CEO 81-45 -- July 16, 1981

CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST

COUNTY COMMISSIONER JOINTLY LIABLE ON PROMISSORY NOTE WITH PERSON REQUESTING PERMIT FROM COUNTY COMMISSION

To: Mr. Jerry M. Bowmer, Hillsborough County Commissioner

SUMMARY:

No prohibited conflict of interest was created where a county commissioner and another individual borrowed money for the purchase of land to be used as a borrow pit requiring a permit from the county commission. Although the county commissioner had a contractual relationship as a joint maker of the promissory note with an individual who might be considered to have been subject to the regulation of the county commission by virtue of his seeking a borrow pit permit from the commission, the joint liability on the note would not interfere with the full and faithful discharge of the commissioner's public duties. As the permit application came before the county commission at one time only and the county commission apparently had no continuing regulatory authority over the manner or mode in which business was done under the permit, Section 112.316, Florida Statutes, indicates that no prohibited conflict of interest was created. In addition, no voting conflict of interest under Section 112.3143, Florida Statutes, was created where a county commissioner voted to approve a borrow pit permit requested by a corporation, the president of which was jointly liable with the commissioner on a promissory note unrelated to the property for which the permit was sought. In CEO 81-8, no memorandum of voting conflict was required to be filed after voting upon matters affecting a business partner's interest where the partnership's interests and the officer's personal interests were not involved.

Further, no voting conflict of interest was created where a county commissioner voted to approve the county's sale of borrow to a corporation, the president of which was jointly liable with him on a promissory note unrelated to the sale. Here, the commissioner had no interest in the corporation and had no personal interest in the sale of borrow by the county. Finally, no prohibited conflict of interest was created where a county commissioner was jointly liable on a promissory note with the president of a corporation which purchased borrow from the county. Although Section 112.313(7)(a), Florida Statutes, prohibits a county commissioner from having a contractual relationship with a business entity which is doing business with the commission, the commissioner did not have a contractual relationship with the corporation, but rather with the individual who was the president of the corporation.

QUESTION 1:

Did a prohibited conflict of interest exist where you, a County Commissioner, and another individual borrowed money for the purchase of land to be used as a borrow pit requiring a permit from the County Commission?

This question is answered in the negative.

In your letter of inquiry you advise that in January, 1980, you were approached by an individual concerning the possibility of your wife and his wife participating in the purchase of a parcel of real property, part of which was improved with a dwelling. The intention of the purchase was to apply for a borrow pit permit and to sell fill dirt removed from the area while at the same time renting out the dwelling located on the property. You advise that you and this individual obtained an unsecured loan from a bank, with both of you signing a promissory note under which you were jointly and severally liable. This money was used by your wives as a down-payment on the purchase of the property.

In February, 1980, the County Administrator requested that the County Commission approve the borrow pit permit requested by the individual, subject to his agreeing to install a drain on the property and agreeing to assume responsibility for any damages to the right-of-way of an adjoining road. The Commission voted to approve the permit by a vote of three to zero, as you and another Commissioner were out of the chambers. You advise that you did not have any conversations with any of the other members of the County Commission pertaining to the application, which had been handled in normal channels in a routine fashion and which did not represent any unusual situation.

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 (1979).]

This provision prohibits a public officer from having any contractual relationship with a business entity which is subject to the regulation of his agency.

In our view, you had a contractual relationship as a joint maker of the promissory note with the other individual who was liable on the note. The term "business entity" is defined in Section 112.313(3), Florida Statutes, to include not only corporations and partnerships but also proprietorships and self-employed individuals doing business in this state. Therefore, we are of the opinion that the individual who also signed the promissory note was acting as a business entity when he signed the note and when he applied for the borrow pit permit. Finally, it appears that this individual was subject to the regulation of the County Commission by virtue of his seeking the borrow pit permit from the County Commission. It is apparent from the minutes of Commission meetings that the granting of a borrow pit permit is not merely a ministerial act of the County Commission, but involves some discretion on the part of the Commission as to whether to impose any conditions on the permit and what conditions should be imposed.

However, in interpreting the provisions of the Code of Ethics we are required to consider also the following provision:

Construction. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, Florida Statutes (1979).]

In our view, your joint liability with the person requesting the borrow pit permit would not interfere with the full and faithful discharge of your public duties and would not present such a substantial conflict of interest that it should be prohibited. Under the circumstances you have presented, it appears that matters related to the permit came before the County Commission at one time only. Although there would have to have been some oversight by the County to see that the conditions of the permit were complied with, it appears that the County Commission had no continuing regulatory authority over the manner or mode in which business was done under the permit.

Accordingly, we find that no prohibited conflict of interest existed by virtue of your joint liability on a promissory note, the proceeds of which were to be used for the purchase of land for a borrow pit requiring a permit from the County Commission. In addition, for your information, there is no provision of the Code of Ethics for Public Officers and Employees which would require you to be present when a vote of the County Commission is taken upon a matter or to disclose your interest in that matter if you were not present at the time of the vote.

QUESTION 2:

Was a voting conflict of interest created where you, a County Commissioner, voted to approve a borrow pit permit requested by a corporation, the president of which was jointly liable with you on a promissory note unrelated to the property for which the permit was sought?

This question is answered in the negative.

In your letter of inquiry you advise that during the time you were jointly liable on the promissory note referenced in your first question, a borrow pit permit was sought by a corporation, the president of which was the individual who also was liable on the note. This permit related to property different from the property purchased with the proceeds of the note. You also advise that you did not have any interest in the corporation, as you were not a stockholder, director, officer, employee, or agent of the corporation.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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 interests 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, Florida Statutes (1979).]

Under this provision, a public officer who votes upon a measure in which he has a personal, private, or professional interest, and which inures to his special private gain or to the special gain of any principal by whom he is retained, is required to file a "Memorandum of Voting Conflict" (CE Form 4) disclosing his interest. In previous opinions, we have advised that this provision does not require a public officer to file a "Memorandum of Voting Conflict" when voting upon matters affecting a business partner's interest where the partnership's interests and the officer's personal interests are not involved. See, for example, CEO 81-8, a copy of which is enclosed. Similarly, under the circumstances you have described, you had no personal interest in the borrow pit permit granted to the corporation and you had no interest in the corporation.

Accordingly, we find that a voting conflict of interest was not created by your voting on a matter affecting a corporation, the president of which was jointly liable with you on a promissory note.

QUESTION 3:

Was a voting conflict of interest created where you, a County Commissioner, voted to approve the County's sale of borrow to a corporation, the president of which was jointly liable to you on a promissory note?

This question is answered in the negative.

In your letter of inquiry you advise that during the time you were liable on the promissory note referenced in the above questions, the County sought bids for the sale of borrow to be removed from a sanitary landfill operated by the County. You advise that public invitations to bid were made by publication, and that the County Commission awarded the sale to the highest bidder, which was the corporation referenced in the second question, above.

We find that the rationale of our response to your second question is equally applicable to the situation here, as you had no interest in the corporation and as you had no personal interest in the sale of borrow by the County.

Accordingly, we find that no voting conflict of interest was created where you voted to approve the County's sale of borrow to a corporation, the president of which was jointly liable with you on a promissory note.

QUESTION 4:

Was a prohibited conflict of interest created where you, a County Commissioner, and the president of a corporation purchasing borrow from the county were jointly liable on a promissory note?

This question is answered in the negative.

Section 112.313(7)(a), Florida Statutes, which is quoted above in our response to your first question, prohibits a public officer from having a contractual relationship with a business entity which is doing business with his agency. Under the circumstances you have presented, although the corporation was doing business with the County by virtue of its purchase of borrow from the County, we find that you had no contractual relationship with the corporation, although you did have a contractual relationship with the individual who was the president of the corporation. Since that individual was not doing business with the County Commission, we find that Section 112.313(7)(a) does not apply.

Accordingly, we find that no prohibited conflict of interest was created where you and the president of a corporation who was doing business with the County were jointly liable on a promissory note.