CEO 01-16 -- September 11, 2001
CONFLICT OF INTEREST; VOTING CONFLICT
CITY PLANNING BOARD MEMBER'S CORPORATION PURCHASING PROPERTY FROM CITY
To: Richard J. Taylor, City Attorney (Sarasota)
No prohibited conflict of interest existed where a corporation of which a member of a city's planning board is president offered to purchase realty from the city; and no prohibited conflict of interest would be created were the corporation to purchase the realty. Section 112.313(3), Florida Statutes, addresses purchases by (and sales to) public agencies and political subdivisions, not the reverse; and under Section 112.313(7)(a), Florida Statutes, the member's public "agency" (the planning board) is not the public agency that will be doing business with the member's corporation via the realty sale. In addition, the member was correct in abstaining from participation and voting regarding a zoning ordinance concerning the property. CEO's 85-63 and 90-7 are referenced.
Would a prohibited conflict of interest be created under Section 112.313(3) or Section 112.313(7)(a), Florida Statutes, were a corporation of which a city planning board member is president to purchase realty from the city?
Your question is answered in the negative.
By your letter of inquiry and accompanying information, we are advised that Devin Rutkowski ("member") served as a member of the City of Sarasota Planning Board ("Planning Board") from February 1998 to January 2001. In addition, we are advised that he is president of a corporation which provided the only response to a request for proposals ("RFP") concerning a parcel of City-owned realty, resulting in negotiations between the City Commission and the corporation regarding the corporation's purchasing the property. However, you stress that no purchase/sale contract between the City and the corporation has been entered into. In addition, you advise that after the member's corporation responded to the RFP and after the City Commission authorized negotiations with the corporation regarding the property, the member abstained from voting and participation regarding a Planning Board matter concerning a proposed zoning ordinance necessary for development of the property.
In view of the situation described above, you inquire as to whether any conflict existed when the member held a seat on the Planning Board and as to whether any conflict would be created were the property to be sold to the corporation. For the reasons set forth below, we find that a conflict did not exist and that one would not be created under either Section 112.313(3) or Section 112.313(7)(a), Florida Statutes.
Sections 112.313(3) and 112.313(7)(a) provide, respectively:
DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's 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 the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision of any agency thereof, if he or she 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 or when such offices are on property wholly or partially owned by the legislator. 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.
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 or she 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 or her private interests and the performance of his or her public duties, or that would impede the full and faithful discharge of his or her public duties.
Section 112.313(3) is inapplicable to the situation you describe because, as you rightly pointed out in your memorandum to the member, it addresses sales to or purchases by public agencies and political subdivisions, not the reverse; see, for example, CEO 85-63.
Regarding Section 112.313(7)(a), the member's "agency" is the Planning Board, an agency separate from the City Commission [the agency the corporation (the entity with which he holds employment or a contractual relationship) would be doing business with by virtue of sale of the property]; no "regulation" of the corporation by the Planning Board is indicated; and no frequently recurring conflict or impediment to the full and faithful discharge of public duty is indicated. See CEO 90-7, a previous decision of ours virtually identical to your inquiry, in which we found no conflict.
However, under the circumstances, the member was correct in abstaining from voting and participation regarding the zoning ordinance matter. See CEO 90-7, Section 112.3143(3)(a), Florida Statutes, and Section 112.3143(4), Florida Statutes.
Accordingly, under the situation described herein, we find that the member had no conflict under either statute occasioned by his corporation's interface with the City; and we find that a conflict would not be created for the member under either statute were his corporation to purchase the property from the City.
ORDERED by the State of Florida Commission on Ethics meeting in public session on September 6, 2001 and RENDERED this 11th day of September, 2001.
Ronald S. Spencer
While the fact that Mr. Rutkowski no longer is a member of the Planning Board will, in and of itself, preclude conflict under Sections 112.313(3) and 112.313(7)(a), Florida Statutes, if the City actually contracts with or sells to his corporation, this opinion addresses more than the temporal issue, in order to provide guidance and analysis.
You advise that the RFP was prepared by the City administration and approved by the City Commission but that the Planning Board did not review or act on the RFP.
The two statutes within the Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes) most applicable to your inquiry.