CEO 86-5 -- January 9, 1986

CONFLICT OF INTEREST

COUNTY ZONING ADMINISTRATOR'S SPOUSE EMPLOYED BY LAW FIRM REPRESENTING CLIENTS BEFORE THE COUNTY ON ZONING AND OTHER MATTERS

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

SUMMARY:

No prohibited conflict of interest exists where the wife of a county zoning administrator is employed as director of planning by a law firm which represents clients on zoning and other matters relating to the county's zoning code and sign ordinance. Section 112.313(7), Florida Statutes, limits the employment and contractual relationships of a public officer or employee but not those of his or her spouse. The law firm is not selling any services to the county, so Section 112.313(3), Florida Statutes, would not apply. Nor do the circumstances here indicate that the wife's compensation is being given in order to influence the zoning administrator's actions, in violation of Section 112.313(4), Florida Statutes.

QUESTION:

Does a prohibited conflict of interest exist where the wife of a county zoning administrator is employed as director of planning by a law firm which represents clients on zoning and other matters relating to the county's zoning code and sign ordinance?

Your question is answered in the negative.

In your letter of inquiry and through information provided to us by the Zoning Administrator, we have been advised that .... Englehardt serves as the Zoning Administrator for Hillsborough County. The Zoning Administrator is primarily responsible for the implementation, enforcement, and interpretation of the County zoning code. Included in his duties are the responsibility for reviewing land development plans for compliance with the zoning code, rendering interpretations of the zoning code and the County's sign ordinance, and making recommendations to zoning hearing masters and to the Board of County Commissioners on requests for rezoning. All decisions made by the Zoning Administrator are subject to appeal.

We also are advised that the Zoning Administrator's wife is employed as the director of planning of a local law firm which represents clients on rezoning actions and other matters relating to the zoning code and sign ordinance. The Administrator's wife previously was employed with the County as a land use planner; the two were married approximately three months after she was employed by the law firm. The Zoning Administrator has dealt with the law firm on a routine and continuing professional basis since his employment in 1981.

You have inquired whether any provision of the "Sunshine Amendment," Article II, Section 8, Florida Constitution, would apply here. Please be advised that there is no provision in Article II, Section 8, which would apply to the situation you have described. In addition, for the reasons which follow, we conclude that there also is no provision of the Code of Ethics for Public Officers and Employees contained in Chapter 112, Part III, Florida Statutes, which would apply to this situation.

Section 112.313(7), Florida Statutes, prohibits public officers and employees from having certain types of conflicting employment or contractual relationships. However, as we advised in CEO 80-20 and CEO 80-80, this provision limits the employment and contractual relationships of a public officer or employee and not those of his or her spouse.

Sections 112.313(3) and (4), Florida Statutes, are the only provisions of the Code of Ethics which specifically concern conflicts of interest for local public employees based upon a spouse's interest or actions. Those sections provide:

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 (1985).]

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 (1985).]

Neither of these quoted provisions is applicable to the circumstances you have described. With respect to Section 112.313(3), it is clear that the Zoning Administrator is not acting in an official capacity to purchase any services for the County from the law firm. Nor do the facts presented suggest any reason to believe that the compensation paid to the Zoning Administrator's wife, who formerly was a land use planner for the County, is being given to influence some action in which the Administrator is expected to participate.

Accordingly, we find under these circumstances that no prohibited conflict of interest exists where the wife of the County Zoning Administrator is employed as director of planning by a law firm which represents clients on zoning and other matters before the County.