CEO 77-143 -- August 24, 1977

CONFLICT OF INTEREST

MEMBER OF MUNICIPAL BOARD OF ADJUSTMENT SERVING AS ELECTED MEMBER OF COUNTY WATER MANAGEMENT DISTRICT

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(7)(a), F. S. 1975, prohibiting conflicting employment or contractual relationships, is not violated where an appointed member to a municipal board of adjustment seeks election to the governing board of a county water management district, as he has neither an employment nor a contractual relationship with either board. As no other provision of the Code of Ethics is applicable to the situation, no prohibited conflict of interest is found to exist under the code. However, the opinion does not address the potential effect of the dual officeholding prohibition contained in s. 5(a), Art. II, State Const., nor whether a violation of that provision constitutes a breach of public trust under s. 8, Art. II.

QUESTION:

Would a prohibited conflict of interest exist were a member of a municipal board of adjustment to be elected to serve on the board of a county water management district?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff you have advised that Mr. Joseph Friedman appointed by the city commission as a member of the Board of Adjustment of the City of Margate, wishes to qualify for election as a member of the Board of the Broward County Water Management District Number 4. You also advised that the board of adjustment hears requests for variances from the city zoning code but that final decisions are made by the city commission. Our staff contacted the offices of the Broward County Water Management Districts and was informed that its Water Management District Number 4 is one of four special tax districts established by the Board of County Commissioners primarily to handle drainage problems within the area. That office further advised that the elected board of each district is composed of two persons residing within the district as well as the county commissioner whose district falls within the water management district boundaries.

In addition, you advised that the subject board member resides within an area of the city which has been assessed by the water management district for the widening and deepening of the canals within the area. Because of complaints from residents of that area, the city is attempting to have that area removed from the control of the district.

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. 1975.]

This provision prohibits a public officer from having any employment or contractual relationship with an agency which is subject to the regulation of his agency or which would create a frequently recurring conflict between his private interests and his public duties. As the subject member of the board of adjustment does not have an employment or contractual relationship with that board and he would not have such a relationship with the water management district were he to be elected, we find that this provision of the Code of Ethics does not apply to his situation. See CEO 77-95.

As we find no other provision in the Code of Ethics to be applicable, we find that no prohibited conflict of interest would be created were the subject member of a municipal board of adjustment to be elected to serve on the Board of the Broward County Water Management District Number 4. Please note, however, that this opinion does not address the effect upon the subject board member of the dual officeholding prohibition contained in s. 5(a), Art. II, State Const. You may wish to contact the Attorney General regarding the applicability of that provision. Nor does this opinion address the question of whether a violation of that provision constitutes a breach of public trust under s. 8, Art. II.