CEO 78-79 -- November 15, 1978

CONFLICT OF INTEREST

MEMBER OF MUNICIPAL BOARD OF ADJUSTMENT WHO OWNS LAND WITHIN THE CITY EMPLOYED TO HELP PREPARE CITY'S LAND-USE PLAN AND ADDRESSES CITY COUNCIL CONCERNING THE PROPOSED LAND

To: Donald J. Lunny, Plantation City Attorney, Fort Lauderdale

Prepared by: Phil Claypool

SUMMARY:

Section 1(g), Art. VIII of the State Constitution provides that counties operating under a charter government have all powers of local self-government not inconsistent with general law and that the governing body of such counties may enact county ordinances not inconsistent with general law. The Code of Ethics is a general law which is applicable to officers and employees of counties, cities, and other political subdivisions of the state. See Oldham v. Rooks, 361 So.2d 140, 142 (Fla. 1978). Therefore, the Code of Ethics is deemed to govern the conduct of an officer or employee of a municipality located within a charter county which has passed an ordinance regulating conflicts of interest on the part of county and municipal officials and employees.

A member of a municipal board of adjustment who owns land within the city is not prohibited by the Code of Ethics from being employed part time, for $288 in compensation, to help prepare the city's land-use plan. Although s. 112.313(3), F. S. 1977, prohibits a public officer from privately selling his services to the political subdivision he serves, s. 112.313(12)(f) provides an exemption from such prohibition where the total amount of the transaction does not exceed $500.

Neither does the Code of Ethics prohibit such member of a municipal board of adjustment, who has been employed part time to assist in the preparation of the land-use plan, from addressing the city council concerning the proposed density of residential development of an area of the city which includes property owned by him. No public officer or employee is prohibited from appearing before any board in an individual capacity as a private citizen, representing his own personal interests. See CEO 77-119. No violation of s. 112.313(8), relating to disclosure or use of certain information, was created because the information utilized was available to the general public, and further because any gain or benefit which might inure to the official is contingent upon other decisions and, therefore, is remote and speculative. As neither his official position nor any property or resource within his trust were involved in the officer's presentation to the council, no misuse of public position within the terms of s. 112.313(6) was present.

QUESTIONS:

1. Does the Code of Ethics for Public Officers and Employees, part III, Ch. 112, F. S., govern the conduct of an officer or employee of a municipality located within a charter county, when the county has passed an ordinance which regulates conflicts of interest on the part of county and municipal officers and employees?

2. Does the Code of Ethics for Public Officers and Employees prohibit a member of a municipal board of adjustment who owns land within the city from being employed part time to help prepare the city's land-use plan?

3. Does the Code of Ethics for Public Officers and Employees prohibit a member of a municipal board of adjustment who has been employed part time to assist in the preparation of the city's land-use plan from addressing the city council concerning the proposed density of residential development of an area of the city which includes property owned by him?

Question 1 is answered in the affirmative.

In your letter of inquiry you advise that Broward County Ordinance 75-6, as amended by Ordinance 75-11, provides standards of conduct regarding conflicts of interest which purportedly apply to county and municipal officials and employees, including officials and employees of the City of Plantation. Section 26-68, Broward County Code. In light of this ordinance, you question whether the Code of Ethics for Public Officers and Employees contained in part III of Ch. 112, F. S., would govern the conduct of an officer or employee of the City of Plantation.

We note first that Broward County is a charter county. With respect to the powers of such a county, the State Constitution provides:

CHARTER GOVERNMENT. Counties operating under county charters shall have all powers of local self- government not inconsistent with general law, or with special law approved by vote of the electors. The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law. The charter shall provide which shall prevail in the event of conflict between county and municipal ordinances. [Section 1(g), Art. VIII, State Const.; emphasis supplied.]

The restriction on counties contained in this provision of the constitution also appears in s. 125.01, F. S., which provides certain home rule powers and duties for county governing bodies.

Thus, it appears that in the event a county ordinance is inconsistent with general law, the general law will control. The tests for determining when such an inconsistency occurs have been set forth by the courts of this state. See, e.g., Rinzler v. Carson, 262 So.2d 661 (Fla. 1972), State ex rel. Dade County v. Brautigam, 224 So.2d 688 (Fla. 1969), and Townley v. Marion County, 343 So.2d 1312 (1 D.C.A. Fla., 1977), cert. denied, 354 So.2d 982. However, while a general law may be impliedly repealed by another general law or by a local law passed by the Legislature (see 30 Fla. Jur. Statutes ss. 158 and 166), it appears that in no event would a general law be superseded or impliedly repealed by a county ordinance.

The Code of Ethics for Public Officers and Employees is a general law which is intended to and does apply to officers and employees of counties, cities, and other political subdivisions of the state. Section 112.311(5) and (6), F. S. 1977; Oldham v. Rooks, 361 So.2d 140, 142 (Fla. 1978). In addition, the Florida Supreme Court has stated:

It is apparent that by Chapter 67-469, Laws of Florida [the original enactment of the Code of Ethics], the legislature intended to deal pervasively with the subject matter of conflict between the official duties and private interests of public officials and employees. [Oldham v. Rooks, supra, at p. 142.]

Accordingly, while we express no opinion as to the validity of Ordinance 75-6, as amended, or any provision thereof, it is our opinion that the Code of Ethics is applicable to officers and employees of the City of Plantation.

Question 2 is answered in the negative.

The following statement of facts has been prepared from the materials which you enclosed with your letter of inquiry.

In 1973 a partnership in which Mr. Ostrau has a 6 percent ownership interest acquired title to a parcel of land consisting of nearly 8 acres in an unincorporated section of Broward County. This parcel has been owned continuously by the partnership since that time. Subsequent to the annexation of this and surrounding land into the City of Plantation, Mr. Ostrau was appointed to the city board of adjustment, a position which he continues to hold. In early 1978, the city was reviewing its 1975 land-use plan to determine its conformity with the county's land-use plan as part of the process under which the city would certify its plan to the county for inclusion in the final county land-use plan required by the county charter and Ch. 163, F. S. As part of this review, Mr. Ostrau was hired by the city administrator to work with personnel in the city building department to prepare statistical information on the permitted intensity of development allowed by the two plans. For this part-time employment Mr. Ostrau was paid $3.52 per hour for a period of several months for a total of approximately $288 in compensation.

We perceive two issues under this set of circumstances: first, whether there was a violation of the Code of Ethics when a member of the city board of adjustment was hired by the city to assist in the preparation of its land-use plan; and, secondly, whether there was a violation of the Code of Ethics when a city landowner was hired by the city to assist in the preparation of its land-use plan.

We note at the outset that s. 112.313(10), F. S., which prohibits a person from being employed by a municipality while also holding office as a member of its governing board, does not apply to this situation because the board of adjustment is not the governing board of the city. On point, however, is the following provision of the Code of Ethics:

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. [Section 112.313(3), F. S. 1977; emphasis supplied.]

Thus, the subject board member apparently was prohibited from privately selling his services to the city. However, an exemption to the above-quoted provision where the total amount of the subject transaction does not exceed $500 became effective June 24, 1977. Section 112.313(12)(f), F. S. 1977. Previously we have interpreted this provision to exempt a total of not more than $500 worth of business within any calendar or fiscal year. See CEO 77-182. Inasmuch as only $288 in compensation was received by the subject board member for his services to the city, this exemption would apply and no conflict would have been created.

Nor do we believe that there was a violation of the Code of Ethics when a person who owned land within the city was employed by the city to assist in developing its land-use plan. Were there a prohibited conflict of interest in this situation, no landowner in the city would be entitled to assist in the drafting or approval of the city's land-use plans -- a situation which surely was not the intent of the Legislature when it enacted the Code of Ethics. See CEO 75-217A.

Accordingly, we find that the Code of Ethics did not prohibit the subject board of adjustment member who owns land within the city from being employed part time to help prepare the city's land-use plan.

Question 3 is answered in the negative.

The following facts also are compiled from the materials you included with your letter of inquiry.

In June of 1978 the city council received the recommended revisions in the city land-use plan from the city planner. In this plan, as initially proposed to the council, most of the area surrounding the parcel in which Mr. Ostrau owns an interest was coded to permit a density of 10 units per acre, although one parcel of property was recommended at 1 unit per acre. During discussion with a real estate representative regarding that property, the council initially determined that the entire area, including the subject parcel, would be coded to a residential usage of 5 units per acre. In addition, two other changes in the recommended plan were made at that time. At a subsequent meeting of the city council on the proposed land-use plan, a discussion ensued concerning the coding of the area surrounding the subject parcel and, during this discussion, Mr. Ostrau was recognized to speak. At that time Mr. Ostrau identified himself by name but did not identify himself as a member of the city board of adjustment or indicate that he owned an interest in a parcel of land within the area which was being discussed. Additionally, Mr. Ostrau's role in helping to prepare the proposed land-use plan was not brought out until toward the end of his comments. As it appears from a transcript of that meeting, the gist of Mr. Ostrau's comments was that by coding the area under discussion for a density of 5 units per acre when the county plan would have allowed 10 units per acre, the city was handicapping itself needlessly; if the city adopted the figure of 5 units per acre on its land-use plan and subsequently wished to allow a density of 10 units, the plan would have to be amended -- apparently a complicated process since it would have been approved by the city and would have become part of the county land-use plan. Instead, Mr. Ostrau argued for planning the area at 10 units per acre, which would allow a zoning of the area at a lesser figure if the city so desired; the zoning figure, if lower than the land-use plan figure, would control and would be solely within the city's power to change.

At a subsequent city council meeting additional property owners within the area under discussion requested the council to reconsider its land-use density, and the council revised that area from 5 to 10 units per acre. Minutes of that portion of the city council meeting indicate that numerous arguments were made by council members and affected property owners regarding the area in question; apparently no one other than the city planner employed the same argument made by Mr. Ostrau at the earlier meeting. The remarks of council members largely dwelt on the question of fairness to landowners if the permitted density of the area were lowered to 5 units per acre. Mr. Ostrau did not speak at that meeting or at the later city council meeting at which the land-use plan ordinance finally was adopted.

In a telephone conversation with our staff, Mr. Ostrau advised that his participation in the preparation of the land-use plan was purely mathematical, consisting of multiplying the density for a given portion of the city under the city land-use plan by the area of that portion of the city and comparing the resulting number of units with the number of units allowed by the county land-use plan. He also stated that his ownership of the subject parcel of land was disclosed on the financial disclosure statement which he was required to file as a member of the board of adjustment. The present city zoning of that subject parcel, Mr. Ostrau advised, is 15 units per acre.

At the outset, we wish to reiterate that no public officer or employee is prohibited from appearing before any board in an individual capacity as a private citizen, representing his own, personal interests. See CEO 77-119, in which we found that a member of the governing board of a water management district could appear, in his own behalf, before the district board to object to the issuance of a consumptive use permit which in his opinion would adversely affect his property. Nevertheless, there are two provisions of the Code of Ethics which should be addressed under the circumstances presented above.

The Code of Ethics provides in part as follows:

DISCLOSURE OR USE OF CERTAIN INFORMATION. -- No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), F. S. 1977.]

It is apparent that the information to which the subject board of adjustment member referred when he addressed the meeting of the city council was not gained by virtue of his position on the board of adjustment but, rather, was gained by virtue of his employment to assist in the preparation of the plan. As you have advised, the board of adjustment had no role either in approving or considering and giving advice on the proposed land-use plan.

Insofar as the above-quoted provision was applicable to the subject board of adjustment member in his capacity as a part-time employee (or former part-time employee), it appears that the arguments he made at the council meeting were based upon information available to members of the general public. His remarks at the meeting relate directly to the intent of those persons who prepared the proposed land-use plan. That intent is expressed fully in the minutes of the May 11, 1978, public meeting of the city comprehensive planning board, at which that board adopted the proposed land-use plan, by members of the board and planning staff. In addition, remarks by the city planner at the council meeting during which the density of the area was changed to 5 units per acre and at the subsequent meeting during which the density was increased to 10 units per acre also reflect support for the policy of retaining the higher density for the land-use plan to allow greater flexibility for zoning in the future.

Even if this information were not available to members of the general public, it does not appear that this information was used for the personal gain or benefit of Mr. Ostrau. It is the density permitted by the zoning which will control the density which is allowed on the subject parcel. The zoning on that parcel is 15 units per acre, a figure which is reduced by the plan. It will be the city's decision on the zoning of the subject parcel which will provide the determinative density; if, as is possible, the parcel is zoned at less than 10 units per acre, that density will control. In short, any gain or benefit which might have inured to Mr. Ostrau through the council's decision to leave the density of the area at 10 units per acre, as originally proposed, must be considered too remote and too speculative to constitute a violation of the above-quoted provision because it is ultimately contingent upon the decision made in the zoning process.

The second provision of the Code of Ethics which should be addressed under these circumstances provides as follows:

MISUSE OF PUBLIC POSITION. -- No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), F. S. 1977.]

Clearly, Mr. Ostrau's position on the board of adjustment was not related in any way to the circumstances presented here. With respect to his position as a part-time employee of the city, that employment was terminated before his remarks at the council meeting. Therefore, neither his official position nor any property or resource within his trust was involved; therefore, this provision of the Code of Ethics is inapplicable.

While we agree with you that it would have been preferable for Mr. Ostrau to have disclosed at the city council meeting his interest in property located within the area under discussion, there is no provision of the Code of Ethics which would require such a disclosure at the meeting. Accordingly, we find that the Code of Ethics for Public Officers and Employees did not prohibit the subject board of adjustment member who had been employed part time to assist in the preparation of the city's land-use plan from addressing the city council regarding the proposed land-use density of an area of the city which included property in which he owned an interest.