CEO 88-69 -- October 19, 1988

CONFLICT OF INTEREST

CITY PLANNING COMMISSION MEMBER ASSOCIATED WITH

REAL ESTATE FIRM DOING BUSINESS WITH THE CITY

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

SUMMARY:

No prohibited conflict of interest exists where a city planning commission member is associated with a real estate firm which is doing business with the city by way of contractual agreements with individuals serving as real estate appraisers. While Section 112.313(7)(a), Florida Statutes, prohibits a public officer from having a contractual relationship with a business entity doing business with his agency, this provision would not be violated as the real estate firm is doing business with the city rather than with the planning commission.

QUESTION:

Does a prohibited conflict of interest exist where a city planning commission member is associated with a real estate firm which has contractual relationships with individuals who provide real estate appraisal services for a fee to the city?

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

In your letter of inquiry you advise that .... serves as a member and Chairman of the Haines City Planning Commission. The Planning Commission serves as an advisory body to the City Commission with respect to zoning, development, comprehensive planning, and land use matters. You further advise that the Planning Commission member is a licensed real estate broker and is associated with a local real estate firm. When he acts as the real estate broker or agent for a real estate transaction, the commission is paid to the real estate firm, which retains a portion of that commission in consideration of office space and certain services which it provides. The balance is paid to the Planning Commission member by the real estate firm. The Planning Commission member does not share in the corporate profits of, nor is he a stockholder or officer of, the real estate firm.

The real estate firm also has contractual relationships with individuals who provide real estate appraisal services. Two of these individuals have been asked by the City to prepare appraisal reports on parcels of property which the City was or is contemplating purchasing or trading for other property. Some of these reports have been prepared and submitted to the City, while others are in the process of being prepared. The City has been billed for the completed appraisal services. When paid by the City, the real estate firm will distribute a portion of the fees to the appraisers.

You question whether a prohibited conflict of interest is created under the Code of Ethics for Public Officers and Employees by virtue of these circumstances. You note that the member receives no compensation as the result of the payment of an appraisal fee and that he did not participate in the selection of the appraisers, the preparation of the appraisal reports, and the determination of the fees to be paid for the appraisal services.

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).]

This provision prohibits a public officer from having a contractual relationship with a business entity which is doing business with, or is subject to the regulation of, his agency. We previously have advised that Section 112.313(7)(a) would prohibit a public officer from being an associate of a real estate firm which is doing business with his agency. See CEO 84-88. Under the facts you have presented, however, it does not appear that the subject firm is doing business with the Planning Commission. Nor does it appear that the real estate firm would be subject to the regulation of the Planning Commission.

Accordingly, we find that under the circumstances presented no prohibited conflict of interest exists where the subject Planning Commission member is associated with a real estate firm which has independent contractor agreements with individuals who provide real estate appraisal services to the City.