CEO 82-13 -- March 4, 1982

VOTING CONFLICT OF INTEREST

WATER CONTROL DISTRICT BOARD MEMBER EMPLOYED BY CORPORATION DONATING LAND TO DISTRICT

To: Mr. Madison F. Pacetti, Attorney for East County Water Control District

SUMMARY:

No prohibited conflict of interest would exist were a Water Control District to accept a donation of land, with the possibility of reverter, from a corporate land owner which employs a member of the District Board. Section 112.313(7), Florida Statutes, prohibits a public officer from being employed by a business entity which is doing business with his agency. Here, however, the employer is not "doing business" with the District by virtue of the donation of property.

A voting conflict of interest would be created under Section 112.3143, Florida Statutes, if the Water Control District Board member were to vote to accept the donation of land, with the possibility of reverter, from the corporate land owner which employs him. Under the statute, the Board member would have a private interest in the matter since it involves his employer. In addition, his employer would stand to specially benefit by the Board's acceptance of the donation, since the employer's taxes will be reduced while retaining the right to reacquire the property without cost in the future under the reverter clause.

QUESTION 1:

Would a prohibited conflict of interest exist were a county water control district to accept a donation of land, with the possibility of reverter, from a corporate landowner which employs a member of the district board?

This question is answered in the negative.

In your letter of inquiry you advise that Mr. Garrison T. Long is a member of the Board of Supervisors of the East County Water Control District, a special taxing district created by Chapter 63-1549, Laws of Florida, for the purposes of water control and drainage, among others. The District includes approximately 50,000 acres in Lee and Hendry County, you advise. Among the water control projects with which the District is involved, there is one project in connection with which approximately 400 acres have been required by various environmental agencies such as the South Florida Water Management District and the Department of Environmental Regulation to be preserved from use for water quality and other purposes. You advise that the District has been offered this property without cost by the corporate landowner, by a deed which contains a reverter provision allowing the former landowner to take title to the property at no cost by the exercise of a written option at any time after five years from the deed's recording.

The Board has unanimously agreed to accept the land subject to the reverter, you advise, as it is beneficial for its water control and water quality. It is proposed that the District will enter into an arrangement with the State Department of Forestry to use the land for environmental purposes. If the District obtains title to the property as a governmental agency, the property will be exempt from all county and ad valorem taxes, as well as the District's special assessment. Thus, this will increase the tax burden on other property owners. Finally, you advise that Mr. Long is an employee of the corporate landowner.

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. (1981).]

This provision prohibits a public officer from being employed by a business entity which is doing business with his agency. However, we do not find that the board member's employer is doing business with the Water Control District. In our view, the phrase "doing business" contemplates an exchange of consideration, such as money, property, or services, rather than a donation of property as proposed in this instance. Nor do we find a prohibited conflict of interest under any of the other prohibitions contained in Section 112.313(7)(a), under the circumstances you have described.

Accordingly, we find that no prohibited conflict of interest would exist were the Water Control District to accept the donation of land from the corporate landowner which employs the subject District Board member. The fact that the transfer of the land to the District would shift the tax burden to other lands within the District does not present any issue under the Code of Ethics.

QUESTION 2:

Would a voting conflict exist where a water control district board member votes to accept a donation of land, with the possibility of reverter, from the corporate landowner which employs him?

This question is answered in the affirmative.

With respect to voting conflicts of interest, the Code of Ethics 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 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. (1981).]

Under this provision, a public officer must file a Memorandum of Voting Conflict (CE Form 4) if he votes upon a measure in which he has a private interest and which inures to the special gain of a principal by whom he is retained. We are of the opinion that a public officer has a private interest in a matter coming before his board which involves his employer. In addition, it appears that the corporate landowner stands to specially benefit by the Board's action in accepting the donation of land, since the landowner's taxes will be reduced while it still will have the right to reacquire the property without cost in the future.

Accordingly, we find that the subject Board member should file a Memorandum of Voting Conflict in accordance with Section 112.3143, Florida Statutes, following his vote to accept the transfer of the subject property.