CEO 80-33 -- May 21, 1980

CONFLICT OF INTEREST

MEMBERS OF COUNTY LAND-USE ADVISORY BOARD ENTERING INTO CONTRACTS WITH COUNTY

To: Charles F. Schoech, Assistant Palm Beach County Attorney, West Palm Beach

Prepared by: Phil Claypool

SUMMARY:

Under s. 112.313(7), F. S., an officer of a county agency is prohibited from serving as president of a business entity which is selling any services to his agency or to any other agency of the county. It therefore would appear that a member of a county land- use advisory board would be prohibited from serving as president of an architectural firm providing services to the county. However, s. 112.316 of the Code of Ethics makes it clear that the Code of Ethics shall not be construed to prohibit a public officer from following any pursuit which does not interfere with the full and faithful discharge of his public duties. As the duties of the land-use advisory board do not involve the approval or the giving of recommendations relating to the purchase of architectural services by the county, the contract between the subject board member and the county is not deemed to interfere with the full and faithful discharge of his duties as a member of that board and therefore does not constitute a conflict of interest. This same rationale leads to the conclusion that no prohibited conflict of interest exists when another member of the county land-use advisory board is the president of a development corporation which has entered into development contracts with the county for the construction of required improvements for the development and subdivision of real estate.

QUESTIONS:

1. Does a prohibited conflict of interest exist when a member of a county land-use advisory board is the president of an architectural firm which has contracted to perform work for the county?

2. Does a prohibited conflict of interest exist when a member of a land-use advisory board is the president of a development corporation which has entered into development contracts with the county for the construction of required improvements for the development and subdivision of real estate?

Question 1 is answered in the negative.

In your letter of inquiry you advise that the Palm Beach County Land-Use Advisory Board provides the county planning division staff, the county administrator, and the county commission with recommendations and advice on policies for the preparation of the comprehensive plan required by the Local Government Comprehensive Planning Act of 1975. You further advise that Mrs. Emily V. Obst is the president of an architectural firm which has entered into contracts with the county for the architectural work on two community centers pursuant to the Consultants Competitive Negotiations Act.

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

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), F. S.]

This provision would prohibit an officer of a county agency from serving as president of a business entity which is selling any services to his or her agency, as well as to any other agency of the county. The agency of the subject land-use advisory board member is that board. See s. 112.312(2), F. S., defining the term "agency." Therefore, it appears that the subject board member would be prohibited from serving as president of an architectural firm providing services to the county.

However, each provision of the Code of Ethics must be read in light of another section which states:

Construction. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, F. S.]

This section makes it clear that the Code of Ethics shall not be construed to prohibit a public officer from following any pursuit which does not interfere with the full and faithful discharge of his or her duties. Each standard of conduct must be read with this qualification in mind. As the duties of the land-use advisory board do not involve the approval of or the giving of recommendations as to the purchase of architectural services by the county, it is our view that the architectural contract between the subject board member and the county would not interfere with the full and faithful discharge of her public duties as a member of that board. See CEO's 78-66 and 76-134, wherein we advised that members of city planning and zoning commissions could sell to their cities goods and services unrelated to the commissions' responsibilities.

In addition, we observe that, even if we were to find that s. 112.313(3) prohibited the subject board member from selling architectural services to a county, the Code of Ethics contains a waiver provision which would allow the governing board of the county to waive the conflict of interest. Section 112.313(12) allows the waiver of certain conflicts of interest on the part of members of advisory boards by the body which appointed the person to the board upon full disclosure of the transaction or relationship and an affirmative vote in favor of waiver by a two-thirds vote of the body. CEO 77-178 reflects our interpretation of which bodies would constitute "advisory boards."

Accordingly, we find that no prohibited conflict of interest is created when a member of the county land-use advisory board serves as president of an architectural firm contracting with the county.

Question 2 also is answered in the negative.

In your letter of inquiry you advise that Mr. Guerry Stribling is the president of a land development corporation which enters into development contracts with the county on a regular basis. These contracts, you advise, are for the construction of required improvements for development and subdivision of real estate under the county subdivision and platting regulations. These regulations establish procedures and standards for the development and subdivision of real estate and require the installation of certain improvements, including roads, drainage, water, and sewage; developers are required to enter into these contracts for required improvements prior to recording the final plat of the subdivision.

In our view, the rationale underlying your first question applies equally to this situation. As the land-use advisory board has no responsibilities which would involve the approval of or the giving of advice or recommendations regarding whether the county should enter into development contracts, these contracts would not interfere with the full and faithful discharge of the subject board member's public duties. In addition, we observe that the waiver provision of s. 112.313(12) would apply in these circumstances also.

Accordingly, we find that no prohibited conflict of interest exists when a member of a county land-use advisory board is the president of a development corporation which has entered into development contracts with the county for the construction of required improvements for development and subdivision.