CEO 79-57 -- September 6, 1979

CONFLICT OF INTEREST

SHERIFF HOLDING ACTIVE REAL ESTATE LICENSE AND RECEIVING LISTING COMMISSIONS

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(7)(a), F. S., would prohibit a sheriff from having a contractual relationship with a business entity which is subject to the regulation of or doing business with the sheriff's office, unless one of the exemptions contained in s. 112.313(12) would apply. Reference is made to CEO's 78-93 and 78-10 for an example of a business entity which is subject to the regulation of a sheriff's office. The second part of s. 112.313(7)(a) prohibits a public officer from having a contractual relationship which will create a continuing or frequently recurring conflict or that would impede the full and faithful discharge of public duties. An example of such conflict would be a public officer's engaging in contractual relationships with his employees, which would threaten the officer's independence and impartiality in supervising that employee's work. Subject to these general restrictions, as well as the general prohibition against misuse of public office contained in s. 112.313(6), no prohibited conflict of interest would be created were a sheriff to hold an active real estate license and receive commissions from real estate listings.

QUESTION:

Would a prohibited conflict of interest be created were I, a sheriff, to hold an active real estate license and receive commissions from real estate listings?

Your question is answered in the negative, subject to certain conditions expressed below.

In your letter of inquiry you advise that you are a county sheriff. You question whether you may hold an active real estate license, advising that you do not plan to work actively in the field of real estate but that there could be times when you would obtain listings. Therefore, we are treating your question only as it would pertain to your receipt of listing commissions rather than selling commissions.

In our opinion, the Code of Ethics for Public Officers and Employees would not prohibit you from holding an active real estate license, as real estate licensing is regulated by the Florida Real Estate Commission under Ch. 475 of the Florida Statutes rather than by the sheriff's office. However, the Code of Ethics does contain provisions which would restrict your participating as a real estate agent or broker in certain transactions. Thus, s. 112.313(3), F. S., would prohibit your involvement as a listing agent in the sale of property to the sheriff's office. See CEO 77-110, in which we found that a school board member was prohibited from serving as an officer of a real estate firm which had an exclusive listing on property which the school board wished to purchase.

Section 112.313(7)(a), F. S., provides:

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. 1977.]

This provision would prohibit you from having a contractual relationship with a business entity which is doing business with the sheriff's office or which is subject to the regulation of the sheriff's office, unless one of the exemptions contained in s. 112.313(12) would apply. As an example of a business entity which is subject to the regulation of a sheriff's office, see CEO's 78-93 and 78-10, in which we advised that a pawn outlet was subject to the regulation of the Jacksonville Sheriff's Office. As you have provided no specific examples of persons or business entities from whom you might obtain a listing, we merely call your attention to these general prohibitions; if a particular question arises in the future, you may wish to seek a further opinion as to the applicability of this provision under those circumstances.

The second part of s. 112.313(7)(a), above, prohibits you from having a contractual relationship which will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of your public duties. In our view, this provision would prohibit you from obtaining a listing from any of the officers or employees of the sheriff's office. Such a relationship with one of your officers or employees, we feel, would threaten your independence and impartiality in reviewing that person's work and, further, would present the appearance that your position had been used for your private gain.

We also would call your attention to s. 112.313(6), a general prohibition against misuse of public position for private gain.

Accordingly, subject to the restrictions and guidelines expressed above, we find that no prohibited conflict of interest would be created were you to hold an active real estate license and receive commissions from real estate listings.