CEO 90-7 -- January 24, 1990

CONFLICT OF INTEREST

CITY PLANNING BOARD MEMBER ACTING AS REAL

ESTATE BROKER FOR PURCHASER OF CITY PROPERTY

To: Carl Coffin, West Palm Beach City Attorney

SUMMARY:

No prohibited conflict of interest would be created were a city planning board member to represent a business in a purchase of land from the city, where the sale is contingent on a land use change which must come before the planning board for a recommendation to the city commission. As the planning board member would not be selling any property or services to the city, Section 112.313(3), Florida Statutes, would not be applicable. The business would not be subject to the regulation of or doing business with the planning board, so the prohibition of Section 112.313(7)(a), Florida Statutes, would not apply; nor would the fact that a land use change must be secured to consummate the sale produce a continuing or frequently recurring conflict or impede the full and faithful discharge of public duties under this provision. However, the planning board member would be prohibited from voting on the land use change when it came before the board, as it would result in special private gain to the planning board member under Section 112.3143(3), Florida Statutes. In addition, under Section 112.3143(2)(b), Florida Statutes, the board member may not participate in the matter when it comes before the board without first disclosing the nature of his interest pursuant to that provision.

QUESTION:

Would a prohibited conflict of interest be created were a planning board member to act as a real estate broker representing a business in a purchase of land from the city, where the sale is contingent upon a land use change which would come before the planning board?

Your question is answered in the negative.

In your letter of inquiry and in telephone conversations with our staff, you have advised that Mr. Granville Webb serves as the Chairman of the City of West Palm Beach Planning Board. He also operates a real estate firm in his private capacity. This firm wishes to act as broker representing a buyer of certain City property.

The City owns lands which are designated by special act of the Legislature for retention and storage of ground and surface water. The City is prohibited from selling these lands, which are designated as "conservation" in the land use element of the City's comprehensive plan. The 1989 Legislature passed a special act changing the boundaries of the lands, excluding certain parcels which are no longer necessary for water conservation purposes. These excluded parcels are now available for sale and development, provided that the land use designation is changed to permit that use.

The subject Planning Board member approached the City in his capacity as a real estate broker, acting on behalf of the owners of a commercial enterprise which is interested in purchasing certain of these lands. A contract for purchase and sale was signed, contingent on a land use amendment encompassing the site prior to closing which would permit the intended commercial enterprise. The City Commission alone has the power to approve or deny the purchase, based on appraisals of the property and a public hearing. The Planning Board must vote on any land use plan change; its recommendation then is transmitted to the City Commission for final action. You inquire whether the Planning Board member may represent the buyer in this transaction.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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 of 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.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes.]

This provision would prohibit the Board member from acting in a private capacity to sell any services or realty to the City, the political subdivision which he serves. However, in this case the sale of land is from the City to the business, and the Board member is retained and compensated by the business for his services as a broker rather than by the City. Under these circumstances, the Board member is not selling services or realty to any entity of the City. See CEO 85-63. Therefore, this provision is not applicable.

The Code of Ethics also provides:

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 provision would prohibit the Planning Board member from holding any employment or contractual relationship with a business entity which is subject to the regulation of or is doing business with his agency. In CEO 87-39, we advised that the agency of a city planning and zoning board member was that board, and not the city. See also CEO 88-17. Therefore, the subject official's agency would be the Planning Board. On the facts presented, we find that the business seeking to buy the property is not regulated by the Planning Board merely on the basis of seeking a land use change from that Board. See CEO 76-173. Also, the business is doing business with the City Commission or other entities of the City rather than the Planning Board, as that Board has no role in the actual sale of the property.

The second part of Section 112.313(7)(a), Florida Statutes, prohibits the Planning Board member from having any contractual relationship which would create a continuing or frequently recurring conflict of interest or impede the full and faithful discharge of his public duties. In CEO 85-61, we advised that a county commissioner could act as a broker to sell property to a nonprofit corporation which leased a public hospital from the county hospital district. In that opinion, we noted that the county commission had no authority to review the proposed purchase and the single transaction did not result in any continuing relationship between the commissioner and the corporation. We find the rationale of that opinion to be applicable here. The subject Board member has no involvement with the sale as part of his public duties and no authority to approve or recommend that the sale be approved. Further, the single action by the Planning Board regarding the land use designation would not create a continuing conflict and does not differ from any other transaction contingent on a land use change between private parties involving the Board member as a broker.

At the time the matter comes before the Planning Board for the change in land use designation, the voting conflict provision of Section 112.3143(3) would apply. That section states:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. 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. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one-acre, one-vote basis is not prohibited from voting.

Under this provision, the Board member would be prohibited from voting on the measure to change the land use designation, where the sale is contingent on such a change. Such a measure would inure to the special private gain of the Board member. See CEO 85-37. In addition, under Section 112.3143(2)(b), Florida Statutes, he would be prohibited from participating in the matter as a Planning Board member without first disclosing his interest as provided in that section. Under this provision, participation is defined as "any attempt to influence the decision by oral or written communication whether made by the officer or at his direction." Although not presented in your letter of inquiry, the Planning Board member, or any member of his firm, also would be precluded from appearing before the Planning Board in their private capacities on behalf of the buyer. See CEO 89-47.

Accordingly, we find that no prohibited conflict of interest would be created were the subject Planning Board member to act as real estate broker for a buyer of City owned property, although he would have to abstain from voting on a change in land use designation required as a condition of the sale.