CEO 81-77 -- December 18, 1981

CONFLICT OF INTEREST

COUNTY COMMISSIONER PRESIDENT OF CONSTRUCTION COMPANY BIDDING ON CONTRACTS AFTER REZONING OR CONTRACTS WITH HOUSING AUTHORITY

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

SUMMARY:

No prohibited conflict of interest would be created where a county commissioner is president of a construction company bidding on a lot or on a construction job within a parcel of land rezoned by the county commission. After rezoning of a parcel of land has been accomplished by the county commission, the owner of that parcel no longer is subject to regulation by the commission. Although a county commissioner is prohibited from having any employment or contractual relationship with a business entity which is subject to the regulation of the county commission, the enactment of ordinances specifying the manner and mode of land development and building construction within the county does not constitute "regulation" within the contemplation of the statute. Complaint No. 79-74, In re John Zerweck, is referenced in this regard.

No prohibited conflict of interest would be created where a county commissioner is president of a construction company which bids for the construction of a low-cost housing project proposed by the county housing authority. A county housing authority is a political subdivision separate and distinct from the county under Florida law. Although in this instance the county commission appoints members of the housing authority, this power of appointment does not indicate that the housing authority is subject to regulation by the county commission. Nor is the housing authority regulated by or doing business with the county commission by virtue of a cooperation agreement relating to the provision of public services to housing authority projects and the payment of taxes on such projects.

No prohibited conflict of interest would be created where a member of a regional planning council which reviews federally-funded projects is president of a construction company which bids for the construction of a federally-funded housing authority project. In this instance, the planning council's authority to review and make recommendations on federally-funded housing authority projects does not constitute the power to regulate the housing authority.

QUESTION 1:

Would a prohibited conflict of interest be created where you, a county commissioner, are president of a construction company which has bid on a lot or on a construction job within a parcel of land rezoned by the county commission?

This question is answered in the negative.

In your letter of inquiry you advise that in addition to your position as a member of the Alachua County Commission you are president of a family-owned construction company. While you and the members of your family refrain from active involvement in daily business activities, having employed two managers who are responsible for the day-to-day operation of the company, you do make the final decisions on any job or project the company undertakes.

As a member of the County Commission, you are responsible for zoning and regulating the development of lands within the County, with zoning actions being affected by resolutions of the County Commission. You question whether, after the rezoning of a parcel of land, a conflict of interest would be created were your company to bid on a lot or on a construction job within the parcel.

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. (1979).]

This provision prohibits you from having any employment or contractual relationship with a business entity which is subject to the regulation of the County Commission. However, once rezoning of a parcel of land has been accomplished by the County Commission, the owner of that parcel no longer is subject to regulation by the Commission. Therefore, your company's contract for purchase of a lot or for a construction job within the parcel would not be with a business entity which is subject to the regulation of the County Commission. Although the manner and mode of land development and building construction within the County is specified by County ordinances, we previously have found that the enactment of such ordinances does not constitute "regulation" within the contemplation of this statute. In re John Zerweck, Complaint No. 79-74.

Accordingly, we find that no prohibited conflict of interest would be created were your construction company to bid on a lot or on a construction job within a parcel of land rezoned by the County Commission.

QUESTION 2:

Would a prohibited conflict of interest be created where you, a county commissioner, are president of a construction company which bids for the construction of a low-cost housing project proposed by the county housing authority?

This question is answered in the negative.

Section 112.313(7)(a), F. S., quoted above in our response to your first question, is the provision of the Code of Ethics most relevant to the question you have presented here. That section prohibits you from having any employment or contractual relationship with an agency which either is doing business with, or is subject to the regulation of, the County Commission.

In your letter of inquiry you advise that Chapter 71-526, Laws of Florida, requires the County Commission to appoint members of the County Housing Authority. We previously have advised that the power of appointment of housing authority members, without more, does not constitute "regulation" of the housing authority. CEO 81-25.

You also have advised that the Housing Authority and the County Commission have entered into a cooperation agreement which relates to the provision of public services to Housing Authority projects and under which the Authority makes an annual payment in lieu of taxes on its property. Such intergovernmental agreements do not constitute "doing business" between governmental agencies, as contemplated by Section 112.313(7)(a), F. S. See CEO's 76-2 (Question 9), 80-5, and 81-5. Nor do we believe that the Housing Authority has become subject to the regulation of the County Commission by virtue of this agreement.

Accordingly, we find that no prohibited conflict of interest would be created were your construction company to bid for the construction of a low-cost housing project proposed by the County Housing Authority.

QUESTION 3:

Would a prohibited conflict of interest be created where you, a member of a regional planning council which reviews federally-funded projects, are president of a construction company which bids for the construction of a federally-funded housing authority project?

This question is answered in the negative.

In your letter of inquiry you advise that Housing Authority projects are totally funded by federal financial assistance. OMB Circular A-95 requires that a local governing body review and comment on any federally-funded projects developed within its boundaries. This review for your region is performed by a clearinghouse committee of the North Central Florida Regional Planning Council, an organization composed of eleven local governments including Alachua County. You are a member of the Board of Directors of the Planning Council and a member of the A-95 Committee. These comments are merely advisory, you state, although the federal government is somewhat responsive to adverse recommendations made by affected local governments.

Again, Section 112.313(7)(a), F. S., is the provision of the Code of Ethics most relevant to this question. In our view, the Housing Authority is not subject to the regulation of the Planning Council merely because proposed projects of the Housing Authority must be reviewed and commented on by the Council. Since the Council's recommendation is merely advisory, the Council has no authority to compel the Housing Authority to take any particular action.

Accordingly, we find that no prohibited conflict of interest would be created were your construction company to bid for construction of a federally-funded Housing Authority project.