CEO 76-75 -- April 16, 1976

CONFLICT OF INTEREST

DIRECTOR OF MUNICIPAL DEPARTMENT CONTRACTING WITH BUILDER SUBJECT TO REGULATION BY THE DEPARTMENT

To: J. Bart Budetti, City Attorney, Hollywood

Prepared by: Bonnie Johnson

SUMMARY:

The director of a municipal growth management department is not prohibited from buying a lot within the city and contracting with a builder for the construction of a personal residence upon the site, even though the department regulates site planning, zoning, and the enforcement of certain codes within the city. Florida Statute s. 112.313(7)(1975) prohibits a public employee from having a contractual relationship with any business entity which is regulated by his agency, but, in its statement of legislative intent and declaration of policy, the Code of Ethics provides that the law should be designed so as not to impede unreasonably the recruitment and retention of qualified persons to public service and that public officials should not be denied basic opportunities, available to other citizens, to acquire private economic interests except when conflict cannot be avoided. See Fla. Stat. s. 112.311(2) and (4). To prohibit a city employee the privilege of building his home within the employer city, while in compliance with the strict letter of s. 112.313(7), would not be within the spirit of the law as expressed in s. 112.311.

QUESTION:

Would a prohibited conflict of interest be created were the director of a city's growth management department to buy a lot within the city and contract with a builder for the construction of a personal residence upon the site, where the department regulates site planning, zoning, and the enforcement of certain codes within the city?

Your question is answered in the negative.

It is our understanding, based upon your letter of inquiry, that a person seeking to build within the city first submits plans to the building division within the city engineering department. The plans then are transmitted by that division to the growth management department for site plan review and zoning approvals by the zoning division. Once construction has begun, the code enforcement division of the growth management department conducts inspections in such areas as paving, landscaping, etc. The enforcement of the South Florida Building Code and inspections related thereto fall within the jurisdiction of the building division of the engineering department, however.

The circumstances at issue center upon the growth management director's desire to purchase a lot within the city and to contract with a builder for the construction of a personal residence on the site. The site plan review and zoning approvals connected with such construction necessarily would be handled by the zoning division of the director's department, and the code enforcement division of the department would be responsible for various inspections and approvals during the stage of actual construction. Moreover, should the director contract with a local builder, as he wishes to do, such builder is subject to departmental regulation on a continuing basis, i.e., each and every time he does work within the city.

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. . . . [Fla. Stat. s. 112.313(7)(a)(1975).]

The above-quoted provision of the law clearly prohibits a public employee from having a contractual relationship with a business entity subject to the regulation of that employee's public agency. As pointed out above, were the director to contract with a local builder, such builder is subject to the regulation of the department on a recurring basis. Should a contractor from outside the area be employed, however, he too would be subject to the regulation of the growth management department during the period that the director's house was being built. It would thus appear that the growth management director is prohibited from building a home within the city he serves.

However, in the statement of legislative intent and declaration of policy, the Code of Ethics provides in germane part:

It is also essential that government attract those citizens best qualified to serve. Thus, the law against conflict of interest must be so designed as not to impede unreasonably or unnecessarily the recruitment and retention by government of those best qualified to serve. Public officials should not be denied the opportunity, available to all other citizens, to acquire and retain private economic interests except when conflicts with the responsibility of such officials to the public cannot be avoided. [Fla. Stat. s. 112.311(2)(1975).]

The statement of intent further provides:

It is the intent of this act to implement these objectives of protecting the integrity of government and of facilitating the recruitment and retention of qualified personnel by prescribing restrictions against conflicts of interest without creating unnecessary barriers to public service. [Fla. Stat. s. 112.311(4)(1975).]

In our view, to deny a municipal employee the privilege of building his home within the employer city would represent an unreasonable and unnecessary restraint upon his chosen personal lifestyle, given the factual circumstances before us. The prohibition of his doing so, while in compliance with the strict letter of s. 112.313(7), would not be within the spirit of the law, as expressed in its opening section quoted in part above. Such prohibition would deny him the opportunity, available to other citizens, to live near his place of work and within an area he clearly appreciates.

You assure us in your letter of inquiry that the subject director would remove himself from personal involvement and decision-making in connection with the building of his home, leaving departmental regulation related to such construction to other employees within the department. We trust him to do so and, in consideration of the spirit and intent of the Code of Ethics, find no prohibited conflict of interest in the situation described herein.