CEO 90-44 -- June 14, 1990

CONFLICT OF INTEREST; VOTING CONFLICT

CITY/COUNTY PLANNING COMMISSION MEMBER HAVING BUSINESS RELATIONSHIPS WITH ENTITIES COMING BEFORE COMMISSION

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

SUMMARY:

No prohibited conflict of interest was created where a member of a local planning commission assigned his interest in a parcel of property to a party coming before the commission for rezoning of the parcel. However, a voting conflict of interest was created where the commissioner voted and participated in matters relating to the parcel, where the matters would tend to advance a subsequent payment due to him under the assignment of the contract for purchase.

No prohibited conflict of interest was created where the planning commissioner sought purchasers for a parcel of property and participated in meetings with entities of the City other than the planning commission to explore sale of the property to the City. No voting conflict of interest was presented in this instance based on the fact that the commissioner was not present when the subject parcel was considered for rezoning, where the sale was contingent on such rezoning.

No prohibited conflict of interest was created where the planning commissioner engaged in business transactions for billboard placement with landowners, one of whom came before the planning commission prior to the transaction with the commissioner on an unrelated matter. Such appearances before the commission by the landowner would not occur on a continuing or frequently recurring basis or impede the full and faithful discharge of the commissioner's public duties. In addition, he was not prohibited from voting on matters which might affect the interests of persons with whom he had business relationships in unrelated matters where the vote would not have affected his personal interests and he was not retained by those persons.

QUESTION 1:

Was a prohibited conflict of interest or voting conflict of interest created where you, a member of the Tallahassee/Leon County Planning Commission, participated in considering the rezoning of a parcel of property, where you had assigned your contract for purchase of the parcel to another party?

Your question is answered in the negative with regard to a conflict of interest and in the affirmative with regard to a voting conflict.

In your letter of inquiry and in subsequent correspondence with our staff, you advise that you serve as a member of the Tallahassee/Leon County Planning Commission. You advise that you entered into a contract for purchase of a parcel of property and subsequently assigned your rights under that contract to another party. That assignment required a payment at the time of the assignment and a subsequent payment by a later date. Prior to the second payment, the party to whom you assigned the contract applied to rezone the parcel. You voted on two occasions regarding this rezoning, which was rejected. The party then applied for development under the existing zoning. Neighbors opposed to the development lobbied you to vote against any development and indicated a willingness to purchase the property rather than see it developed. You conveyed this information to the party to whom you had assigned your contract. An agreement was made between this party and the neighbors for purchase of the property without your further involvement. Your only other relationship with the party to whom you assigned this contract is for the rental of office space for your business.

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.]

This section would prohibit you from holding a contractual relationship with a business entity which is subject to the regulation of your agency. We find that you held a contractual relationship with the party to which you had assigned your contract at the time that party applied for a zoning change. Even though closing on the property had taken place, the contract had not yet been fully performed in that you were still due payment under its terms. However, we do not find the company to which you assigned your contract to be subject to the regulation of the Planning Commission by virtue of an appearance before the Commission on one matter. If this were the case, planning commissioners and similar officials could not hold business relationships with virtually anyone in the community. Similarly, we do not find that this single rezoning appearance by the party would create a continuing or frequently recurring conflict between your private interests and your public duties as a Planning Commissioner or would impede the full and faithful discharge of those duties. In CEO 81-84, we advised that this provision should not prohibit every person whose private employment involves real estate sales, land development, or contracting from serving on a planning board. It is only where such interests are substantially affected by the work of the planning commission that a prohibited conflict would be created. In that opinion, we found no prohibited conflict of interest where a member of a town planning commission was president of a construction and land development company. See also CEO 87-32. Under the facts presented, we find the rationale of that opinion to be applicable where you only held a creditor relationship and a lease with the owners of the parcel under rezoning consideration.

In addition, you indicate that you voted twice concerning the rezoning. The Code of Ethics for Public Officers and Employees also 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. [Section 112.3143(3), Florida Statutes.]

This provision would prohibit you from voting on a matter if it inured to your special private gain or that of a principal by whom you were retained. You indicate that the only relationship you held with the company assuming your rights under the contract was as assignor and lessee. Neither of these would make that party a principal by whom you were retained. In CEO 87-96, we advised that a city commissioner could vote on annexation of a parcel of property where he previously had benefited through its sale by his business associate, but where he had no ongoing relationship with the owners of the property. In CEO 83-42, a mayor was permitted to vote on settlement of a lawsuit between the City and his landlord where the measure did not inure to his special private gain, as we found that a tenant is not "retained" by his landlord. However, in both these opinions we advised that there was sufficient appearance of a conflict of interest to permit the public officer to abstain at his discretion pursuant to Section 286.012, Florida Statutes.

Unlike those situations, materials enclosed with your letter of inquiry indicate that the terms of your assignment of the contract to the business entity applicable at the time of your vote provided for the second payment to you to occur not later than a date certain, which was after the consideration of the zoning change. In addition, you indicate that your understanding with the party provided that you would be compensated earlier if the party received a construction loan. Under these circumstances, approval of the rezoning would have enhanced the value of the property in question and expedited the development process. Therefore, approval of the rezoning could have advanced the payment due to you under the assignment agreement. In addition, you indicate that eventually you received a lesser payment than the assignment agreement originally required and that this was due in part to the property not being developed. The original intent of the parties in developing the property appears to have been to secure the necessary rezoning, which was denied in the votes at issue in which you participated. On this basis, approval of the rezoning would have inured to your benefit by making possible your full payment under the contract. Therefore, we find that the votes in question inured to your special private gain and you were precluded from voting. Also, we note that where a voting conflict exists under this provision, an appointed public officer is prohibited from even participating in the matter under Section 112.313(2)(b), Florida Statutes, without first disclosing the nature of his interest pursuant to that section.

In addition, there is some indication in materials submitted with your letter of inquiry that there have been allegations that your conduct was in violation of Section 112.313(6), Florida Statutes, which provides:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly 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.

For purposes of this provision, the term "corruptly" is defined as follows:

'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(7), Florida Statutes (1989).]

This provision would prohibit use of your position on the Planning Commission to provide a benefit to yourself or others, if such use was with wrongful intent and in a manner inconsistent with the proper performance of your public duties. The existence of specific wrongful intent cannot be determined in the context of an advisory opinion and so we are unable to determine the applicability of this section. See CEO 81-47 and CEO 82-28.

Accordingly, we find that no prohibited conflict of interest was created where you served on a local Planning Commission and had assigned your interest in a parcel of land to a party coming before the Commission for rezoning of that property. However, we find that a voting conflict of interest existed where you voted and participated in matters relating to the parcel as a member of the Planning Commission.

QUESTION 2:

Was a prohibited conflict of interest created where you attempted to secure buyers for a parcel of property which later came before the Planning Commission for planned unit development consideration?

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

In your letter of inquiry, you advise that you, along with a number of other real estate brokers, attempted to secure buyers for a parcel of property. From materials submitted with your letter, it appears that the City of Tallahassee also was interested in acquiring this parcel. An agent for the owner requested your advice in marketing the property due to your expertise in the real estate field. You advise that you were not compensated for this advice and that you never had a contractual relationship of any kind with the owner of the property or his agent. You indicate that you suggested a meeting with City officials due to their interest in the property. You advise that you disclosed to those present in this meeting that you had a potential interest in the property and that you were meeting as a real estate broker rather than as a Planning Commissioner. City representatives in this meeting included the City Manager and the head of the Parks and Recreation Department.

Ultimately, you advise, you were not successful in obtaining a buyer for the property, but another party made an offer for part of the property contingent on rezoning to an office-residential designation. You advise that you had no role in securing this contract. The owner's representative requested that you attend a meeting with the City's Chief of Land Use Administration for purposes of clarifying procedures regarding land use changes. Again, you advise that you made it clear that you were attending in your capacity as a real estate broker rather than in your public capacity and that you might have a financial interest in the property. You advise that this financial interest was that, should the amendment be approved, a potential buyer you had located might be interested in the property. The matter came before the Planning Commission, which rejected the rezoning, but you advise that you were not present at the meeting. Subsequently, the City Commission also denied the rezoning.

Section 112.313(7)(a), Florida Statutes, cited in response to your first question, would not apply based on your representation that you had no employment or contractual relationship with the owners of the property. You advise that you held no listing or contract with any of the parties involved and were not compensated in connection with the property or for your advice or consultation.

In addition, 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.

(d) Beginning public employment.

This section would prohibit you from acting in your private capacity to sell realty to the City, the political subdivision which you serve. You appeared as a broker at a meeting to explore the possibility of selling the parcel to the City. Therefore, it appears that you potentially could be acting to sell the subject property. However, under the rationale CEO 85-85 and CEO 81-29, we find that even were you to appear on behalf of the owner, you would not be in violation of this provision so long as the Planning Commission had no role in the determination to purchase the property.

Finally, we must consider Section 112.3143(3), Florida Statutes, which precluded you from voting on matters which would inure to your special private gain. In CEO 85-37, we advised that a voting conflict would be presented where a sale was contingent on a zoning change and the sale would allow a planning commission member to write title insurance for the property. See also CEO 87-86, where a city council member was precluded from voting on a shopping center development agreement where he was negotiating to lease space in the center. In your case, you advise that you had located a potential buyer for the property based on the zoning change. On this basis, voting on the matter before the Planning Commission would be prohibited. In addition, participation would be prohibited without appropriate disclosure of your interest pursuant to Section 112.3143(2)(b), Florida Statutes. However, you advise that you were not present at the meeting where the matter was considered and did not vote or participate in any way. On that basis, you would not be in violation of the cited provision.

With regard to advising persons how to secure zoning changes from the Planning Commission, Section 112.313(6), cited in our response to your first question, prohibits use of your position to benefit yourself or others where such use is with wrongful intent and in a manner inconsistent with the proper performance of your public duties. However, as in Question 1, we cannot make a determination of wrongful intent in the context of an advisory opinion. In addition, Section 112.313(8), Florida Statutes, prohibits a public officer from using information acquired through his public duties and not generally available to the public to benefit himself or another. Under the facts presented, there is no indication whether such information was used to benefit the landowner. Therefore, we do not address the applicability of this section.

Accordingly, under the circumstances presented we find that no prohibited conflict of interest was created where you, a Planning Commissioner, sought purchasers for a parcel of property and participated in meetings with entities of the City other than the Planning Commission to explore sale of the property to the City. In addition, we find that no voting conflict of interest was presented based on the fact that you were not present when the subject parcel was considered for rezoning.

QUESTION 3:

Was a prohibited conflict of interest created where you owned a sign company while serving on the Planning Commission, where a landowner with whom you did business previously came before the Commission on an unrelated matter?

Your question is answered in the negative.

You advise that you own a sign company that competes for sites for outdoor advertising within the City limits. You advise that you located several sites whose current zoning would permit signs and contacted two business entities which owned these sites regarding leasing land for a sign. The owners agreed to allow you to go through the permitting process, although details of the agreement had not been finalized as of the time of your opinion request. You advise that the owner of one of these parcels came before the Planning Commission on a rezoning matter prior to the time of your contact with him. To your knowledge, the owner of the other site did not come before the Commission, either personally or through his corporation, during your term. You note that when a potential conflict situation arose, you had the staff attorney advise you whether a conflict was present. If the attorney indicated no conflict was present, you still would disclose your relationship and then act and vote according to the merits of the specific application. You inquire as to whether these relationships created a prohibited conflict of interest.

Section 112.313(7)(a), cited in response to your earlier questions, also can be applied to your conduct in this instance. You would have a contractual relationship with the lessor of a site. However, as in Question 1, the lessors in the two instances noted would not be considered to have been regulated by the Planning Commission where they either did not appear before the Commission or appeared only once. In addition, the second part of the statute would not be implicated on the basis of a single appearance on an unrelated matter. Such an appearance would not represent an impediment to the full and faithful discharge of your public duties or present a continuing and frequently recurring conflict of interest. This is not to say that a prohibited conflict of interest never would arise in similar situations, as we can envision circumstances where multiple or frequent appearances before a planning commission by a landowner or the nature of the commissioner's relationship with that landowner could affect his duties with the commission.

In addition, Section 112.3143(3), Florida Statutes, would not indicate a voting conflict of interest where a vote did not provide any specific benefit to you and you were not retained by any of the parties coming before the Commission. In CEO 81-8, no voting conflict was found where a county commissioner voted on matters affecting the interests of a business partner which did not affect the commissioner's interests. See also CEO 81-45. Under this rationale, where a measure would benefit the interests of a party with whom you only had a lease agreement in an unrelated matter, no voting conflict would be presented. See CEO 83-42, where no voting conflict was found where a mayor voted on settlement of a lawsuit between his landlord and the city.

Again, we note that Section 112.313(6), Florida Statutes, would prohibit you from using your position on the Commission to advance your private business relationships or benefit a business associate where such use was with wrongful intent and in a manner inconsistent with the proper performance of your public duties. As in our response to your first question, however, we must decline to address this issue in the context of an advisory opinion.

Accordingly, we find that no prohibited conflict of interest was created where you, a Planning Commissioner, engaged in business transactions for sign placement with landowners, one of whom came before the Planning Commission on an unrelated matter. In addition, we find that you were not prohibited from voting on matters which may affect the interests of persons with whom you had business relationships in unrelated matters, where the vote would not have affected your personal interests and you were not retained by those persons.