CEO 82-73 -- September 20, 1982

CONFLICT OF INTEREST

ATTORNEY WITH DIVISION OF BOND FINANCE, DEPARTMENT OF GENERAL SERVICES, OWNING LAND WHICH MAY BE PURCHASED BY DEPARTMENT OF NATURAL RESOURCES FROM PROCEEDS OF STATE BOND ISSUE

To: Ms. Lucy H. Harris, Attorney, Division of Bond Finance, Department of General Services

SUMMARY:

No prohibited conflict of interest exists where an attorney with the Division of Bond Finance, Department of General Services, owns land which may be purchased by the Department of Natural Resources with the proceeds of bonds issued by the Division. As the attorney's agency for purposes of the Code of Ethics is the Division of Bond Finance, the sale would not be made to her public agency in violation of Section 112.313(3), Florida Statutes. Nor does it appear that a conflict of interest would exist under Section 112.313(7), Florida Statutes, because the Division of Bond Finance is not involved in the selection or acquisition of property and because of the limited size of the attorney's property holdings.

QUESTION:

Does a prohibited conflict of interest exist where you, an attorney with the Division of Bond Finance, Department of General Services, own land which may be purchased by the Department of Natural Resources with the proceeds of bonds issued by the Division?

Your question is answered in the negative.

In your letter of inquiry you advise that you are an attorney with the Division of Bond Finance, Department of General Services, and that you have worked extensively on the Save Our Coast bond issue. Pursuant to the State Bond Act (Sections 215.57 -- 215.83, Florida Statutes), the Division of Bond Finance is responsible for issuing tax-exempt bonds on the behalf of the State and its agencies. With respect to the Save Our Coast bonds, the Department of Natural Resources is responsible for selecting coastal properties to be acquired with bond proceeds and for negotiating the voluntary purchase of such lands. You advise that the Division of Bond Finance has no involvement in the identification, selection, or acquisition of eligible properties; the Division's role is simply to issue the bonds in order to provide funding to the Department of Natural Resources for this program.

You also advise that you and your husband own approximately one and one-half acres on Cape San Blas, located on the St. Joseph Peninsula in Gulf County. In a telephone conversation with our staff, you advise that the Governor and Cabinet approved a list of properties targeted for acquisition with Save Our Coast bond proceeds on August 3, 1982. The list categorizes the proposed projects from "A" to "C" in order of priority, with "A" representing the highest priority. The list includes approximately 1,000 acres on St. Joseph Peninsula in the "C" category, which is the lowest priority among the recommended projects.

Because St. Joseph Peninsula does not occupy the highest priority position from the recommended project list, it is unlikely that this property will be among those parcels purchased with proceeds of the first series of bonds which have been issued. It is conceivable, however, that the property may be purchased with proceeds from the sale of subsequent series of Save Our Coast bonds. In light of these facts, you question whether your ownership of this property and your extensive involvement with the Save Our Coast program constitutes an impermissible conflict of interest which would prevent you from working on future series of the bonds.

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

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1981).]

This provision prohibits you from acting in a private capacity to sell any real property to your agency. For purposes of the Code of Ethics, your "agency" is the Division of Bond Finance of the Department of General Services. See the definition of "agency" contained in Section 112.312(2), Florida Statutes. Therefore, it is clear that you would not be selling realty to your agency, since the property would be acquired by the Department of Natural Resources, rather than the Division of Bond Finance.

In addition, the Code of Ethics provides:

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).]

If you were to sell your property to the Department of Natural Resources, you would have a contractual relationship with that agency. However, we do not find that the Department of Natural Resources is subject to the regulation of, or is doing business with, your agency, the Division of Bond Finance, under the circumstances you have presented. Nor does it appear that any continuing or frequently recurring conflict of interest would be created by the fact that your property may be purchased by the Department of Natural Resources, both because the Division of Bond Finance is not involved in the selection or acquisition process and because of the limited size of your property holdings.

Accordingly, we find that no prohibited conflict of interest exists where you own property which may be purchased by the Department of Natural Resources with proceeds from bonds issued by your employer, the Division of Bond Finance.