CEO 88-78 -- December 1, 1988

CONFLICT OF INTEREST

COUNTY PLANNING COMMISSION APPOINTEE PARTNER IN FIRM PROVIDING

REPORTING SERVICES REGARDING COUNTY AND MUNICIPAL GOVERNMENT

To: Mr. Kenneth B. Cuyler, County Attorney, Collier County (Naples)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a member of a county planning commission to be a partner in a firm which provides reporting services regarding municipal and county government. However, her activities would be limited by several prohibitions contained in the Code of Ethics, including Sections 112.313(4), 112.313(6), and 112.313(8), Florida Statutes. CEO's 88-21, 86-66, 86-2, 84-108, and 80-49 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were an appointee to a county planning commission to continue her partnership in a firm which provides reporting services regarding municipal and county government?

Your question is answered in the negative, subject to the restrictions noted below.

In your letter of inquiry you advise that the Collier County Board of County Commissioners is in the process of appointing new members to the County Planning Commission, and that Mary Lee Layne is an applicant for one of these vacancies. You further advise that she is a partner in a research and reporting firm which produces a weekly report concerning all meetings of municipal and County government. The firm also provides clients with information and material pertaining to the local lawmaking process. Her clients include developers, engineers, attorneys, local community groups, and private citizens. Some of these clients or their representatives may appear before the Planning Commission. You question whether a prohibited conflict of interest will be created if she is appointed to the Planning Commission and continues to pursue her present business activities.

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).]

The first portion of this provision prohibits a public officer from having any employment or contractual relationship with a business entity which is subject to the regulation of or doing business with her agency. The term "business entity" is defined by the Code of Ethics to include

any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed indiviual, or trust, whether fictitiously named or not, doing business in this state. [Section 112.312(3), Florida Statutes (1987).]

"Agency" means

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority or political subdivision of this state therein; or any public school, community college or state university. [Section 112.312(2), Florida Statutes (1987).]

Therefore, a Planning Commission member would be prohibited from having an employment or contractual relationship with a particular client if that client was regulated by, or doing business with, the Planning Commission. In previous advisory opinions we have advised that a business entity is "doing business" with an agency where the parties have entered into a lease, contract, or other type of legal arrangement under which one party would have a cause of action against the other in the event of a default or breach. See CEO 86-2, for example.

In the case of In re John Zerweck, Complaint No. 79-74, 2 F.A.L.R. 1097-A (1980), we found that a city commission did not "regulate" developers within the meaning of Section 112.313(7)(a), Florida Statutes, as the active enforcement of land development ordinances through the review of plans, permitting, and inspections had been delegated to the various boards and departments of the city. There, we stated that any regulation by the city commission was indirect at most and that the first portion of Section 112.313(7)(a) concerning employment with a business entity "subject to the regulation of" the public body of the public official did not apply to the factual circumstances presented. As you have indicated in this case that the Planning Commission serves as the land use and zoning advisory body to the County Commission, we conclude that any regulation on the part of the Planning Commission would be incidental and passive and also not within the contemplation of the term "regulation" as used by the Legislature in Section 112.313(7)(a).

Section 112.313(7)(a), Florida Statutes, also would prohibit a Planning Commission member from having any employment or contractual relationship which would create a continuing or frequently recurring conflict with her public duties or which would impede the full and faithful discharge of those responsibilities. In previous advisory opinions we have found that there was not a sufficient connection between the reporting services provided by board members and their responsibilities as members of various boards to conclude that such a conflict existed. See CEO 88-21 and CEO 86-66.

Please be advised, however, that the following provision within the Code of Ethics would prohibit a Planning Commission member from using her public position to obtain information not available to the general public for private gain:

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 of any other person or business entity. [Section 112.313(8), Florida Statutes (1987).]

We additionally would caution that Section 112.313(6), Florida Statutes, prohibits a Planning Commission member from using her public position or performing her official duties to secure a special benefit for herself or her clients.

Also, the possibility exists that a client could solicit the services of a Planning Commission member in an attempt to influence a vote or other action in which she was expected to participate in her official capacity. Under these circumstances, her compensation for providing reporting services would violate the following provision:

UNAUTHORIZED COMPENSATION. -- No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity. [Section 112.313(4), Florida Statutes (1987).]

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.

This provision prohibits a county officer from voting on a measure which inures to her special private gain or the special private gain of a principal by whom she is retained. In previous opinions we have advised that a public officer was not retained by the clients of his public relations firm or the individuals who advertised in his real estate guide. See CEO 84-108 and CEO 80-49. Here, we similarly are of the view that the clients of the subject reporting service would not be principals of the Planning Commission member, but persons with whom she simply would have contractual relationships. While Section 286.012, Florida Statutes, would appear to allow an abstention by the Planning Commission member in matters involving her clients because of the appearance of a conflict, such abstention would not be required.

Accordingly, we find that no prohibited conflict of interest would be created were the subject County Planning Commission member to be a partner in the research and reporting firm provided that she conducts her activities in accordance with the above limitations.