CEO 85-26 -- April 4, 1985

CONFLICT OF INTEREST

CITY PLANNING AND ZONING BOARD MEMBER EMPLOYED BY ENGINEERING FIRM ACTING AS CITY ENGINEER

To: Ms. Nancy A. Cousins, Assistant City Attorney, City of Parkland

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a member of a city planning and zoning board to be employed by the engineering firm which has contracted with the city to provide services as the city engineer, including making recommendations on matters coming before the planning and zoning board. Employment with the engineering firm would present a continuing or frequently recurring conflict of interest, as the recommendations of the firm regarding site development plans and plats regularly will come before the board.

QUESTION:

Would a prohibited conflict of interest be created were a member of a city planning and zoning board to be employed by the engineering firm which has contracted with the city to provide services as the city engineer, including making recommendations on matters coming before the planning and zoning board?

Your question is answered in the affirmative.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that Mrs. Adolphine Lazowick served on the Planning and Zoning Board for the City of Parkland until the engineering firm which employs her was selected by the City Commission to provide consulting engineering services, including services as the City Engineer. You also advise that she does not own stock or have any other interest in the firm other than as an employee, although her father is a partner in the firm.

In addition, you have advised that the Planning and Zoning Board had no responsibility relating to the contract between the City and the firm. However, the Planning and Zoning Board reviews site development plans and plats based on the recommendations of the engineering firm. The firm has agreed not to do private work within the City which would require review by the firm in its capacity as City Engineer. The City questions whether this individual may be reappointed to the Planning and Zoning Board.

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 (1983).]

The first part of this provision would prohibit a Planning and Zoning Board member from being employed with a business entity which either is doing business with, or is subject to the regulation of, the Planning and Zoning Board. As the Board had no responsibilities in connection with the contract between the City and the engineering firm, we find that the firm is not doing business with that Board. Nor does it appear that the engineering firm could be considered to be subject to the regulation of the Planning and Zoning Board.

Section 112.313(7)(a) also prohibits a public officer from having any employment that would create a continuing or frequently recurring conflict of interest. The term "conflict of interest" is defined to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." Section 112.312(6), Florida Statutes. We note also that the Legislature has provided as part of the intent of the Code of Ethics that "it is essential to the proper conduct and operation of government that public officials be independent and impartial . . . . " Section 112.311(1), Florida Statutes.

The usual conflict of interest question arising out of service on a planning board concerns a board member's involvement with private development activities subject to review by his board. See, for examples, CEO 81-84 (town planning commission member serving as president of construction and land development corporation), and CEO 83-20 (city board of architects member representing client before other city departments and agencies). Nevertheless, we understand the words "independent and impartial" to mean not favoring either the developer's interests or the position of the City engineer. Therefore, we are of the opinion that employment with a firm whose recommendations continually must come before one's board would tend to lead to disregard of one's public duty to remain independent and impartial when reviewing those matters. For this reason, we find that employment with the engineering firm would present a continuing or frequently recurring conflict of interest with the duties of a planning and zoning board member.

Accordingly, we find that a prohibited conflict of interest would be created were a planning and zoning board member to be employed by the engineering firm which acts as city engineer in making recommendations on matters coming before the board.