt to communicate with any member of the board concerning this project. The subject board member will not vote on the proposal when it is presented to the board and will not participate in the discussion of the matter before the board.

However, you advise that in order to properly represent his client, it is necessary for the subject board member to communicate with the city planning department and the planning director as part of the application process to explain the project as well as to seek departmental input and guidance where applicable. In addition, in conjunction with the project, it is necessary for him to communicate with other city departments.

In a telephone conversation with our staff, you advised that members of the planning board are appointed by the city commission, that the planning director is appointed by the city manager, and that employees of the planning department are hired by the planning director. Under the city charter, the planning department and its head, the planning director, function in an advisory capacity to the planning board and the city commission in matters relating to zoning regulations and the comprehensive plan for the physical development of the city. Article IX, Section 9.01-9.04, West Palm Beach City Charter. In addition, the planning director acts as a secretary to the planning board, but has no vote on the board.

In previous opinions, we have advised that the representation of a client before a board of which one is a member interferes with the full and faithful discharge of one's public duties in violation of s. 112.313(7)(a), F. S. 1977. Commission on Ethics Opinions 77-126 and 78-86. In our view, the representation of a client before one's board jeopardizes one's independence and impartiality, gives one an undeniable advantage over other members of one's profession or occupation in such matters, and strongly presents the appearance of public office being used for private gain.

These problems do not exist when one represents a client before boards of which one is not a member. Section 112.316, F. S., mandates that the Code of Ethics for Public Officers and Employees not be construed to prevent any officer or employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge of his public duties. Were the subject planning board member to represent his client before other city boards, his public duties as a member of the planning board would not be involved. Therefore, there would be no possibility of a conflict of interest, a situation in which regard for his private interests would tend to lead to disregard of his public duties. Section 112.312(6), F. S. 1977.

The policy of the Code of Ethics is to require disclosure of representations rather than to prohibit them. See s. 112.3145(4), F. S. 1977, which requires each local officer to file a quarterly report of the names of clients represented for a fee or commission before agencies at his level of government. Commission on Ethics Form 2 has been promulgated by this commission for use in making the quarterly client disclosure.

Nor do we feel that the Code of Ethics would prohibit the subject planning board member from communicating with the city planning director and employees of the planning department on behalf of his client. Neither the planning director nor any of the employees of the planning department are hired by the planning board, which constitutes an "agency" distinct from the planning department. Section 112.312(2), F. S. 1977. Under these circumstances, there is no apparent interference with the full and faithful discharge of the subject board member's public responsibilities. Here again, the policy of the Code of Ethics is to require disclosure of such representations under s. 112.3145(4). See s. 112.312(15), F. S., defining "representation."

Accordingly, we find that no prohibited conflict of interest would exist were a member of a city planning board who is an architect to represent a private client before other city boards or before the city planning director and planning department.