CEO 80-49 -- July 18, 1980

CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST

COUNTY COMMISSIONER PUBLISHING REAL ESTATE GUIDE WHICH ADVERTISES FOR LOCAL REALTORS AND DEVELOPERS

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(7)(a), F. S., prohibits a public officer from having a contractual relationship with a business entity which is subject to the regulation of his agency. In deciding a recent complaint, the Commission on Ethics found that a developer was not subject to the regulation of the governing board of a political subdivision when the active enforcement of detailed ordinances specifying the manner and mode of land development and building construction within the political subdivision was made through review of plans, permitting, and inspections delegated to various boards and departments. In a county with the same regulatory system, no prohibited conflict of interest is deemed to be created when a county commissioner publishes a real estate guide which advertises property for sale by realtors and developers. Neither is there a continuing or frequently recurring conflict, as further prohibited by s. 112.313(7)(a), considered to be created by such activity. The county commissioner is cautioned, however, to avoid the solicitation of advertising from persons with business before the county commission and from persons whose interests are anticipated to come before the commission in the near future.

Under s. 112.3143, F. S., a public officer is required to file a memorandum of voting conflict if he votes in his official capacity upon a measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained. Although the county commissioner may be said to have a personal, private, or professional interest in a matter brought before the commission by a person or business advertising in his real estate guide, it does not appear that such matters would inure to his private gain or to the gain of a principal by whom he is retained. Accordingly, no voting conflict of interest would be created were he to vote on matters presented by such persons.

QUESTIONS:

1. Does a prohibited conflict of interest exist when a county commissioner publishes a real estate guide which advertises property for sale by realtors and developers?

2. Is a voting conflict of interest created when a matter is brought before the board of county commissioners of which I am a member by a person or business advertising in the real estate guide which I publish?

Question 1 is answered in the negative.

In your letter of inquiry you advise that you are a member of the Martin County Board of County Commissioners. You also advise that both you and your wife are licensed real estate agents and have published a real estate guide monthly for the past several years. You further advise that the majority of the advertisements and realty listings published in the magazine result from contracts entered into with advertisers; when extra space exists in an issue of the magazine, you and your wife contact potential or former advertisers, using discretion not to solicit advertisements from clients with pending business before the board. However, you advise, occasionally clients who in the past have advertised with the magazine or who are using the service have business before the board. Finally, you advise that, among its various responsibilities, the county commission acts upon petitions to rezone certain areas, proposals to be included in a comprehensive plan for future land use, and applications for planned unit developments.

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), F. S.]

This provision prohibits a public officer from having a contractual relationship with a business entity which is subject to the regulation of his agency. Among the advertisers with whom you contract, there are local realtors. However, as you have advised in a telephone conversation with our staff that realtors in the county are subject to only a nonregulatory occupational license from the county, we find that realtors are not regulated by the board of county commissioners. Realtors, of course, are regulated by the Florida Board of Real Estate under ch. 475, F. S. In a telephone conversation with our staff, you advised that you also have contracted with local developers to publish advertisements for their developments. In a recent case, we found that a developer was not subject to the regulation of the governing board of a political subdivision when the active enforcement of detailed ordinances specifying the manner and mode of land development and building construction within the political subdivision was made through review of plans, permitting, and inspections delegated to various boards and departments of the political subdivision. It was these boards and departments, we found, which directly regulated construction and development. Complaint No. 79-74, In re John Zerweck. In a telephone conversation with our staff, you advised that this also is the situation in Martin County. Therefore, we find that developers within the county are not subject to the regulation of the county commission as contemplated by s. 112.313(7)(a).

Section 112.313(7)(a) also prohibits a public officer from having any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of public duties or that would impede the full and faithful discharge of his public duties. Thus, in the Zerweck case we found that the subject city commissioner's employment as a development coordinator for one of the largest commercial developers within the city presented a continuing or frequently recurring conflict with his public duties. However, under the facts you have presented, it does not appear that your contracting with various local realtors and developers to advertise real estate for sale in your real estate guide would either present a continuing or frequently recurring conflict of interest or impede the full and faithful discharge of your duties as a county commissioner.

Accordingly, we find that no prohibited conflict of interest exists under the Code of Ethics when you publish a real estate guide which advertises property for sale by realtors and developers while serving as a member of the county commission. However, as you apparently are aware, the solicitation of advertisers who have business pending before the board or anticipated to come before the board in the near future can give the appearance of a misuse of public position. For this reason, we caution you to avoid the solicitation of advertising from persons with business before the board and from persons whose interests are anticipated to come before the board in the near future.

Question 2 is answered in the negative.

With respect to voting, the Code of Ethics for Public Officers and Employees provides as follows:

Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, 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. [Section 112.3143, F. S.]

Under this provision, a public officer is required to file a memorandum of voting conflict if he votes in his official capacity upon a measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained.

Although you may be said to have a personal, private, or professional interest in a matter which is brought before the county commission by a person or business advertising in your real estate guide, it does not appear to us that such matters would inure to your private gain or to the special private gain of a principal by whom you are retained. We see no reason to believe that you would stand to derive any private gain from a matter brought before the county commission by an advertiser, when your sole interest in the matter is your contractual relationship to provide advertising. Nor does it appear that persons advertising in your real estate guide are principals by whom you are retained. Rather, they would seem to be persons with whom you have merely a contractual relationship. See CEO's 76-209 and 78-96.

Accordingly, we find that no voting conflict of interest is created when a matter is brought before the board of county commissioners of which you are a member by a person or business advertising in the real estate guide which you publish.