CEO 82-48 -- July 29, 1982

CONFLICT OF INTEREST

CITY MAYOR LEASING OFFICE SPACE TO CITY ATTORNEY

To: Mr. Alex Muxo, Jr., City Manager, City of Homestead

SUMMARY:

No prohibited conflict of interest existed where a city mayor leased office space to the city attorney, with rent being paid at a flat monthly rate together with a portion of the salary of an office receptionist. Previous opinions CEO's 79-61, 76-195, and 81-74, are referenced.

QUESTION:

Did a prohibited conflict of interest exist where a city mayor leased office space to the city attorney, with rent being paid at a flat monthly rate, together with a portion of the salary of an office receptionist?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advised that the Mayor of the City of Homestead, Mr. Irving Peskoe, and his wife own a small professional office building in the City. Three attorneys have their offices in that building, each under his own name, including the Mayor. Another attorney in the building recently was appointed on a contract basis as the part- time attorney for the City. The attorney pays rent on a flat monthly rate, you write, and contributes a fixed proportion of the salary of an office receptionist/secretary. Each attorney has his own telephone number and his own separate law practice. You also advised that after the appointment of the City Attorney, each attorney stated that there would be no association of any kind in any further cases, and they proceeded to close out those few cases in which there had been a degree of involvement between them. Neither stands to gain or lose from the other's practice. Finally, you have advised that the City Attorney no longer serves in that position, and that although there is no contract between the Mayor, his wife, and the attorney, the $500 rent has continued and will continue as long as he uses that office space.

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), Florida Statutes (1981).]

This provision prohibits the Mayor from having a contractual relationship with a business entity which is doing business with his agency. Here, the Mayor did have a contractual relationship, through the lease, with a business entity, the attorney, who was doing business with the City on a contractual basis. However, in a previous opinion, CEO 79-61, we advised that no prohibited conflict of interest would be created where a school board member voted on the appointment of an architect who leased an area for his business in a building owned by the school board member and her husband, with rent being paid by a flat monthly payment rather than by a payment based upon the income of the architect. That opinion was based upon CEO 76-195, in which we advised that no prohibited conflict of interest existed where a city purchased goods from a store which leased its building from a city councilman, where the actual business conducted by the store had no effect on the lease. More recently, in CEO 81-74, we advised that no prohibited conflict of interest existed where a town council member and her husband leased property at a flat rate to a company which subsequently contracted to provide gasoline to the Town.

In each of these opinions, our rationale was based upon Section 112.316, Florida Statutes, which provides:

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, Florida Statutes (1981).]

In this case, as well as in the prior opinions, the amount of the lease between the Mayor and the attorney is a flat monthly sum, not based upon the income of the attorney. We noted in CEO 76-195, one of the essential purposes of Section 112.313(7) is to prohibit those situations in which a public officer could benefit through obtaining preferential treatment from, or awarding public business to, a business entity with which he is engaging in business. Since the relationship between the Mayor and the attorney was that of landlord, with the actual business conducted by the attorney having no effect on the particular contractual relationship between them, it does not appear that the Mayor was in a position to benefit from the attorney's being engaged by the City. In addition, we note that you have advised that the amount of rent paid did not vary and will not vary as long as the attorney uses the office space. Under the circumstances, we find that the rationale of the above opinions should apply here.

Accordingly, we find that no prohibited conflict of interest existed where the subject Mayor and his wife leased office space to the City Attorney at a flat monthly rate, with the contribution of a fixed proportion of the salary of an office receptionist.