CEO 85-63 -- September 3, 1985

CONFLICT OF INTEREST

COUNTY COMMISSIONER'S SPOUSE LEASING LAND FROM COUNTY

To: Mr. Robert Bruce Snow, County Attorney, Hernando County

SUMMARY:

No prohibited conflict of interest would be created were the wife of a county commissioner to lease land from the county in an industrial park which has been developed by the county. Section 112.313(3), Florida Statutes, would prohibit the spouse of a county commissioner from leasing realty to the county. CEO's 77-167, 81-33 and 82-10 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were the wife of a county commissioner to lease land from the county in an industrial park which has been developed by the county?

This question is answered in the negative.

In your letter of inquiry you advise that Hernando County owns the County airport, which is a general aviation facility. A portion of the airport not devoted to aviation purposes has been developed by the County as a 162-acre industrial park. The park is administered by an industrial park administrator who is employed by the Board of County Commissioners. Lots within the park are leased to industrial tenants who desire to construct and operate industrial facilities.

Lots within the park are leased on a standard form of lease which has been approved by the Federal Aviation Administration, which retained certain rights over the airport when it was conveyed to the County by the Federal Government. The F.A.A. requires that any nonaviation function generate a reasonable amount of return as approved by it and requires that all proceeds resulting from the nonaviation use of the airport be placed back into the operation and maintenance of the airport as a general aviation facility. Accordingly, the F.A.A. must approve all leases within the industrial park and must approve the amount of rental paid on each lot within the park. In order to meet this requirement, the County has developed a standard lease form and a standard rental amount which is established by a real estate appraiser. The lease provides for periodic rental adjustments based on periodic reappraisals of the property.

Finally, you advise that a member of the Board of County Commissioners has inquired whether his wife, either individually, in partnership with others, or as a stockholder of a corporation, can become a tenant in the industrial park and enter into the standard lease agreement with the County.

The Code of Ethics for Public Officers and Employees contains two provisions which relate to the interests of the spouse of a local public official:

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 (1983).]

UNAUTHORIZED COMPENSATION. -- No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity. [Section 112.313(4), Florida Statutes (1983).]

Section 112.313(3) prohibits a public officer from acting in his official capacity to purchase, rent, or lease any realty for his agency from a business entity of which his spouse is an officer, partner, director, proprietor, or owner of more than a 5% interest. However, in previous opinions we have advised that this provision applies only to the sale or lease of land to an agency, rather than to sales or leases of realty from an agency. See CEO 77-167, CEO 81-33 and CEO 82-10. Under the circumstances presented, it further does not appear that the commissioner's wife would be accepting anything of value given to influence some official action of the commissioner, in violation of Section 112.313(4).

Accordingly, we find that no prohibited conflict of interest would be created were the spouse of the County Commissioner to lease from the County land within an industrial park which has been developed by the County.