CEO 90-40 -- April 26, 1990

CONFLICT OF INTEREST

CITY / COUNTY ZONING DIRECTOR ENGAGING IN REAL ESTATE INVESTMENTS

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

SUMMARY:

No prohibited conflict of interest was created under Section 112.313(7)(a), Florida Statutes, when a city/county zoning director purchased three residential properties with a realtor (who now is his wife), renovated the houses on the properties, and resold two of them, when none of the property was the subject of a rezoning request. Nor would a prohibited conflict of interest be created under Section 112.313(7)(a) were the zoning director to obtain an associate real estate license, which would remain inactive, and where he would not sell any land as a realtor within the city or county. CEO 89-44 and CEO 79-8 are referenced.

QUESTION 1:

Was a prohibited conflict of interest created when a City/County Zoning Director purchased residential real property with his wife (a realtor), renovated the houses on the property, and subsequently resold them?

Under the described circumstances, this question is answered in the negative.

In your letter of inquiry, you advise that the Bradford County Board of County Commissioners and the City Council of Starke jointly employ a Zoning Director, Mr. Darryl O'Neal. In your letter of inquiry and through a telephone conversation with the Zoning Director, our staff has been advised that the Zoning Director is a department head and a public employee of both the County and the City. He operates and manages the local governments' zoning office, which receives and processes applications for rezoning, inspects construction sites, issues building permits, supervises County solid waste facilities, maintains public records on zoning and solid waste matters, and disseminates information to the public in regard to the above matters. The Zoning Director attends meetings of and advises the City Council, the Board of County Commissioners, the local Zoning Board, and the Board of Adjustment. He processes zoning applications but does not make any recommendation to the respective governing boards on whether they should be approved, other than to advise the board about applicable law or ordinances.

Recently, the Zoning Director purchased with his wife, a local real estate agent, investment properties located in the County. They purchased three residential properties, renovated the houses on each parcel, and sold two of them. In addition, all properties were purchased initially through a real estate agent other than his wife.

Section 112.313(7)(a), Florida Statutes, states:

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.

This provision prohibits a public employee from having a contractual relationship with any business entity which is subject to the regulation of his agency. The fact that the Zoning Director may own property which might be the subject, infrequently, of an application for zoning change would not by itself be sufficient to violate Section 112.313(7)(a), Florida Statutes. See generally CEO 84-1. In the present case, we have been told that all of the three investment properties owned by the Respondent were in residential areas, and none was the subject of a rezoning request. Therefore, based upon this information, we conclude that Section 112.313(7)(a) was not violated. Should the Zoning Director desire to acquire property which would require rezoning or some other action by his department, however, we suggest he seek another opinion from this Commission. We also would suggest that the Zoning Director obtain a separate opinion if he intends to engage in a business of buying and selling properties. See CEO 89-44; CEO 79-8.

We note that Section 112.313(7)(a) addresses only contractual or employment relationships of a public official, not those of his or her spouse. See CEO 89-44. Therefore, the prohibitions of this Section do not apply to the Zoning Director's wife or to her choice of employment as a real estate agent. We do suggest that the Zoning Director consider not participating in matters relating to property in which his spouse would have an interest.

Section 112.313(8), Florida Statutes, states:

DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity.

This provision would prohibit the Zoning Director from using any information to which he has access in his official capacity, and which is unavailable to the general public, for the personal benefit of himself or his wife. By telephone, the Zoning Director informed our staff that all information in the Zoning Director's office is public record, with the exception of certain personnel files and zoning complaints. In fact, within 5 to 10 days after a zoning application is received, it is published in the newspaper. The Zoning Director did not indicate that he used any information which was not available to the public in the purchase and sale of his investment properties. Therefore, we have not been provided with information which indicates that he has violated Section 112.313(8), Florida Statutes. We bring to your and his attention, however, CEO 79-8, in which we determined that a deputy clerk of court who was a real estate agent had a prohibited conflict of interest, as she had access to information regarding property sales, foreclosures, probate proceedings, and matters in litigation. Although most of that information eventually would become public record, we determined the clerk's access to the information immediately upon its filing could create a conflict. Therefore, the Zoning Director's use of information not yet in the public domain to assist in a purchase of property could be found in violation of Section 112.313(8), Florida Statutes.

Accordingly, we find that no prohibited conflict of interest existed where the subject City/County Zoning Director engaged in residential real estate investments with his wife, when none of the properties required rezoning, and there is no indication that the Zoning Director used information unavailable to the general public in the sale.

QUESTION 2:

Would a prohibited conflict of interest be created were the Zoning Director to obtain an associate real estate license, when the license would remain inactive and he would not act as a realtor for any sale of property within the City or County?

Under the circumstances described, this question is answered in the negative.

In your letter of inquiry, you state that the Zoning Director intends to obtain an associate real estate license. By telephone, the Zoning Director stated to our staff that the license will remain inactive as long as he is Zoning Director. In addition, he stated that he does not intend to act as a realtor for any sale of property within the City or County as long as he is Zoning Director.

We conclude that the Zoning Director's mere possession of an inactive real estate license, when he does not intend to practice or be involved as a realtor with any sale of land within the County, would not appear to violate any provision of the Code of Ethics.

Accordingly, we find no prohibited conflict of interest exists where a City/County Zoning Director obtains an associate real estate license, which remains inactive while he is Zoning Director and where he does not intend to sell any land as a realtor in the City or County while he remains Zoning Director.