CEO 92-53 -- December 3, 1992

CONFLICT OF INTEREST

COUNTY PLANNING COMMISSION MEMBER SERVING AS EXECUTIVE

DIRECTOR OF NONPROFIT CORPORATION FORMED TO SUPPORT

BUILDING OF PETROLEUM PRODUCTS TERMINAL AND PIPELINE

To: Robert Iglehart, Member, Jefferson County Planning Commission (Lloyd)

SUMMARY:

A prohibited conflict of interest in violation of Section 112.313(7)(a), Florida Statutes, would be created were a member of a county planning commission to remain a member of the planning commission while employed as executive director of a nonprofit corporation supported by a petroleum pipeline and a petroleum company and formed to mobilize community support for the building of a petroleum pipeline and petroleum product terminal in the county. Because the planning commission member's employment involves the promotion of a single aspect of the commission's overall consideration, his employment poses a threat to the commission member's impartiality in formulating the county's land use plan and provides a motive for improper use of his public position. When a conflict of interest arises occasionally, the Legislature has provided that a voting official, pursuant to Section 112.3134(3), Florida Statutes, publicly may disclose his conflict and abstain from voting. However, as here, where the planning commissioner's employment presents him with a continuing or frequently recurring conflict of interest, or impedes the full and faithful discharge of his public duties, he may not continue to serve in the face of that conflict, unless the conflict is waived by a two-thirds vote of the county commission after full disclosure in accordance with Section 112.313(12), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest be created were a member of a county planning commission to remain a member of the commission while employed as executive director of a nonprofit corporation supported by a petroleum pipelineand a petroleum company and formed to mobilize support for the building of a petroleum pipeline and petroleum product terminal in the county?

Your question is answered in the affirmative.

In your letter of inquiry and conversation with staff, you advise that you have been appointed to serve on the Jefferson County Planning Commission. However, prior to your appointment, you were an active supporter of the proposed Jefferson County Product Terminal to be built in Lloyd. You also advise that on several occasions you discussed the possibility of employment with representatives of the pipeline company and the petroleum company, which would own and operate the product terminal and pipeline. You advise that the land use change for the terminal site was approved by the Planning Commission prior to your appointment and that you have never voted on any matter coming before the Planning Commission having to do with the terminal.

You advise that on June 4, 1992, an amendment to the Jefferson County Development Code was proposed by attorneys for the pipeline company. The amendment would provide guidelines as to what land categories a petroleum pipeline would be permitted to cross on its way from its entry into the county to the terminal. You advise that as a result of considerable community opposition to the proposed amendment expressed at the Planning Commission's August 5, 1992 meeting, the Planning Commission agreed to table the proposed amendment until a workshop was held on the proposal. You advise that, because of your pending employment applications with both companies, you abstained from voting on the motion to table the proposal and filed a Memorandum of Voting Conflict (CE Form 8B).

You advise further that prior to the Planning Commission's scheduled workshop on September 3, 1992, you were offered the paid position of Executive Director of a nonprofit corporation which was created to mobilize community support for such projects as the petroleum company's terminal, the petroleum pipeline, and other business ventures which might try to locate in the County and North Florida in the future. Your duties as executive director include managing the corporation's office, telephoning both community supporters and opponents about the projects, mobilizing support, and helping to publish newsletters and handouts about the terminal and pipeline projects, you advise. Both the pipeline company and the petroleum company contributed to the nonprofit corporation.

You write that your Board of Directors specifically prohibited you from "lobbying" your fellow Planning Commission members and from attending any meetings of the Planning Commission devoted solely to discussion of the pipeline. Therefore, at the September 3, 1992 workshop, you publicly announced that you would abstain from voting and would not participate in the workshop because of your pending applications with both companies and your employment with the nonprofit corporation. You then left the stage, sat in the audience, and did not participate in the discussion. You also advise that you neither have had any contact with any of your fellow Commission members or County Commission members concerning the projects nor voted on any matter concerning these projects. Despite this fact, you write, one of the most vocal opponents of the projects is calling for your resignation. You ask, therefore, whether the Code of Ethics for Public Officers and Employees prohibits both your remaining on the Planning Commission and your keeping your paid position as Executive Director of the nonprofit corporation.

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.]

VOTING CONFLICTS.--No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143(3)(a), Florida Statutes (1991).]

VOTING CONFLICTS.--No appointed public officer shall participate in any matter which would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained; or which he knows would inure to the special private gain of a relative or business associate of the public officer, without first disclosing the nature of his interest in the matter. [Section 112.3143(4), Florida Statutes.]

Section 112.3143(3), Florida Statutes, prohibits you, as a member of the Planning Commission, from voting on any measure which inures to your private gain or to the special private gain of your principal, the nonprofit corporation. Therefore, we find that you were correct in abstaining from voting on any measure related either to the pipeline or to the petroleum terminal, because such measures could inure directly to your benefit in terms of job security and continued contributions to the nonprofit corporation from the pipeline company and the petroleum company. Your voting on such measures also could inure to the special benefit of your principal, the nonprofit corporation, in the form of continued support by the two companies.

In addition, Section 112.3143(4), Florida Statutes, prohibits you, an appointed public officer, from participating in any matter which would inure to your special private gain or to the special private gain of your principal without first disclosing your conflict prior to your participation in the matter. For purposes of this section, the term "participation" has been defined at Section 112.3143(4)(c) to mean

any attempt to influence the decision by oral or written communication, whether made by the officer or at his direction.

Thus, if we assume that Sections 112.3143(3) and (4), Florida Statutes, are the only provisions of the Code of Ethics applicable here, we find that you were not required to leave the stage and sit in the audience once you had publicly announced your conflict of interest. However, you were required by Sections 112.3143(4)(a) and (b), Florida Statutes, to file a written memorandum of voting conflict (CE Form 8B) with the person responsible for recording the minutes of the meeting either prior to the meeting at which the matter was discussed so that it could be incorporated in the minutes and provided to the other members of the Planning Commission or within 15 days after your oral disclosure of the conflict was made. In either case, your written memorandum of voting conflict should have been read publicly at the next meeting following its filing.

In CEO 88-3, we addressed the requirement for filing a memorandum of voting conflict when a member of a local board or commission is absent from the meeting. We found:

When an official is absent from an entire meeting at which he would have been presented with a voting conflict of interest under [Section 112.3143(3), Florida Statutes (1987)], he obviously has satisfied the requirement of abstaining from voting. When the official is absent from the entire meeting, it clearly would be impossible for him to publicly state to the assembly the nature of his interest in the matter. Finally we do not read [Section 112.3143(3), Florida Statutes (1987)] as imposing upon an official the duty of filing a memorandum of voting conflict with respect to a matter which arose at a meeting he did not attend at all. We recognize that public officials will have legitimate reasons for not attending meetings, such as illness or public or private commitments which they feel take precedence. Where the legislature has not provided clearly that disclosure would be required under these circumstances, and where the question apparently did not arise during the legislative process, we are reluctant to impose on an official the affirmative duty of having to go back and review matters which occurred at the meeting he did not attend in order to determine whether he is required to file a memorandum of voting conflict for that meeting.

However, we found, as did the Attorney General in AGO 074-289, that the statutory duty of filing a memorandum of voting conflict could not be avoided by the "temporary" absence of a local officer from from the body of which he is a member during a meeting at which he is present. We found that "as long as a member in attendance at a meeting is sufficiently nearby that he can be reached or called, even though he physically may have left the room temporarily, the member must be considered as being present for purposes of [Section 112.3143(3), Florida Statutes (1987)]."

Of more overriding concern to us, however, is the prohibition of Section 112.313(7)(a), Florida Statutes, which provides:

This section prohibits you from holding an employment or a contractual relationship which would create a continuing or frequently recurring conflict between your private interests and the performance of your public duties or that would impede the full and faithful discharge of those duties. For purposes of the Code of Ethics, a "conflict of interest" is defined at Section 112.312(8), Florida Statutes, to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest."

This prohibition "establishes an objective standard which requires an examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'" Zerwick v. State Commission on Ethics, 409 So.2d 57, 61 (Fla. 4th DCA 1982). Thus, under Section 112.313(7)(a) our concern must lie with whether the public official's employment creates a situation that would "tempt dishonor," rather than with whether the official is capable of withstanding that temptation and performing his official duties with integrity. See CEO 91-1.

As we have indicated above, where a conflict of interest arises occasionally, the Legislature has provided that a voting official, pursuant to Section 112.3143(3), Florida Statutes, publicly may disclose his conflict and abstain from voting. However, when the official's employment presents him with a continuing or frequently recurring conflict of interest, or impedes the full and faithful discharge of his public duties, the Legislature has provided in Section 112.313(7)(a) that the official may not continue to serve in the face of that conflict. No public officer or employee "shall have any interest . . . . or professional activity . . . which is in substantial conflict with the proper discharge of his duties in the public interest." Section 112.311(5), Florida Statutes. See CEO 83-27.

In CEO 81-84 and CEO 83-27, we stated that as a general rule not every person whose private employment revolves around real estate development is prohibited from serving on a planning commission. We advised:

It is only in situations where the member's private interests are substantial and would be substantially affected by the Commission's work, that he should not be permitted to serve on the Planning Commission.

In our view, under the circumstances presented, where a member of a planning commission holds private employment which involves the promotion of a single aspect of the commission's overall consideration, such employment poses a threat to the commission member's impartiality in formulating a land use plan and would provide him with a motive for improper use of public position. See CEO 75-199 (director of planning for private development company should not serve on county planning commission). Even if you were to continue to abstain and not participate in discussions concerning the terminal project or the pipeline, we find that your inability to participate in this substantial issue of concern to the citizens of the County would impede the full and faithful discharge of your public duties.

In CEO 89-29, we found that no prohibited conflict of interest existed for a city commissioner who was employed as executive director of a city chamber of commerce where the executive director's activities did not encompass activities related to lobbying the city commission. Similarly, in CEO 90-8, we found that no frequently recurring conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, by the employment of a legislator as chief executive officer of a nonprofit group which had been formed to promote higher education in Florida, so long as he had no role in the organization's efforts to lobby the legislature.

In both opinions, we defined "lobbying activities" to include more than the actual contact through physical attendance at meetings of public officers and employees, the submission of written materials, and personal communication with public officers and employees in an effort to encourage the passage, defeat, or modification of a particular measure. We determined that lobbying activities also included directing the activities of those who will contact the public body, participating in setting the strategies of whom to contact and what to say, and assisting in preparing amendments to documents in support of the nonprofit corporation's positions. Thus, while you may be prohibited by your Board of Directors from directly lobbying on behalf of the nonprofit corporation, we find that such activities as contacting both community supporters and opponents about the projects and mobilizing support for the two projects would constitute lobbying activities.

Your situation also is distinguishable from that of the city commissioner we examined in CEO 90-15. The city commissioner was employed by a newspaper to write newspaper articles which concerned the activities and business of the city commission. With respect to the Section 112.313(7)(a) prohibition of a continuing conflict of interest, we noted that although, from time to time, the newspaper would take and express editorial positions on city government issues and the commissioner might feel compelled to use his public office to support a position endorsed by the paper, the newspaper is not a type of business activity which regularly would be affected by the decisions of city government. We found, consistent with our finding in CEO 89-29, that the fact that the newspaper or chamber of commerce expressed opinions about what city government should do did not prohibit a city commissioner from being employed by the newspaper or chamber of commerce. Here, however, you publish newsletters and handouts directed entirely to promoting the two projects. Unlike the newspaper in CEO 90-15, we find that the nonprofit corporation, rather than being in the business of publishing newsletters and handouts, is in the business of promoting the two projects. Therefore, the corporation, your employer, is directly affected by the decisions of the County, thereby creating a prohibited conflict of interest.

Section 112.313(12), Florida Statutes, contains an exemption from the requirements of Section 112.313(7), Florida Statutes, which may be applicable to the situation herein to absolve the conflict of interest. Section 112.313(12), Florida Statutes, provides in relevant part:

EXEMPTION.--The requirements of subsections (3) and (7) as they pertain to persons serving on advisory boards may be waived in a particular instance by the body which appointed the person to the advisory board, upon full disclosure of the transaction or relationship to the appointing body prior to waiver and an affirmative vote in favor of waiver by two-thirds vote of the body. In instances in which appointment to the advisory board is made by an individual, waiver may be effected after public hearing, by a determination by the appointing person and full disclosure of the transaction or relationship by the appointee to the appointing person.

In a number of prior opinions, we have considered planning commissions to be advisory boards to the city or county commissions with respect to zoning, development, comprehensive planning, and land use matters. See CEO 88-69. In accordance with Section 112.313(12), Florida Statutes, the County Commission by two-thirds vote may waive the Section 112.313(7)(a) prohibited conflict of interest after full disclosure by you of your relationship to the nonprofit corporation. See CEO 91-26.

Accordingly, we find that unless waived by a two-thirds vote of the County Commission after full disclosure of your relationship to the nonprofit corporation, which was formed for purposes of mobilizing community support for the building of a petroleum terminal and pipeline in the county and which you are the paid executive director of, a prohibited conflict of interest would exist you were to continue to serve as a member of the County Planning Commission.