CEO 88-5 -- February 4, 1988

CONFLICT OF INTEREST

DEPARTMENT OF NATURAL RESOURCES ATTORNEY

SERVING ON CAPITOL CENTER PLANNING COMMISSION

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

SUMMARY:

No prohibited conflict of interest exists where an attorney for the Department of Natural Resources, who serves as counsel for the Division of State Lands and the Board of Trustees of the Internal Improvement Trust Fund, also serves as a member of the Capitol Center Planning Commission. Under the circumstances presented the Department, the Division, and the Board of Trustees are not subject to the regulation of the Commission, and no continuing or frequently recurring conflict of interest exists.

QUESTION:

Does a prohibited conflict of interest exist where you, an attorney for the Department of Natural Resources who serves as counsel for the Division of State Lands and the Board of Trustees of the Internal Improvement Trust Fund, also serve as a member of the Capitol Center Planning Commission?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that you are employed by the Department of Natural Resources as a Senior Attorney, acting as an attorney for the Division of State Lands and the Board of Trustees of the Internal Improvement Trust Fund. In this capacity, you provide representation in litigation and render legal opinions regarding the ownership and management of State land. The Division serves as staff for the Board of Trustees (the Governor and Cabinet), who act as trustees for all State owned lands in Florida. The Trustees approve the acquisition and sale of all land on behalf of the State. In addition, they approve leases of land to private entities and to government agencies.

You also advise that since January of 1985 you have served as a City of Tallahassee appointee to the Capitol Center Planning Commission. As created within the Department of General Services, the Planning Commission is composed of four members appointed by the Governor, two members appointed by the Tallahassee City Commission, and one member appointed by the Leon County Board of County Commissioners. Under Sections 272.12 and 272.121, Florida Statutes, the Planning Commission is the sole planning and zoning authority within the Capitol Center Planning District and is responsible for design approval of construction on public and private lands within the District.

With the exception of the Supreme Court and the Game and Fresh Water Fish Commission, you advised, State agencies lease land from the Board of Trustees, with the Department of General Services managing any construction on the property. The Planning Commission determines whether the construction meets zoning regulations and design criteria. The agency which leases the land is responsible for compliance with the regulations and restrictions of the Planning Commission. The Department of General Services hires the architects for a particular project, and it is the architects who come before the Planning Commission.

Finally, you stated that the Division of State Lands does not have any business which comes before the Commission and that there is no interaction between the Division's staff and the Commission. You also advised that your role as attorney for the Division has not intersected with the Planning Commission during the time you have been serving in both capacities.

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 (1987).]

Although this provision does not prohibit a public employee from holding public office, it does contain limitations on the employment which a public officer may have. Therefore, we address your situation from the perspective of whether your employment with the Department of Natural Resources conflicts with your responsibilities as a member of the Planning Commission.

The first portion of Section 112.313(7)(a) would prohibit a Planning Commission member from being employed by an agency which is subject to the regulation of, or is doing business with, the Planning Commission. Under the circumstances presented, however, it does not appear that the Department, the Division, or the Board of Trustees either is regulated by or is doing business with the Planning Commission. Rather, as you have explained the situation, responsibility for matters coming before the Planning Commission lies with the agency which leases land from the Board of Trustees and possibly with the Department of General Services.

Nor do we find that your employment would create a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of your duties as a Planning Commission member, in violation of the second portion of Section 112.313(7)(a). In this regard, we note particularly that there has been no interaction between the Planning Commission and the staff of the Division and that your role as attorney for the Division has not involved the Planning Commission.

Accordingly, we find that no prohibited conflict of interest exists between your employment as a Senior Attorney for the Department of Natural Resources and your service on the Capitol Center Planning Commission.