CEO 79-8 -- February 22, 1979

CONFLICT OF INTEREST

DEPUTY CLERK OF CIRCUIT COURT ASSOCIATED WITH REAL ESTATE FIRM

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

Prepared by: Phil Claypool

SUMMARY:

A deputy clerk of circuit court in charge of county recording who privately engages in the sale of real estate within the county is deemed to have a contractual relationship that "will create a continuing or frequently recurring conflict between [her] private interests and the performance of [her] public duties and that would impede the full and faithful discharge of [her] public duties," in violation of s. 112.313(7)(a), F. S. 1977. In CEO 78-82 the Commission on Ethics found a prohibited conflict of interest would exist were a police officer to manage a private security business, in part because of his access to special information through his department and the possibility that such information could be used to the benefit of a private client. A similar situation is presented here. The subject deputy clerk has access to information of potentially great benefit to the real estate firm with which she is associated, including information regarding property sales, foreclosures, probate matters, and other matters in litigation. While most of this information eventually is available to the general public as public records, it is available to a deputy clerk immediately upon its filing, thus availing her of the opportunity to act on it before any other member of the public is aware of its existence. Such use of information would be in violation of s. 112.313(8), F. S. There is the further potential for misuse of public position under s. 112.313(6) through the possibility of the subject deputy clerk's referring out-of-the-county inquiries to the real estate firm with which she is associated.

QUESTION:

Does a prohibited conflict of interest exist when a deputy clerk of the circuit court in charge of county recording is associated with a local real estate firm?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you are the Clerk of the Circuit Court for ____ County and that you are inquiring about your deputy clerk in charge of county recording who has entered into the field of real estate sales by becoming an associate of a local realty firm. You also advise that you feel it would be extremely advantageous for a real estate salesman to be employed in the office of the clerk of the circuit court, as that office has knowledge of foreclosures, civil suits, real estate sales, and probate matters, as well as other information long before this information becomes generally available. In addition, you advise that your office receives telephone calls from out-of-county residents requesting names of realty firms to be contacted concerning the listing of properties for sale or concerning the possible purchase of property.

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

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.]

It is clear that the subject deputy clerk has a contractual relationship with the real estate firm with which she is associated as a salesperson. That real estate firm constitutes a "business entity" within the terms of s. 112.312(3), F. S. 1977. Under the facts that you have presented, it does not appear that this real estate firm is doing business with the office of the clerk of the court, which is the subject deputy clerk's "agency," as that term is defined in s. 112.312(2), F. S. Nor is the real estate firm subject to the regulation of the clerk of the court, as real estate brokers and salesmen are regulated by the Florida Real Estate Commission under Ch. 475, F. S. Therefore, the first portion of the above- quoted provision does not apply.

However, we are of the opinion that a deputy clerk's association with a local real estate firm constitutes a contractual relationship that will create a frequently recurring conflict between her private interests and the performance of her public duties and that would impede the full and faithful discharge of her public duties, in violation of the second portion of s. 112.313(7)(a). In a previous advisory opinion, CEO 78-82, we found a prohibited conflict of interest would exist were a police officer to manage a private security business, in part because of his access to special information through his department and the possibility that such information could be used to the benefit of a private client. A similar situation is presented here, in which the subject deputy clerk has access to information of potentially great benefit to the real estate firm with which she is associated, including information regarding property sales, foreclosures, probate matters, and other matters in litigation. While nearly all of this information eventually is available to the general public as public records, it is available to a deputy clerk immediately upon its filing, thus giving her the opportunity to act on this information before any other member of the public is aware of it. Such action is prohibited by s. 112.313(8), F. S., which prohibits a public officer or employee from using information not available to the general public for his gain or benefit or that of any other person. In addition, we perceive the potential for misuse of public position by the subject deputy clerk through the possibility of her referring out-of-county inquiries to her real estate firm.

Accordingly, we find that a prohibited conflict of interest exists when a deputy clerk of the circuit court in charge of county recording is associated with a local real estate firm.