CEO 78-8 -- February 16, 1978

CONFLICT OF INTEREST

CITY COMMISSIONER OWNER OF LAND BEING CONDEMNED BY CITY

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

Prepared by: Phil Claypool

SUMMARY:

The Code of Ethics for Public Officers and Employees prohibits a public officer acting in his official capacity from purchasing any realty for his own agency from himself and, acting in a private capacity, from selling any realty to the political subdivision which he serves. Section 112.313(3), F. S. 1975. In a previous opinion, CEO 76-7, the Ethics Commission found that a city attorney was prohibited from selling realty to his city, but it was advised that if the city felt it needed the property in question, it properly could seek an order of taking in a public condemnation proceeding. It is the opinion of the commission that condemnation does not constitute a sale for the purposes of s. 112.313(3). Therefore, no prohibited conflict of interest would be created were a city to obtain a parcel of land by public condemnation proceedings where the land in question is owned by a member of the city commission.

QUESTION:

Would a prohibited conflict of interest be created were a city to obtain a parcel of land by public condemnation or eminent domain proceedings where the land in question is owned by a city commissioner?

Your question is answered in the negative.

In your letter of inquiry you advise that ____ is a member of the ____ City Commission and that he and his wife own a parcel of land within the city. You also advise that, because of the location of this property, the city is contemplating condemning it for use as a parking facility.

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), F. S. 1975.]

This provision prohibits a public officer acting in his official capacity from purchasing any realty for his own agency from himself and also prohibits a public officer acting in a private capacity from selling any realty to the political subdivision which he serves.

In a previous opinion, CEO 76-7, we found that the above-quoted provision prohibits a city attorney from selling realty to his city, but we advised that if the city felt that it needed the property in question, it properly could seek an order of taking in a public condemnation proceeding. We remain persuaded that condemnation does not constitute a sale for the purposes of s. 112.313(3), above. A sale is a contract requiring the agreement of both the vendor and purchaser. See, for example, the definitions of "sale" in Black's Law Dictionary 1503 (4th ed. 1968). On the other hand, the exercise of the sovereign power of eminent domain in condemnation proceedings by a political subdivision is a taking of property, not requiring the agreement of the owners, subject to constitutional and statutory restrictions. See s. 6, Art. X, State Const., and Ch’s. 73 and 74, F. S.

Accordingly, we find that no prohibited conflict of interest would be created were a city to obtain a parcel of land by public condemnation proceedings where the land in question is owned by a member of the city commission. The subject commissioner's participation or nonparticipation in the city's decision to condemn his property and in subsequent proceedings should be guided by ss. 112.313(6), 112.3143, and 286.012, F. S. 1975.