CEO 88-51 -- July 28, 1988

CONFLICT OF INTEREST

COUNTY COMMISSIONER SELLING LAND TO COUNTY

FOR USE AS LANDFILL

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

SUMMARY:

Under Section 112.313(3), Florida Statutes, a county commissioner is prohibited from acting in a private capacity to sell any realty to the county. However, certain exemptions to this prohibition have been created in Section 112.313(12), Florida Statutes. Under the circumstances presented, the exemption for sealed competitive bidding contained in Section 112.313(12)(b) would not be applicable as the county commissioner participated in determining the bid specifications. However, the exemption for a sole source of supply contained in Section 112.313(12)(e) could be applicable where the county sought bids for landfill property once, receiving no eligible bids, if the county sought bids a second time, the commissioner submits a bid to sell his property to the county, and his bid is the only one which meets the necessary criteria for use as a landfill. Alternatively, as noted in CEO's 76-7 and 78-8, the county could condemn the commissioner's property through eminent domain proceedings. The commissioner should abstain from voting and follow the requirements of Section 112.3143(3), Florida Statutes, if his property is under consideration for purchase or condemnation.

QUESTION:

Would a prohibited conflict of interest be created were you, a county commissioner, to sell land to the county for use as a landfill?

Your question is answered in the affirmative, subject to the exceptions noted below.

Through your letter of inquiry we have been advised that you serve as a member of the Highlands County Board of County Commissioners and that the County is seeking to purchase a new landfill to replace an existing landfill which will be operative for only about two more years. The County retained an engineering firm for advice in the selection process. The firm recommended, and the County Commission adopted, an evaluation system which included seven pass/fail criteria and a ranking system to evaluate properties which met the seven criteria.

The pass/fail criteria related to: the capacity of the site, with a requirement of at least 600 acres of usable area including area for wetlands mitigation and buffer zones; an aquifer recharge area restriction, including limestone and gravel pits; a minimum distance from surface waters; Federal Aviation Administration airport hazard restrictions; and three separate minimum distance requirements from schools, institutions, and recreational facilities, from a State Park, and from areas of a certain residential density. Using these criteria, the County requested public bids from property owners. Only one bid was received as a result of this process and that bid clearly did not meet three of the seven pass/fail criteria.

Since then, you advise, you have been contacted by the County about the possibility of selling approximately 640 acres of your ranch to the County for use as a landfill. It appears that your property would meet the pass/fail criteria. If the Board again seeks bids for landfill property, you question whether you may submit a bid.

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.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1987).]

This provision prohibits a public officer from acting in a private capacity to sell any realty to the political subdivision which he serves. Therefore, this provision would prohibit you from selling land to the County for use as a landfill.

However, Section 112.313(12), Florida Statutes, contains a number of exemptions to the prohibition of Section 112.313(3). Of those exemptions, the following three are pertinent where:

The business is awarded under a system of sealed, competitive bidding to the lowest or best bidder and:

1. The official or his spouse or child has in no way participated in the determination of the bid specifications or the determination of the lowest or best bidder;

2. The official or his spouse or child has in no way used or attempted to use his influence to persuade the agency or any personnel thereof to enter such a contract other than by the mere submission of the bid; and

3. The official, prior to or at the time of the submission of the bid, has filed a statement with the Department of State, if he is a state officer or employee, or with the Clerk of the Circuit Court of the county in which the agency has its principal office, if he is an officer or employee of a political subdivision, disclosing his, or his spouse's or child's, interest and the nature of the intended business. [Section 112.313(12)(b), Florida Statutes (1987).]

An emergency purchase or contract which would otherwise violate a provision of subsection (3) or subsection (7) must be made in order to protect the health, safety, or welfare of the citizens of the state or any political subdivision thereof. [Section 112.313(12)(d), Florida Statutes (1987).]

The business entity involved is the only source of supply within the political subdivision of the officer or employee and there is full disclosure by the officer or employee of his interest in the business entity to the governing body of the political subdivision prior to the purchase, rental, sale, leasing, or other business being transacted. [Section 112.313(12)(e), Florida Statutes (1987).]

Section 112.313(12)(b) would permit you to sell property to the County if the sale is awarded under a system of sealed, competitive bidding to the lowest or best bidder and if three additional requirements are met. The first requirement is that you in no way can have participated in the determination of the bid specifications or the determination of the lowest or best bidder. In a telephone conversation with our staff, you advised that you participated as a member of the County Commission in adopting the criteria recommended by the consulting engineering firm, as at that time you had no idea that you could be involved privately. For this reason, we find that the competitive bid exemption would not be applicable.

Section 112.313(12)(d) creates an exemption where an emergency purchase must be made in order to protect the health, safety, or welfare of the citizens of the County. In CEO 83-76 we advised that this exemption would permit a city to purchase land for the construction of a new sewer plant from an estate of which the city mayor was the personal representative and a beneficiary. There, the City was under an order from the Department of Environmental Regulation and from the U.S. Environmental Protection Agency directing the City to commence construction of the sewer plant within a seven month period. Although circumstances in the County here may at some time rise to the level of an emergency necessitating the County to take some action to acquire a landfill, we do not conclude based on the circumstances presented now that the County is faced with an emergency of such a nature as to require the purchase of your property.

Section 112.313(12)(e) authorizes a county to purchase from an officer or employee of the county who is the only source of supply within the county so long as full disclosure is made to the county commission. We have promulgated Commission on Ethics Form 4A, Disclosure of Business Transaction, Relationship, or Interest, for use in making this disclosure. We are of the opinion that if the County seeks bids for landfill property a second time and if you are the only bidder whose property meets the pass/fail criteria, you legitimately could be considered to be a sole source of supply within the County for suitable and available landfill property. If these circumstances occur and if you make the appropriate disclosure, we find that you may sell your property to the County. As an alternative, please note that we have advised that Section 112.313(3) would not prohibit a city from obtaining land owned by a city commissioner or by a city attorney through condemnation or eminent domain proceedings. See CEO 76-7 and CEO 78-8.

Regarding your participation in voting on the acquisition of landfill property, the Code of Ethics provides in relevant part:

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 (1987).]

Obviously, you would be required by this provision to abstain from voting and to make the appropriate disclosures while your property is under consideration for purchase or condemnation by the County.

Accordingly, we find that a prohibited conflict of interest would be created were you to sell land to the County for use as a landfill, subject to the two exceptions noted above.