CEO 83-27 -- June 16, 1983

CONFLICT OF INTEREST

REGIONAL PLANNING COUNCIL MEMBER'S ENGINEERING FIRM WORKING ON APPLICATIONS COMING BEFORE COUNCIL

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

SUMMARY:

No prohibited conflict of interest would be created were the civil engineering firm of a regional planning council member to work on applications for development approval for developments of regional impact, given the limited role of the firm in the application process and the number of projects the firm is involved with. CEO 81-84 is referenced.

QUESTION:

Would a prohibited conflict of interest be created were your civil engineering firm to work on applications for development approval for developments of regional impact, where you serve as a member and chairman of a regional planning council which must review the applications?

Your question is answered in the negative, under the circumstances you have presented.

In your letter of inquiry you advise that recently you were elected Chairman of the Southwest Regional Planning Council, having served on the Council for two years. Among its responsibilities, the Council is authorized to review applications for development approval (ADA) for developments of regional impact and for making recommendations on those applications to the local government units which have the authority to approve the development. Section 380.06, Florida Statutes.

In addition, you advise that your civil engineering firm presently is working on an ADA for two projects which soon will be submitted to the Council. Your firm also is working on two other projects and may become involved in a third, you advise. You question whether you are required to resign from the Council before these applications are submitted, or whether you may turn the gavel over to the Vice Chairman, abstain from voting, and state the reasons when an application with which your firm is involved comes before the Council.

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).]

Where a conflict of interest arises only occasionally, the Legislature has provided that a voting official may abstain from voting, pursuant to Section 286.012, Florida Statutes, or may vote while disclosing the conflict to the public as provided in Section 112.3143, Florida Statutes. However, when the official's employment presents him with a continuing or frequently recurring conflict of interest, or impedes the full and faithful discharge of his public responsibilities, the Legislature has provided in Section 112.313(7)(a) that the official may not continue to serve in the face of that conflict. No public officer or employee "shall have any interest, . . . or professional activity . . . which is in substantial conflict with the proper discharge of his duties in the public interest." Section 112.311(5), Florida Statutes.

In a recent advisory opinion, CEO 81-84, we stated that as a general rule not every person whose private employment revolves around real estate development is prohibited from serving on a planning commission, and we advised:

It is only in situations where the member's private interests are substantial and would be substantially affected by the Commission's work, that he should not be permitted to serve on the Planning Commission.

In our view, under the circumstances presented, your firm's involvement in these developments of regional impact does not present such a substantial conflict of interest as to preclude your continuing service on the Planning Council.

The Southwest Florida Regional Planning Council includes the counties of Charlotte, Collier, Glades, Hendry, Lee, and Sarasota, each of which is represented on the Council. Rule 29I-1.04, F.A.C. You have advised that your firm's work involves land development in only two of these six counties. According to information provided by the Executive Director of the Council, your firm currently is involved in only two of eleven projects pending at various stages of the review process before the Council and its staff.

Moreover, you have advised that an application for development approval regarding a development of regional impact contains 32 questions which concern various types of engineering, land-planning, economic, archeological, legal, and environmental matters. As a civil engineering firm, your business normally handles three questions and a portion of another out of the 32. However, it is possible that your firm could handle five questions and a portion of a sixth on the application. Therefore, your firm could be responsible for anywhere from 12 to 15 percent of the number of questions answered in the application for development approval.

Without greater involvement by your firm in each application for development approval, we cannot conclude that your private interests are so substantial as to impede the full and faithful discharge of your public duties. In addition, without your firm's involvement in a greater proportion of the applications coming before the Council (presently two out of eleven projects pending), we cannot conclude that your firm's work presents a continuing or frequently recurring conflict of interest for you.

Accordingly, we find that no prohibited conflict of interest exists in your continuing service on the Regional Planning Council while your engineering firm is involved in applications for development approval coming before the Council.