CEO 95-24 -- August 31, 1995

CONFLICT OF INTEREST

COUNTY PLANNING COUNCIL MEMBER PARTNER

IN LAW FIRM REPRESENTING CITY IN COUNTY

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

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a county planning council member's law firm to provide legal services to a city located in the county. The city would not be subject to the regulation of, or be doing business with, the council, and no frequently recurring conflict or impediment to the full and faithful discharge of public duty would be present, provided neither the member nor his firm represents the city before the council. CEO's 76-53, 80-79, 83-27, 88-40, 89-27, 93-24, and 94-5 are referenced.

QUESTION:

Would a prohibited conflict of interest be created under Section 112.313(7)(a), Florida Statutes, were a partner in a law firm that represents a city to become a member of the planning council of the county in which the city is located?

Under the facts set forth below, your question is answered in the negative, subject to the caveat noted.

By your letter of inquiry and additional written information provided to our staff, we are advised that you are a partner in a law firm that has been retained by the City of . . . to act as "City Attorneys" and to perform virtually all legal services for the City. In relation to your firm's retention by the City, you state:

As part of my duties with [my firm], I regularly sit with the City of . . . City Commission during regular Commission meetings. Others [sic] lawyers from our firm, from time to time, also perform that same function. While our firm does advise the Commission as to procedural matters with respect to the planning process, we are not involved on a regular basis in writing amendments to the City's Comprehensive Plan, but do provide procedural advice relating to enactment of such amendments from time to time.

Further, you advise that your compensation from the City is not in any way contingent on or based in any way upon any approval which the Planning Council may issue and that you would have no financial interest in any City matter being considered by the Council.

Concerning the Broward County Planning Council, you state:

The Broward County Charter establishes the Broward County Planning Council. The members of the Planning Council are appointed by individual County Commissioners. I will be one of 15 [C]ouncil members, including the Chair. Pursuant to County Charter, seven of the members must be city commissioners of Broward municipalities and one of the members must be a Broward County Commissioner. The other seven members are not office holders. Article VI, '6.05[,] of the Broward County Charter, enumerates the powers and functions of the Planning Council, which include, among other functions, both an advisory role with respect to preparation and amendment of the County's Land Use Plan and consistency review of Municipal Land Use Plans with the County's Plan, and a regulatory role with respect to insuring the proposed development does not infringe on the right-of-way currently delineated on the County's Traffic Ways Plan as adopted by the County Commission.

The Planning Council serves in an advisory capacity to the County Commission on all matters under its jurisdiction[,] save implementation of the adopted Broward County Traffic Ways Plan. The Planning Council cannot independently adopt ordinances or enact laws, so any limited regulatory authority which the Planning Council has is of a lesser degree than that envisioned under subsection 112.313(7)(a)2. If the ability to enact ordinances or laws does not trigger a conflict, then it is difficult to envision how advisory authority to another[,] higher level of County government could create any conflict.

Further, you state that it is your understanding that the Council serves four major functions as follows:

1. Reviewing initial land use plans and certifying these plans as to consistency with the County's plan. The City of . . .'s Comprehensive Plan was adopted on May 15, 1989 and thus the Council would not be dealing with initial certification of the . . . plan again.

2. The second function of the Council is to review and make recommendations to the Broward County Commission with respect to proposed changes to the Broward County Land Use Plan. In this regard, my understanding is that the role of the Council is purely advisory and therefore not regulatory.

3. The Council also has the responsibility of re-certifying municipal plans. If a local government desires to amend its own land use plan, the plan must be consistent with the Broward County Land Use Plan. The Council certifies municipal plans as being consistent with the Broward County Land Use Plan, but does not have the power to adopt either the County land use plan or the municipal land use plan. In the event a municipality's land use plan is not certified as being consistent with the Broward County Land Use Plan, then Section 6.05E of the Broward County Charter provides that by operation of law, the County land use plan would be in effect. I have not found any authority for the Council to sanction a [c]ity in connection with re-certification.

4. The fourth function of the Council is with respect to implementation of the adopted Broward County Trafficways Plan. As I understand it, the Broward County Trafficways Plan designates, on a county-wide basis, those rights-of-way which the County believes should be reserved for roads. In the event that a municipality wishes to amend the County's Trafficways Play be deleting a certain reserved right-of-way, application must be made to the Council. In the event that the Council does not approve the deletion, the right-of-way remains in the Broward County Trafficways Plan. I have not found any authority for the Council to sanction the City or otherwise require the City to abide by its decision. Please note that in Broward County, the Trafficways Plan is tantamount to law and, therefore, the actions of the Council in approving amendments should not preclude my service pursuant to Section [112.313(7)(a)2].

In addition, you state:

With respect to recertification of municipal plans, I have been advised by the Broward County Planning Council staff that in the event that a municipality did not abide by the decision of the Planning Council denying recertification, then enforcement action, if any, would be brought by the Board of County Commissioners of Broward County, as opposed to the Planning Council. As a practical matter, this has never occurred, but the authority does rest with the County Commission and not the Planning Council.

With respect to the Trafficways Plan, in the event that a request for an amendment by a city is denied by the Planning Council, the enforcement mechanism would be through the platting process. At the time that a particular piece of property is submitted for plat approval, a review is made to insure compliance with the Broward County Trafficways Plan. If the piece of property does not comply, then the plat would be denied. The authority to approve plats once again resides in the Broward County Board of County Commissioners and not with the Planning Council. Thus, enforcement of decisions regarding trafficways would again reside with the Broward County Board of County Commissioners as opposed to the Planning Council.

Section 112.313(7)(a), Florida Statutes, 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.

The first part of this statute would prohibit your serving on the Council while your firm (and you personally by virtue of your partnership status in the firm, see CEO 80-79 and CEO 94-5) holds a contractual relationship with the City, if the City is subject to the regulation of, or is doing business with, the Council. The second part of this statute would prohibit your serving if your contractual relationship with the City would create a continuing or frequently recurring conflict between your private interests and the performance of your public duties or would impede the full and faithful discharge of your public duties.

We see no indication under your scenario that the City is doing business with the Council. Therefore, under the first part of the statute, the question which remains is whether the City is "subject to the regulation of" the Council. We have not often visited the issue of whether one public agency is regulated by another, as is evidenced by our dearth of opinions on the issue. However, our view of when one agency is subject to the regulation of another has been enunciated. In CEO 76-53 (Question 5), we stated:

In our view, regulation in [the context of Section 112.313(7)] necessarily involves an agency's power to require another agency to abide by decisions of the former.

Applying this test to the facts of your inquiry, we find that the City is not "subject to the regulation of" the Council. The bulk of the Council's duties appear to be advisory only, containing no power to require the City to abide by decisions of the Council. In addition, even regarding the County Trafficways Plan, it does not appear that the Council has any power to sanction or compel action by the City.

Regarding the second part of Section 112.313(7)(a), we also find no prohibited conflict, provided neither you nor your firm represents the City before the Council. See CEO 88-40, CEO 89-27, and CEO 83-27.

Having found no prohibited conflict as set forth above, it is unnecessary for us to determine whether the Council is a "legislative body" or whether any regulatory power it may exercise constitutes the "enactment of laws or ordinances," under Section 112.313(7)(a)2, Florida Statutes. Further, we note that Section 112.313(7)(a)2 does not obviate conflicts grounded in the second part of Section 112.313(7)(a). See CEO 93-24.

Accordingly, we find that a prohibited conflict of interest would not exist under Section 112.313(7)(a), Florida Statutes, were you to serve on the Council while your law firm represents the City, provided neither you nor your firm represent the City before the Council.

ORDERED by the State of Florida Commission on Ethics meeting in public session on August 31, 1995, and RENDERED this _____ day of September, 1995.

__________________________

William J. Rish

Chairman