CEO 81-1 -- January 22, 1981

CONFLICT OF INTEREST

EMPLOYEE OF CITY DEPARTMENT OF PLANNING ASSOCIATED WITH REAL ESTATE FIRM

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

SUMMARY:

A public employee is prohibited by s. 112.313(7)(a), F. S., from having 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. This provision would be violated were an administrative secretary for a city department of planning, in his private capacity as a real estate salesman, to have an interest with respect to property which is subject to rezoning, platting, or any of the other affirmative regulatory responsibilities of that department. He would not, however, be prohibited from participating in other types of real estate transactions which do not involve his department. Also, attention is called to s. 112.313(8), prohibiting the use or disclosure of information gained by virtue of public position for private gain.

QUESTION:

Does a prohibited conflict of interest exist where you, an administrative secretary for a city department of planning, hold an active license as a real estate salesman and sell real estate part time?

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

In your letter of inquiry you advise that you are employed by the City of Coral Springs as Administrative Secretary in the Department of Planning. You also advise that the Department is responsible for preparing and coordinating the preparation of long and short-range comprehensive and special purpose plans for the City. The Department is responsible for monitoring, updating, and coordinating implementation of adopted plans, including creating, maintaining, and coordinating development regulations and standards. Thus, many aspects of the development review process within the City, such as rezoning, platting, major site plan review, abandonment and dedication of roads and easements, sign variances, and other matters, are the responsibility of the Department. In addition, the Department maintains all City maps and municipal addresses, implements parking plans, and monitors population density, as well as coordinating all of its responsibilities with the appropriate government agencies.

As Administrative Secretary, you advise that you are the secretarial assistant to the head of the Department. In this capacity, you give information to realtors, builders, and architects pertaining to zoning information and plat maps . You also are responsible for interpreting administrative policy and decisions as explained and directed, relieving the Department head of clerical details and administrative matters, and transmitting orders and instructions. Your duties also include performing public relations functions with the public, Department heads, officials, personnel, and visitors, as well as coordinating meetings, conferences, and appointments for the Department head. In addition, you prepare records and reports; answer inquiries regarding addresses, zoning matters, and ordinances; process materials for City Commission meetings and Planning and Zoning Board meetings; and process Department cases.

Finally, you advise that you hold an active license as a real estate salesman and would like to sell real estate only on a part- time basis.

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.]

The first part of this provision prohibits a public employee from having a contractual relationship with a business entity which is subject to the regulation of, or is doing business with, his public agency. It is clear that you have a contractual relationship with the real estate firm with which you are associated. Under the facts that you have presented, it does not appear that this firm is doing business with the Department of Planning, which is your agency. Nor is the real estate firm subject to the regulation of the Department, as real estate brokers and salesmen are regulated by the Florida Real Estate Commission under Chapter 475, F. S. Therefore, the first portion of the above-quoted provision does not apply.

The second part of Section 112.313(7)(a) prohibits a public employee from having 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. In a previous opinion, CEO 79-8, we found that a deputy clerk's association with a local real estate firm would create a frequently recurring conflict between his private interests and the performance of his public duties because of the amount and variety of information regarding real estate transactions made available to him before being made available to the general public. In addition, the deputy clerk was in a position to refer inquiries concerning real estate listings and sales to his real estate firm. We are of the opinion that your situation differs from that in CEO 79-8 both because you have not indicated that you have the opportunity through your position to make any referrals to the real estate firm with which you are associated and because your position is not responsible for processing such a great amount and variety of information regarding real estate transactions. Thus, you would not be prohibited from participating in all types of real estate transactions within the city. For example, we do not perceive a prohibited conflict of interest in your participating in the sale of residential property which does not involve rezoning, platting, site plan review, abandonment or dedication of easements, or other responsibilities of the Planning Department.

However, we are of the opinion that the full and faithful discharge of your duties to the Department would be impeded if you were to have an interest as a real estate salesman with respect to property which is subject to rezoning, platting, or any of the other affirmative, regulatory responsibilities of the department. As we have not been provided with more detailed circumstances, we are unable to give more than this general guidance. If specific circumstances do arise which might involve positive action by the Department, we urge you to request another advisory opinion.

In addition, we would caution you that the Code of Ethics also contains the following prohibition against using or disclosing information gained by virtue of your public position before such information becomes available to the public:

DISCLOSURE OR USE OF CERTAIN INFORMATION. -- No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), F. S.]

Although we do not feel that this provision prohibits you entirely from retaining an active real estate license, we recognize that it is possible that you will become aware of information regarding planning and zoning before that information is available to the general public. In such instances, we urge you to be particularly cautious in your activities as a real estate salesman and as an associate of a real estate firm.

Accordingly, subject to the restrictions expressed above, we find that the Code of Ethics for Public Officers and Employees does not prohibit you from holding an active license as a real estate salesman and selling real estate part time while being employed as an Administrative Secretary for the City Department of Planning. In addition, please be advised that our opinion does not foreclose the possibility that the City may wish to impose more restrictive standards than those imposed by the State ethics laws.