CEO 88-29 -- April 28, 1988

CONFLICT OF INTEREST

CITY COUNCIL MEMBER EMPLOYED AS PROPERTY MANAGER

FOR OFFICE PARK AT WHICH CITY LEASES OFFICES

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

SUMMARY:

No prohibited conflict of interest exists under Section 112.313(7), Florida Statutes, where a city council member is employed as property manager for an office park at which the city temporarily has leased office space for its city hall, where the city's lease was entered into before he took office. Such a relationship between a public officer's employer and his agency would be grandfathered in under the rationale of previous opinions CEO's 86-71, 82-10, 80-88, and 77-36. No public disclosures of this relationship would have to be made, other than through the annual filing of a statement of financial interests. However, if the renewal or renegotiation of the lease comes before the city council, the council member would be required to abstain and make the appropriate disclosures under Section 112.3143(3), Florida Statutes.

QUESTION 1:

Does a prohibited conflict of interest exist where you, a city council member, are employed as property manager for an office park at which the city temporarily has leased office space for its city hall, where the city's lease was entered into before you took office?

Under the circumstances presented, your question is answered in the negative.

Through your letter of inquiry and a telephone conversation with our staff, we have been advised that you serve as a member of the Oldsmar City Council, first taking office in March of 1987. You also have advised that the City temporarily leases office space for its City Hall in an office park. In a telephone conversation with our staff, the City Manager advised that this lease began in September of 1986 and runs for a term of three years, with two one-year options for renewal. According to the City Manager, the rent paid by the City is fixed by the lease for the three-year period, with an annual adjustment based on the consumer price index, but is subject to negotiation for the fourth and fifth years. The City advertised and solicited proposals for office space, receiving several proposals which were evaluated based on price and location factors, the City Manager advised.

Recently you began working as property manager for the office park, you have advised. You are an associate realtor with a realty firm owned by your wife which has contracted with the corporation which owns the office park to provide property management services. The realty firm bills the property owner monthly, and you receive a monthly fee for your services. As property manager, you have no involvement with the leasing of space within the office park. Finally, you advise that the park is under contract to be sold by its current owner and that if the property is sold you may no longer be involved as property manager.

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).]

This provision prohibits a city council member from having any employment with a business entity which is doing business with the city. Although this provision does not expressly contain a grandfather clause, we have found that another provision of the Code of Ethics would have the effect of grandfathering in business relationships between an public agency and the employer of a public official which were entered into before the official took office. That provision, Section 112.316, Florida Statutes, states:

Construction. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. Examples of this interpretation are contained in previous opinions CEO 86-71, CEO 82-10, CEO 80-88, and CEO 77-36.

Accordingly, we find that no prohibited conflict of interest exists where you, a City Council member, are employed as property manager for an office park at which the City temporarily has leased office space for its City Hall, where the City's lease was entered into before you took office. Please note that the current lease would be grandfathered in only until the expiration or renegotiation of that lease.

QUESTION 2:

Are there any public disclosures, other than the annual financial disclosure you are required to make as a member of the city council, which should be made to disclose your employment as property manager for an office park at which the city temporarily has leased office space for its city hall?

In addition to the annual filing of a statement of financial interests as required by Section 112.3145(2), Florida Statutes, there are several other disclosure requirements contained in the Code of Ethics. In particular, Section 112.313(9), Florida Statutes, requires a public officer who is an officer, director, partner, proprietor, associate, general agent, or owner of more than a five percent interest in a business entity "which is granted a privilege to operate in this State" to file a statement disclosing such facts. We have published Commission on Ethics Form 3, Disclosure of Specified Business Interests, for use in making this disclosure. The phrase, "granted a privilege to operate," is defined in Section 112.312(15), Florida Statutes, as follows:

>Person or business entities provided a grant or privilege to operate= includes state and federally chartered banks, state and federal savings and loan associations, cemetery companies, insurance companies, mortgage companies, credit unions, small loan companies, alcoholic beverage licensees, pari-mutuel wagering companies, utility companies, and entities controlled by the Public Service Commission or granted a franchise to operate by either a city or county government. Clearly, neither an office park nor a realty firm falls within this definition.

In addition, Section 112.3145(4), Florida Statutes, requires a city council member to file a quarterly report of the names of clients represented for a fee or commission before agencies of his city. However, it does not appear that you have undertaken to represent the office park or the realty firm before any City agency.

Regarding voting conflicts of interest, Section 112.3143(3), Florida Statutes, provides:

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.

As it appears from the circumstances presented that renewal or renegotiation of the lease between the office park and the City would inure to your special gain or to the special gain of a principal by whom you are retained, it appears that you would be required to abstain, announce the conflict of interest at the meeting, and file a memorandum of voting conflict within 15 days of any meeting at which a vote is taken on the renewal or renegotiation of the City's lease. We have adopted Commission on Ethic Form 8B, Memorandum of Voting Conflict, for use by local officials in making the disclosure required by this law.

Your question is answered accordingly.