CEO 91-74 -- December 6, 1991

CONFLICT OF INTEREST

COUNTY COMMISSIONER'S LAW FIRM REPRESENTING COMMUNITY DEVELOPMENT DISTRICT

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

SUMMARY:

A prohibited conflict of interest would not be created under Section 112.313(7)(a), Florida Statutes, where the law firm of a county commissioner represents a community development district in the county, after its establishment. It appears that the district is not currently subject to the regulation of the county, and the statutory nature of the district coupled with infrequently necessary voting recusals by the commissioner on matters concerning the district or its developer/landowner guard against a continuing or frequently recurring conflict or impediment to duty.

QUESTION:

Does the representation of a community development district, after its establishment, by the law firm of a county commissioner constitute a prohibited conflict of interest?

Under the circumstances you present, your question is answered in the negative, subject to the conditions discussed below.

By your letter of inquiry, accompanying materials, and through submissions of another attorney on behalf of the person requesting this opinion, you advise that Michael J. Volpe is a member of the Board of County Commissioners of Collier County and a practicing attorney who is a partner in a local law firm. You advise further that the Commissioner seeks clarification of our response provided to him under Question 2 of CEO 89-47, in which we advised that a prohibited conflict of interest would be created were a member of his law firm to provide representation for a community development district located in the County.

You, or Kenza van Assenderp (the other attorney making representations to us on behalf of the person requesting this opinion), relate the information below for our use in rendering this opinion and maintain that this scenario is more fully developed than that utilized by us in our earlier opinion issued to the Commissioner. Your representations were made to us in written documents consisting of: your opinion request letter dated August 26, 1991; "Exhibit 7/Acknowledgement"; "Interlocal Agreement"; and Resolution No. 90-437. Mr. van Assenderp's representations were made to us and to our staff orally and in written documents consisting of: "Points for Discussion" referencing Commission meeting of 26 October 1991; "Points for Discussion" and attachment, dated 24 October 1991; Memorandum of Law, dated 6 November 1991; Amended Memorandum of Law dated 8 November 1991; an article on the history of Chapter 190, Florida Statutes; a proposed draft opinion; Memorandum dated 15 November 1991; Memorandum dated 21 November 1991; Memorandum dated 27 November 1991; Memorandum dated 4 December 1991, and attached affidavit.

The County Commission adopted a resolution approving the petition to establish the District. The District was established. The approval resolution provided that the District and the County enter into an interlocal agreement whereby the District would convey to the County all water and sewer utility facilities constructed by the District and that the District would be bound by the County's development regulations. Such an interlocal agreement has been entered into. The County has established subdivision regulations for its unincorporated area, including the lands over which the District has jurisdiction, outlining the construction and dedication requirements for infrastructure including roadways, water and sewer utility facilities, and water management. There are ordinances of general application addressing the construction and dedication of utility facilities which apply to all developers, including the developer of the lands serviced by the District. The District specifically recognized the applicability of these ordinances to it in its petition for establishment and in the interlocal agreement and is by law subject to them and shall not function inconsistent with them.

You also advise that three of the current five members of the District's board of supervisors have no direct or indirect association with either the landowner-developer or the Commissioner, that one member is sales manager for the landowner-developer, and that one member is executive secretary to the president and chief executive officer of the landowner-developer. The landowner-developer held 100% of the votes capable of being cast for the current board of supervisors. The next election for the board of supervisors shall be held in November, 1993; at that time, the election will still be based on a landowner one acre/one vote basis.

Your letter quotes extensively from Chapter 190, Florida Statutes, including portions of the Chapter concerning the special powers (powers relating to water supplies, sewers, bridges, roads, etc.) which the District may exercise after its formation. You relate further that such special powers as are optional have not been requested by the District, thereby, in your view, lessening the potential for interaction between the County and the District which could form a basis of conflict under the second part of Section 112.313(7)(a), Florida Statutes. The District is not expected to request such special powers in the future. One reason the District has not requested such special powers is that the services some of those special powers could generate already are provided to the District through the developer's zoning and development of regional impact development order, through private entities, or through governmental service providers other than the County.

Plats concerning land in the District would be submitted by individual developers rather than the District. Documents concerning utility infrastructure conveyances from the District to the County would be reviewed and completed by an attorney separate from the Commissioner's firm and engaged by the District for that particular purpose. The interlocal agreement, which predates any representation of the District by the Commissioner's firm, provides that utility infrastructure is to be conveyed by the District to the County at no cost. Representation of the District would amount to approximately 4% of the Commissioner's firm's total revenue. No member of the Commissioner's firm would appear before the Board of County Commissioners.

In clarification of the information you previously submitted, it is our understanding that the Commissioner's law firm has already been retained by the District. Further, you advise that should any District matter come before the County Commission, the Commissioner will recuse himself from voting on or participation in the matter. Likewise, should any matter relating to the developer/landowner (not just District matters of the developer/landowner) come before the County Commission while the developer/landowner controls the District through one acre/one vote representation, the Commissioner will recuse himself. In addition, you represent that the recusals, in total, will number not more than two in a continuous two-year period.

Section 112.313(7)(a), Florida Statutes, 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.

This section prohibits the Commissioner from having a contractual relationship with the District, through his law firm, if the District is subject to the regulation of the Board of County Commissioners. It also prohibits such a contractual relationship between the Commissioner and the District if that relationship will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or would impede the full and faithful discharge of his public duties.

Your attorneys have represented to us on your behalf that the District is not subject to the regulation of the County. However, regulation might very well exist were the District to seek special powers under Section 190.012(2), Florida Statutes, or were the County to seek to take over some of the District's special powers under Section 190.046(4), Florida Statutes. Further, since an issue concerning special powers of or for the District is not currently before the County Commission, since Chapter 190, Florida Statutes, indicates that the interests and purposes of community development districts are not to be contrary to the interests of general purpose local governments, and in view of the recusals outlined above, we find that the Commissioner's firm's representation of the District would not create a continuing or frequently recurring conflict or impediment to duty under the second part of Section 112.313(7)(a). However, if the recusals will exceed the number or frequency described, or if your factual scenario otherwise materially changes, you should seek another opinion from us.

Lastly, your attention is particularly directed to Sections 112.313(6) and 112.313(8), Florida Statutes, which provide:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

For purposes of this provision, the term "corruptly" is defined as follows:

'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(9), Florida Statutes.]

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.

You are strongly cautioned to be aware of these provisions, as they might pertain to the District or the developer/landowner, in all of your conduct as a County Commissioner.

Accordingly, under the factual scenario and its commitment to infrequently necessary recusal contained herein, we find that a prohibited conflict of interest would not be created were the subject county commissioner's law firm to represent a community development district located within the county.