CEO 80-16 -- February 21, 1980

CONFLICT OF INTEREST

COUNTY PROPERTY APPRAISER HOLDING ACTIVE REAL ESTATE BROKER'S LICENSE

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

Prepared by: Phil Claypool

SUMMARY:

There would be no violation of s. 112.313(7)(a), F. S., relating to conflicting employment or contractual relationship, were a county property appraiser to retain an active real estate broker's license without actively practicing in the profession except to the extent of listing his own property. The mere holding of a real estate license does not constitute a contractual relationship. See 7 Fla. Jur.2d Business and Occupations s. 24. And, even if merely holding a real estate license is "employment," it is subject to the regulation of the Florida Board of Real Estate and not to the regulation of the county property appraiser.

QUESTIONS:

1. Would a prohibited conflict of interest be created were I to serve as a county property appraiser while retaining an active real estate broker's license without actively practicing in the profession?

2. Would a prohibited conflict of interest be created were I to serve as county property appraiser while retaining an active real estate broker's license and being active in the profession only to the extent that I would list property owned by me?

Question 1 is answered in the negative.

In your letter of inquiry you advise that presently you are a registered real estate broker and that you are considering running for election to the office of county property appraiser. In a telephone conversation with our staff, you advised that, if elected, you would prefer to retain an active broker's license, rather than having your license placed in inactive status, because of the continuing educational requirements necessary to convert a broker's license back to an active status under s. 475.183(3), F. S. Even though you would retain an active license, you advised, you would close your present office, not list or sell any property, and keep no employees.

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.]

This provision prohibits a public officer from having any employment or contractual relationship with a business entity which is subject to the regulation of his agency.

However, in our view, the provision does not apply. The mere holding of a real estate license does not constitute a contractual relationship. See 7 Fla. Jur.2d Business and Occupations s. 24. And, even if merely holding an active real estate license is "employment," it is subject to the regulation of the Florida Board of Real Estate under ch. 475, F. S., and not to the regulation of the county property appraiser. See In re August D. Malfregeot, Commission on Ethics Complaint No. 78-80, in which we found no probable cause to believe that a county property appraiser violated s. 112.313(7)(a), above, by retaining an active real estate broker/salesman license, when he had not engaged in the sale or appraisal of real property.

Accordingly, we find that no prohibited conflict of interest would be created were you to serve as county property appraiser while retaining an active real estate broker's license without actively practicing in the profession.

Question 2 also is answered in the negative.

In a telephone conversation with our staff you advised that, if elected county property appraiser, you would close your present real estate office, keep no employees, and sell no property on behalf of others and would prefer to keep an active real estate license, listing only property owned by you. Thus, the only possible commission you would receive would come from the sale of your own property.

In our view, the possibility that you might receive a commission from your listing your own property does not indicate any greater potential for conflict of interest than do the circumstances presented in your first question. There would be no employment or contractual relationship with a business entity which is subject to the regulation of the property appraiser. Nor do we perceive any employment or contractual relationship which would create a continuing or frequently recurring conflict of interest or impede the full and faithful discharge of your public duties.

Accordingly, we find that no prohibited conflict of interest would be created were you to serve as county appraiser while retaining an active real estate broker's license and being active in the profession only to the extent that you would list property owned by you.