CEO 90-78 -- November 30, 1990

CONFLICT OF INTEREST

COUNTY LAND SURVEYOR EMPLOYED AS REAL

ESTATE SALESMAN DOING MORTGAGE SURVEYS

To: Hardoowar Singh, Registered Land Surveyor, Pasco County Engineering Services Department (New Port Richey)

SUMMARY:

No prohibited conflict of interest under the Code of Ethics for Public Officers and Employees would be created were a registered land surveyor for the Engineering Services Department of Pasco County to be employed by a real estate company as a licensed real estate salesman for the purpose of selling pre-existing homes and doing related mortgage surveys during his off-duty hours when those surveys are required by banks and mortgage companies for closing on those homes. The employee would be prohibited from being involved in real estate sales or mortgage surveys relating to lots for which a county building permit subsequently would be pulled.

QUESTION:

Would a prohibited conflict of interest be created were you, a registered land surveyor for the Engineering Services Department of Pasco County, to be employed by a real estate company as a licensed real estate salesman for the purpose of selling pre-existing homes and doing related mortgage surveys during your off-duty hours when those surveys are required by banks and mortgage companies for closing on those homes?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that you are employed by the Pasco County Engineering Services Department as a registered land surveyor. You advise that your duties include the review and interpretation of plats submitted to the Board of County Commissioners for approval and the review of right-of-way drawings and sketches with legal descriptions for road rights-of-way. You have stated that you review plats of proposed developments and homesites for compliance with the County Subdivision Ordinance and applicable State law. You advise that your office is structured such that you report to the County Surveyor, who in turn reports to the Director of Development Services, who reports to the County Administrator, who then reports to the Board of County Commissioners. You further advise that you are a licensed real estate salesman.

You question whether you may work for a real estate company selling pre-existing homes and doing mortgage surveys on weekends (your off-duty hours) when required by banks and mortgage companies for closing on those homes. You emphasize that you only would do surveys on pre-existing homes and that you would not survey new lots for which a County building permit subsequently would be pulled. Finally, you advise that the banks and mortgage companies for which you would be doing the mortgage surveys are located in the County; however, there are no contractual or any other connections between them and the Board of County Commissioners.

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.]

The first portion of this paragraph prohibits you from having any employment or contractual relationship with a business entity which is either subject to the regulation of, or doing business with, the Engineering Services Department. It is clear that you will have a contractual relationship with the real estate firm with which you are associated. Under the facts which you have presented, it does not appear that this firm is doing business with the Engineering Services Department, which is your agency. Nor is the real estate firm subject to the regulation of the Department, as real estate brokers and salesmen are regulated by the Florida Real Estate Commission under Chapter 475, Florida Statutes. It is also clear that you will have a contractual relationship with the banks and mortgage companies for which you will be doing the surveys. However, additionally from the facts presented, it does not appear that the banks or mortgage companies for which you would be working are doing business with your agency. Also, the banks and mortgage companies are regulated by the Department of Banking and Finance under Chapter 658 and Chapter 494, Florida Statutes, respectively, and therefore are not subject to the regulation of your agency. Therefore, the first portion of Section 112.313(7)(a) does not apply either to your relationship with the real estate company or your relationship with the banks or mortgage companies.

In CEO 81-3, we determined that while an assistant director of public works who was employed by a city engineering department was not absolutely prohibited from engaging, in his private capacity as a real estate salesman, in real estate transactions within the jurisdiction of the city, the second clause of Section 112.313(7)(a) would be violated were that employee to have an interest in the sale of property the improvement of which was being regulated by the engineering department. In that case, the employee in question was the Assistant Director of Public Works, and his recommendations to the City Engineer/Public Works Director were largely accepted by the Director without close scrutiny. We went on to state that the employee was "prohibited from having any interest as a real estate salesman in a subdivision until after the engineering department [had] completed the exercise of its responsibilities." It was anticipated that there would not be a prohibited conflict of interest were that employee to participate in the sale of residential properties which did not involve any participation or review by the engineering department.

In this case, you have advised that you would not survey new lots for which a County building permit subsequently would be pulled. Therefore, the rationale expressed in CEO 81-3 would seem to be applicable to your situation. You are not prohibited from participating in real estate transactions or doing mortgage surveys on properties when such activities do not relate to any activities of the Engineering Services Department regarding those same properties.

The Code of Ethics also contains a prohibition against an employee using or disclosing information gained by virtue of his public position before such information becomes available to the public. Section 112.313(8), Florida Statutes. We would urge you to be particularly cautious in your activities as a real estate salesman and associate of a real estate firm to avoid even the appearance that you have used information gained through your public position to benefit either yourself or the real estate firm with which you are associated.

Accordingly, we find that no prohibited conflict of interest under the Code of Ethics for Public Officers and Employees would be created were you to be employed by a real estate company as a licensed real estate salesman for the purpose of selling pre-existing homes or doing related mortgage surveys during your off-duty hours when those surveys are required by banks and mortgage companies for closing on those homes while being a registered land surveyor for the Engineering Services Department of Pasco County.