CEO 75-52 -- March 14, 1975
To: Joseph H. Weil, Village Attorney, North Bay Village
Prepared by: Patricia Butler
A public officer is required to disclose appearances on behalf of another before his own agency or any agency at the same level of government as his agency. Section 112.3145(1)(c), F. S., as amended by Ch. 74-177, Laws of Florida. This section is construed to require a municipal official to disclose those clients represented before an agency of the municipality in which he or she serves. Accordingly, Mr. Weil, as part-time city attorney for North Bay Village, must disclose on CE Form 2 representations before agencies of the village. A voting conflict of interest does exist where a member of a planning and zoning board votes on the granting of a variance of an applicant whom the board member represents as a realtor in another matter in another city. Under s. 112.312(7)(i), F. S., the board member's potential financial profit from the variance places in conflict his public duty and his private interest. Accordingly, the board member must file CE Form 4, whether or not he abstains from voting. A voting conflict of interest is not indicated when a member of the planning and zoning board votes on a variance matter of an applicant who may advertise the variance in the board member's newspaper. Under part III, Ch. 112, F. S., no conflict is presented in voting situations when the matter inures to the benefit of a public officer as a member of a special class. The advertisement in question would be of benefit to the board member in question only as a member of the special class.
1. Must I, as the part-time city attorney for North Bay Village, file a Quarterly Statement of Disclosure of Clients Represented Before Agencies, CE Form 2, in order to disclose my representation of a client before the building department of a neighboring city?
2. When there is a contradiction between a provision of the Charter of North Bay Village and part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida, as to voting on issues which create a conflict of interest, does the state law supersede the municipal ordinance?
3. Is there a voting conflict of interest under s. 112.314(2), F. S., when a member of the planning and zoning board, Mr. Joseph Grabois, is called to vote on the granting of a variance from the zoning code to an applicant company which Mr. Grabois represents in his capacity as a registered real estate broker in another matter in another city?
4. Is there a voting conflict under s. 112.314(2), supra, which must be disclosed on CE Form 4 where a member of the North Bay Village Planning and Zoning Board, Mr. David Glass, is called to vote on the granting of a variance from the zoning code to an applicant who may advertise in Mr. Glass's newspaper if the variance is granted?
Question 1 is answered in the negative.
The applicable section of the disclosure law states in part:
Any public officer or candidate who represents another before his own agency or any agency at the same level of government as his own agency, except in ministerial matters, for a fee or commission shall list the agencies before which he appears, and the name of the client whom he represented, in a quarterly report subsequent to such appearance. [Section 112.3145(1)(c), F. S.; emphasis supplied.]
Although the phrase "same level of government" is not defined by law, we read this section to require a municipal official to disclose those clients whom he represents before an agency of the municipality in which he serves. To reach any other conclusion would, in our opinion, go beyond the intent of the disclosure law and impose the unnecessary burden of reporting information which presents little or no potential conflict of interest.
Therefore, in your case in which you represent a client before the building department of a neighboring city, there is no need for disclosure on CE Form 2. However, if you at any time represent clients before agencies of North Bay Village, you will be required to disclose such representations.
Question 2 is answered in the affirmative.
Enclosed please find a copy of a previous opinion of this commission, CEO 75-20, the rationale of which is equally applicable to your question.
Question 3 is answered in the affirmative.
As a member of a planning and zoning board, Mr. Grabois is a public officer under s. 112.312(7)(i), F. S. He is also a registered real estate broker acting as exclusive agent for the real estate development and holding company in a condominium development in another city. If the variance is granted, Mr. Grabois may become the exclusive agent for the applicant in this development.
It is our opinion that this prospect creates a conflict of interest between Mr. Grabois' public duties and his private interests. This conclusion seems clear since Mr. Grabois would profit financially in the event that the variance -- over which he has some control -- is granted. Therefore, whether he decides to vote or to abstain on the issue, he is required, pursuant to s. 112.314, supra, to file CE Form 4, Disclosure of Conflicts of Interest in a Voting Situation, disclosing the conflict.
Question 4 is answered in the negative.
In this situation Mr. David Glass, a member of the planning and zoning board, is the editor and publisher of the local newspaper. It is possible that if the board approves the variance for the real estate development and holding company (hereinafter referred to as the applicant), it will advertise in Mr. Glass's newspaper.
It is our opinion that no conflict arises by the voting of Mr. Glass on the variance. As noted in question 2, there is no conflict presented in voting situations when the matter inures to the benefit of a public officer as a member of a special class. If Mr. Glass receives any benefit at all from the matter before the board, it will be to his advantage as a member of the newspaper profession, a special class. Furthermore, the personal benefits which this member may receive from advertising by the applicant are so attenuated as to present no conflict requiring public disclosure.