CEO 92-31 -- July 17, 1992

CONFLICT OF INTEREST

COUNTY LOCAL PLANNING AGENCY MEMBER ALSO UNCOMPENSATED

OFFICER AND DIRECTOR OF NONPROFIT CORPORATION

CONCERNED WITH GROWTH MANAGEMENT ISSUES IN THE COUNTY

To: Eugence S. Boyd, Member of the Lee County Local Planning Agency (Bokeelia)

SUMMARY:

No prohibited conflict of interest would be created were an appointee to a local planning agency to continue to serve as an uncompensated officer and director of a nonprofit corporation whose members are concerned with growth management issues in the county and which involves itself in administrative and other proceedings opposed to the position of the county when it disagrees with the county's decisions respecting growth management. Section 112.313(7)(a), Florida Statutes, would not be violated because uncompensated service as an officer or as a member of the board of directors of a nonprofit corporation does not constitute employment or a contractual relationship.

QUESTION:

Would a prohibited conflict of interest be created were you, an appointee to the Lee County Local Planning Agency, to continue to serve as the uncompensated President of a nonprofit corporation, which was formed for the purpose of supporting Florida's Growth Management Act and promoting "good planning" in Florida, but which also involves itself in administrative and other proceedings when it disagrees with the decisions of the County respecting growth management?

Your question is answered in the negative.

In your letter of inquiry and conversation with staff, you advise that you are an appointed member of the Lee County Planning Agency established pursuant to Section 163.3174, Florida Statutes, which meets once every month. You advise that you also are the President of The Responsible Growth Management Coalition, Inc. of Lee County ("Coalition"), a nonprofit Florida corporation with IRS 501(c)(3) status, which was formed for the purpose of supportingFlorida's Growth Management Act and promoting "good" planning for Lee County. You advise that while the Coalition may appear before the Local Planning Agency once a year, it appears before the Lee County Commission more often on various matters of concern to the Coalition. You advise that none of the officers are paid for their services and that the Coalition does not employ anyone.

You advise that the Coalition is currently involved in two growth management administrative hearings involving Lee County. In addition, you are a named individual on the petition of 1000 Friends of Florida, which organization also is involved in the first case, you advise. You advise that you have no financial interest in any property that would be affected by the outcome of either case.

You also advise that both administrative proceedings involve "adopted comprehensive plan matters" which have been considered by the Local Planning Agency in past years. Although the Coalition's position in the two cases is opposed to Lee County's, you advise, the Coalition has, when it believed it to be appropriate, supported the County's position.

You are concerned because you have been advised that your role as an officer of the Coalition creates a conflict of interest with your duties as a member of the Local Planning Council, particularly in light of your understanding that Florida's Growth Management Act was written to promote public participation to the fullest extent possible in the comprehensive planning process. See Section 163.3181, Florida Statutes.

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 part of this section would prohibit you from holding an employment or contractual relationship with the Coalition if it were doing business with or regulated by your agency, the Local Planning Agency. Under the facts presented, we see no basis for finding that the Coalition is doing business with or regulated by the Local Planning Agency.

The second part of this section would prohibit 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." In previous opinions, we have advised that uncompensated service as an officer or as a member of the board of directors of a nonprofit organization does not constitute employment or a contractual relationship. See CEO 83-70 and CEO 87-4. Therefore, this section is not applicable. See also CEO 81-40 and CEO 82-14.

The advice that you were given about a potential conflict of interest was based upon CEO 75-199, CEO 78-92, and CEO 90-20. The facts related in those opinions are distinguishable from the facts you have related to us. CEO 78-92 involved a member of a county water management advisory board, who was employed by a nonprofit environmental organization. Although we ultimately found that the conflict of interest was not so substantial as to be prohibited, we found that because of the existence of an employment relationship, which does not exist in your case, we had to make the next determination of whether the employment relationship created a continuing or frequently recurring conflict between the advisory board member's private interests and the performance of his public duties, or whether the employment relationship impeded the full and faithful discharge of his public duties. Likewise, in CEO 75-199, because of the employment relationship (planning commission member also serving as director of planning for a private development company), we had to determine next whether the employment relationship created a frequently recurring conflict between private interests and public duties or whether it impeded the full and faithful discharge of his public duties. We determined that 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.

Our opinion, CEO 90-20, concerned a city council member's membership in a citizen's group which had a pending lawsuit against the city. Again, although we ultimately found that mere membership was not sufficient to create a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, and that service as an officer or director might create such a conflict, we initially found that membership in a voluntary, unincorporated association is a contractual relationship. See also CEO 82-14. However, under the facts that you have presented, you are an uncompensated member and officer of a nonprofit corporation, not an unincorporated association; therefore, no contractual relationship exists and Section 112.313(7)(a), Florida Statutes, is not applicable.

Accordingly, we find that no prohibited conflict of interest would be created were you to continue to serve as an uncompensated officer and director of the Responsible Growth Management Coalition, Inc., a nonprofit corporation, while serving as a member of the Local Planning Agency.