CEO 79-2 -- January 18, 1979

CONFLICT OF INTEREST

COMMUNITY APPEARANCE BOARD MEMBER REPRESENTING CLIENTS BEFORE BOARD AS AN ARCHITECT

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

Prepared by: Phil Claypool

SUMMARY:

In CEO's 78-86 and 77-126 the Commission on Ethics advised that a prohibited conflict of interest under s. 112. 313(7)(a), F. S., would be created were a public officer to represent a client before the public board of which he is a member. However, subsection (b) of that section further states that the provision does not preclude a public officer or employee "from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance." If a municipal ordinance requires that a registered architect sit on the city's community appearance board, and if that board reviews all plans for construction or renovation within the city, an architect effectively would be prohibited from practicing his profession within that city were he to accept appointment to the board, following the rationale of the above-cited precedent opinions. In the instant case, however, the city, by ordinance, has mandated that a registered architect sit on the board, thus rendering applicable the exemption contained in s. 112.313(7)(b) for particular professions. No conflict of interest therefore is deemed to exist when said board member privately represents, as an architect, clients before the board.

QUESTION:

Does a prohibited conflict of interest exist if a member of a community appearance board, who is required to be an architect in order to hold the position, represents clients before the board?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advise that ____ is a registered architect who does work on projects located in and outside of the City of ____ . You also advise that he is a member of the City of ____ Community Appearance Board.

This board reviews and approves or disapproves, under the criteria set forth in ss. 2-34 and 2-34.1 of the ____ Code, every application for a permit to erect a building, structure, or sign in the city, or to materially alter the elevation of any existing building, structure, or sign in the city, excluding separate single- family dwellings. Section 2-33(b), ____ Code. Every application must be accompanied by two sets of detailed plans and one set of detailed specifications for the proposed work, prepared by a registered architect or registered engineer. Section 2-33(b), ____ Code. The board is the final decisionmaking authority in regard to the matters within its jurisdiction, except in cases where an applicant appeals a decision to the city council, which then is authorized to render a final decision. Section 2-33(b), ____ Code. The board is composed of five members, appointed by the city council for 2-year terms, plus two alternate members; each member is required to be a resident of or have his principal place of business in the city. In addition, two of the regular members are required to be registered architects; one member is required to be a landscape architect or a person with expertise in landscaping; and, whenever possible, one of the alternate members is required to be a registered architect. Section 2-32, ____ Code.

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. 1977.]

In previous opinions we have advised that this provision of the Code of Ethics prohibits a public officer from representing a client before a public board of which he is a member. See CEO's 78-86 and 77-126.

However, s. 112.313(7)(b), F. S. 1977, provides:

This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance.

This provision, in effect, allows a waiver by law or ordinance of conflicts of interest arising from the interaction between a public officer's or employee's professional activities and his public duties in situations where the necessity for professional expertise is so great as to outweigh potential harm resulting from these conflicts of interest. Thus, in CEO 76-42 we advised that a part-time building inspector could engage in the construction industry because this activity expressly was permitted by ordinance until such time as a full-time building inspector was hired.

Here a city ordinance requires the subject community appearance board member to be a registered architect. If s. 112.313(7)(a) were to prohibit his representing clients before the board, he effectively would be prohibited from practicing his profession within the city since the board reviews nearly all building permit applications and architects' plans and specifications. However, it appears that the city, by ordinance, has decided that it is essential to have an architect on a board which reviews the work of architects within the city. Under these circumstances, the exemption contained in s. 112.313(7)(b) applies.

Accordingly, we find that the Code of Ethics does not prohibit the subject community appearance board member from representing clients before the board, when he is required by ordinance to be an architect in order to serve on the board. In addition, please note that when a matter in which the subject board member privately has been involved comes before the board, he may abstain from voting under s. 286.012, F. S. 1977; or, if he votes on the matter, he will be required to file a Memorandum of Voting Conflict under s. 112.3143, F. S. 1977. See CEO 78-96.