CEO 88-17 -- March 16, 1988

CONFLICT OF INTEREST

COUNTY BOARD OF ADJUSTMENT MEMBER

REALTOR AND TRUSTEE IN SALE OR TRADE OF LAND TO COUNTY

To: Mr. Albert M. Cavalier, Member, Marion County Board of Adjustment (Anthony)

SUMMARY:

No prohibited conflict of interest would be created were a member of a county board of adjustment to sell or trade a parcel of land to the county as a realtor and as trustee for the property owners. Although Section 112.313(3), Florida Statutes, prohibits a public officer from acting in a private capacity to sell services to the political subdivision in which he serves or to any agency thereof, previous Commission opinions have advised that under Section 112.316, Florida Statutes, a member of a subordinate board of a political subdivision may sell to the political subdivision as long as the subordinate board is not responsible for the approval of or the giving of advice or recommendations as to the purchase. CEO's 86- 84, 81-66, 81-29, 80-33, 78-66 and 76-134 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, a member of a county board of adjustment, to sell or trade a parcel of land to the county as a realtor and as trustee for the property owners?

Your question is answered in the negative under the circumstances presented.

In your letter of inquiry you advise that you serve as a member of the Marion County Board of Adjustment and that you are a licensed real estate broker. You also advise that you are the trustee for a group which owns a parcel of land the County is interested in buying. You will be the selling broker in the event of a sale, and will receive a commission from the selling group. You advise that your minor son is a 5 percent owner of the property through a trust agreement and that you have no ownership interest in the property.

You advise that the County would like to use the property for a volunteer fire department station and for a storage yard. The property has railroad siding capabilities and is unique in its location for the intended purpose. The property is zoned for the intended use, you advise, and the Board of Adjustment will not have any input on the transaction and will not have to act in any manner on the parcel. Finally, you advise that the transaction may not be an outright sale of the property, but may work out to be a trade for other property owned by the County.

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

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 (1987).]

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 (1987).]

The first part of Section 112.313(3) prohibits you from acting in an official capacity to purchase any realty for your agency from a business entity in which you or your child has a material interest. The term "business entity" is defined in the law to include any trust doing business in this state. See Section 112.312(3), Florida Statutes. In addition, the term "material interest" is defined in Section 112.312(12), Florida Statutes, to mean the ownership of more than 5 percent of the assets of a business entity. It is apparent that this prohibition of the Code of Ethics will not apply in this case, as you will not be acting in your official capacity as a member of the Board of Adjustment to purchase the property.

The second portion of Section 112.313(3) prohibits you from acting in a private capacity to sell any realty to the County or any agency thereof. We previously have advised in CEO 86-42 that this provision would prohibit a public officer from contracting as a realtor to act as a broker in the sale of property to the official's agency, regardless of whether the seller or the purchaser pays the brokerage commission. In addition, we find that in your capacity as trustee you would be acting in a private capacity to sell the property to the County.

However, we have advised also that because of the provisions in Section 112.316, a member of a subordinate board of a political subdivision is not prohibited from selling to the political subdivision or to agencies other than the agency of which he is a member, as long as the subordinate board is not responsible in any manner for the approval of or the giving of advice or recommendations as to the purchase. See CEO 86-84, CEO 81-66, CEO 81-29, CEO 80-33, CEO 78-66, and CEO 76-134. As you have advised that the Board of Adjustment would not have any input or have to act in any manner regarding the purchase of the property, we find that the rationale of these opinions applies equally in this case.

The Code of Ethics also provides:

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 any employment or contractual relationship with a business entity, such as the trust, which is doing business with his agency. However, this provision does not apply as your agency, the Board of Adjustment, is not purchasing the property. See Section 112.312(2), Florida Statutes, defining the term "agency."

Accordingly, we find that no prohibited conflict of interest would be created were you to sell or trade a parcel of land to the County as a realtor and as trustee for the property owners while remaining a member of the County Board of Adjustment. You have advised that two other owners of the property are employed by the County, although not in a decision-making capacity relating to the purchase of property. Without examining the duties and responsibilities of these employees, we are unable to advise how the Code of Ethics would apply to their situations. Under Section 112.322(3), Florida Statutes, we would be authorized to render an opinion to either employee about his situation or to the officer or employee within County government who has the power to hire or terminate the employees.