CEO 87-64 -- September 16, 1987

CONFLICT OF INTEREST; VOTING CONFLICT

COUNTY HOUSING FINANCE AUTHORITY MEMBER

EMPLOYED AS ASSISTANT STATE ATTORNEY

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

SUMMARY:

No prohibited conflict of interest exists under Section 112.313(7), Florida Statutes, where a member of a county housing finance authority is employed as an assistant state attorney, despite the fact that the state attorney is required to represent the State in bond validation proceedings involving housing finance bonds. Here, the assistant state attorney has no private interest in the bonds and does not become involved in the validation proceedings. Further, the State Attorney has no actual interest adverse to the interest of the authority.

In addition, the housing finance authority member would not be prohibited by Section 112.3143, Florida Statutes, from voting on matters relating to bond issues of the authority because of his employment as an assistant state attorney. The assistant state attorney has no private interest in the bond issues, and his employer is a public agency rather than a private entity.

QUESTION 1:

Does a prohibited conflict of interest exist where you, a member of a county housing finance authority, are employed as an assistant state attorney?

This question is answered in the negative.

In your letter of inquiry you advise that recently you were appointed as a member of the Lee County Housing Finance Authority and that you are employed as an Assistant State Attorney in the Office of the State Attorney for the 20th Judicial Circuit. You advise that the Authority assists the public and private sectors in the construction or refurbishing of residential dwelling units by issuing tax free bonds and using the funds derived from the bonds for construction in connection with the project. The circuit court must approve a bonding proposal prior to bonds being issued.

Under Chapter 75, Florida Statutes, agencies authorized by law to issue bonds may seek a determination of their authority to issue bonds and of the validity of a bond issue by filing a complaint in circuit court. In these proceedings, the State Attorney is required to represent the State by appearing and showing why the bonds should not be validated, if there is a defect in the proceedings, or if the bonds otherwise are not valid. The State Attorney also is authorized to appeal the circuit court's judgment to the Supreme Court.

You advise that you are not assigned as an Assistant State Attorney to handle bond validation proceedings. You question whether there is a conflict of interest in your serving in both of these capacities with respect to new bond issues as well as bond issues which were approved by the court prior to your appointment to the Authority. During the past three calendar years, you advise, the Authority had two bond issues which were subject to bond validation proceedings prior to your appointment to serve on the Authority. You do not anticipate a substantial increase in the frequency of the Authority's bond issues.

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 (1985).]

The first part of this provision prohibits you from having any employment with an agency which is subject to the regulation of, or is doing business with, the Housing Finance Authority. However, it is clear that under the circumstances presented the Office of the State Attorney is neither regulated by nor doing business with the Authority.

The second part of Section 112.313(7)(a), Florida Statutes, prohibits you from having any employment which would create a continuing or frequently recurring conflict of interest or which would impede the full and faithful discharge of your public duties as a member of the Authority. We are of the opinion that this provision also does not apply here. The term "conflict of interest" is defined in Section 112.312(6), Florida Statutes, to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." In Zerweck v. State Commission on Ethics, 409 So. 2d 57, 61 (Fla. 4th DCA 1982), the Court concluded that Section 112.313(7)(a)

requires an examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'

We do not perceive that you have any private interest with respect to bonds which may be issued by the Authority which would conflict with your responsibilities as a member of the Authority. In addition, we note that as an Assistant State Attorney you do not become involved in the bond validation proceedings. Finally, however vigorously the State Attorney may challenge the validity of a bond issue, it does not appear that the State Attorney has any actual interests which would be considered to be adverse to the interests of the Authority. Rather, the State Attorney has a statutory duty to participate in bond validation proceedings in court and does not stand to gain or lose from the determination of the validity of the bond issue. Therefore, we conclude that considerations relating to your employment with the State Attorney would not "tempt" you to disregard your duties as an Authority member.

Accordingly, we find that no prohibited conflict of interest exists where you serve both as an Assistant State Attorney and as a member of the County Housing Finance Authority.

QUESTION 2:

Are you, as a member of a county housing finance authority, prohibited by Section 112.3143, Florida Statutes, from voting on matters relating to past or future bond issues of the authority because of your employment as an assistant state attorney?

This question also is answered in the negative.

With respect to voting conflicts of interest for local officials, Section 112.3143(3), Florida Statutes, provides:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one- acre, one-vote basis is not prohibited from voting. [Section 112.3143(3), Florida Statutes (1985).]

This provision requires you, as a member of the Housing Finance Authority, to abstain from voting on measures which inure to your special private gain or to the special gain of a principal, other than an agency, by whom you are retained. As we indicated above, we do not perceive that you have a private interest in matters relating to bond issues of the Authority. Moreover, even if matters relating to bond issues of the Authority somehow could be said to benefit the State Attorney, the State Attorney clearly is an "agency" as defined in Section 112.312(2), Florida Statutes.

Accordingly, we find that you are not prohibited because of your employment as an Assistant State Attorney from voting as a member of the Authority on matters relating to proposed bond issues or relating to bond issues which were approved prior to your appointment to serve on the Authority.