CEO 88-1 -- February 4, 1988

CONFLICT OF INTEREST

COUNTY PROPERTY APPRAISER'S EMPLOYEES

PRIVATELY APPRAISING REAL ESTATE

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

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were employees of a county property appraiser to engage in private real estate appraisals of property located in the county. Appraisals of property in the county could be used as a basis for challenging the property appraiser's official appraisal. In addition, the employees of the office have direct access to information of value in appraising such property, some of which is confidential by law and some of which would be available to employees of the office before it would be available to the general public. However, no prohibited conflict of interest would be created were employees privately to appraise property located outside the county, as the possibility that the appraisals would be used to challenge an official appraisal in the county would appear extremely remote. CEO 76-179 is revoked.

QUESTION:

Would a prohibited conflict of interest be created were employees of a county property appraiser to engage in private employment as real estate appraisers during their off‑duty hours?

Your question is answered in the affirmative with respect to appraisals of property located in the County and in the negative with respect to appraisals of property outside the County.

In your letter of inquiry and in a telephone conversation with our staff you have advised that employees of the Citrus County Property Appraiser currently perform private appraisal work regarding commercial and residential property. The appraisals have been done for individuals in connection with the purchase of property, for attorneys in connection with estates and dissolutions of marriages, and may have been done for lending institutions in connection with loans. You advise that these employees include supervisory personnel and field personnel who have been hired by the Property Appraiser to do commercial and residential appraisals for his office. You question whether these employees may perform private appraisals during their off‑duty hours.

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 (1987).]

In CEO 76-179 we advised that this provision would not prohibit an employee of a county property appraiser from engaging in private employment as a real estate appraiser. There, the employee advised that the private appraisals typically would be used by mortgage lenders, would not relate to any public agency, and never would be utilized in cases which also would involve property appraisals made by the property appraiser's office.

In CEO 82-86, we advised that an employee of a county property appraiser's office who held an active real estate license could engage in real estate sales activities, although we noted that a prohibited conflict of interest could arise with respect to certain specific situations. We noted that employees of a property appraiser have access through their public positions to information which is confidential by law, and we warned that employees should be cautioned that the disclosure or use of confidential information would violate the following provision of the Code of Ethics:

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. [Section 112.313(8), Florida Statutes (1987).]

If the property is located in the County, we see a clear conflict of interest if the appraisal could be used in a case involving the official appraisal of the Property Appraiser. In such a case, the Property Appraiser's office could be involved in defending an assessment placed on the property and an employee who participated in a private appraisal of the property may be required to testify in opposition to the Property Appraiser. Yet we see no way to preclude a private appraisal of in‑County property or the appraiser who did that work from being subpoenaed to provide evidence which would challenge the accuracy of the official appraisal.

Further, we note that in contrast to the question posed in CEO 82-86 regarding real estate sales activities, the work performed by the employees in making private appraisals is identical to their work in their official capacities. The records of the Property Appraiser's office relate directly to the appraisal of property in the County. Some of these records by law cannot be disclosed to the general public, including taxpayers' returns and financial records, but would be of great value in appraising property. Other internal property records not appearing on the computerized records of the office generally are not made available to the public, you advised in a telephone conversation with our staff. In addition, you advised that usually there is a time delay in entering information on the office's computer, so that employees of the office would have access to more current information than would be available to the general public.

Under these circumstances, we are of the opinion that an employee's private employment in appraising property located in the County would create a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of his public duties, in violation of Section 112.313(7)(a). However, the same considerations would not hold true with respect to appraisals of property located outside the County. First, the records of the Property Appraiser's office relate to property located within the County. Secondly, we are of the opinion that the likelihood that an appraisal of property outside the County would be used to challenge an official appraisal is so remote as not to justify prohibiting employees from doing out‑of‑County appraisals altogether. In this respect, you advised our staff that you believe that the only unique property in the County for which in‑County comparables would not be available probably would be a nuclear generating plant, which presents an extraordinarily complex and unique assessment problem.

Accordingly, we find that a prohibited conflict of interest would be created were an employee of the Property Appraiser to engage in private real estate appraisal activities with respect to property located within the County, but that no prohibited conflict of interest would be created with respect to the appraisals of property outside the County.

CEO 76-179 is hereby revoked.