CEO 89-65 -- November 30, 1989

CONFLICT OF INTEREST

ASSISTANT CITY ATTORNEY SELLING HISTORIC

PROPERTY TO CITY

To: Frank Gummey, III, City Attorney, City of Daytona Beach

SUMMARY:

No prohibited conflict of interest would be created were an assistant city attorney to sell his residence to the city for historic preservation and use as a public community facility. Although Section 112.313(3), Florida Statutes, prohibits a city employee from selling realty to his city, Section 112.313(12)(e), Florida Statutes, provides an exception where the employee is the sole source of supply within the political subdivision. As the realty owned by the employee has a unique historical value, Section 112.313(12)(e) would permit the employee to sell the property to the city. The assistant city attorney should remove himself from any decision by the city in regard to the purchase to avoid a potential violation of Section 112.313(6), Florida Statutes. CEO 79-6, CEO 86-83, and CEO 88-51 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were an assistant city attorney to sell his current residence to the city for historic preservation and use as a public facility?

Your question is answered in the negative, under the circumstances presented.

In your letter of inquiry you advise that . . . , an Assistant City Attorney on a full-time, salaried basis, wishes to sell property to the City. The property in question was purchased by him and his wife in 1980. On this property is a house which was built in 1890 by one of the City's founders and which is believed to be the oldest existing residence in the area. The attorney and his wife spent approximately $30,000 renovating the house, as well as considerable time and energy.

During the summer of 1989, a local citizen-based community appearance and development planning process was sponsored by local government and private sources. One of the ideas suggested during the process was that the City acquire the residence, preserve it, and allow its use as a public facility. City officials recommended that the City acquire the property and administer its use through the Parks and Recreation Department. Therefore, the City is proposing to purchase the property from the Assistant City Attorney. You wish to know if the property can be purchased without violating any provision of the Code of Ethics for Public Officers and Employees.

In regard to your question, Section 112.313(3), Florida Statutes, provides:

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.

Although it does not appear from the facts you have provided that the Assistant City Attorney is or was involved in the City's decision to purchase the property, he clearly would be acting in a private capacity to sell to his agency, the City. Technically, such action would be prohibited by Section 112.313(3). However, an exception to this prohibition is provided by Section 112.313(12)(e), Florida Statutes, when:

The business entity involved is the only source of supply within the political subdivision of the officer or employee and there is full disclosure by the officer or employee of his interest in the business entity to the governing body of the political subdivision prior to the purchase, rental, sale, leasing, or other business being transacted.

The property owned by the Assistant City Attorney, with its historical value, clearly is of a unique nature. The facts you have described indicate that it is the only such property which would serve the historical and public purpose intended by the City. Therefore, we believe that such a purchase would be exempted pursuant to Section 112.313(12)(e). See CEO 79-6, CEO 86-83, and CEO 88-51. Please note that Section 112.313(12)(e) requires the Assistant City Attorney to disclose his interest in the property to the City. Commission on Ethics Form 4A, Disclosure of Business Transaction, Relationship, or Interest, should be used for this purpose.

In addition, we bring to your attention Section 112.313(6), Florida Statutes, which states:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

We suggest that the Assistant City Attorney remove himself as much as possible from any decision by the City concerning the purchase of the property, to avoid even the appearance of misusing his public position.

Accordingly, we find that under the circumstances presented no prohibited conflict of interest would be created were the subject Assistant City Attorney to sell property of a unique historical nature to the City for use as a historic public facility.