CEO 77-64 -- April 21, 1977
CONFLICT OF INTEREST
CHAIRMAN OF MUNICIPAL PLANNING AND ZONING BOARD REAL ESTATE AGENT FOR PROPERTY OWNERS
SELLING LAND TO CITY
To: (Name withheld at the person's request.)
Prepared by: Staff
Section 112.313(3), F. S. 1975, prohibits an officer of a political subdivision from selling realty to any agency of that subdivision. Thus, a prohibited conflict of interest was created where the chairman of a municipality's planning and zoning commission represented, in his capacity as a real estate salesman, property owners in the sale of land to the city. It is further provided within the Code of Ethics that no public officer or employee shall "have or hold any employment or contractual relationship . . . that would impede the full and faithful discharge of his public duties." Section 112.313(7)(a), F. S. 1975. The subject commission chairman stood to benefit financially from the sale and negotiated directly with the city, thus creating a conflict with his duty to protect the public interest.
Section 112.3175, F. S. 1975, provides that a contract executed in violation of the Code of Ethics, as in the instant case, is voidable.
Where the chairman of a municipality's planning and zoning commission privately represented, in his capacity as a real estate salesman, property owners in the sale of land to the city, was a prohibited conflict of interest constituted so as to make voidable by the city the contract for the sale of the land?
This question is answered in the affirmative.
You advise in your letter of inquiry that during 1976 the city of which you are city attorney entered into a purchase and sale contract with property owners for the purchase of a parcel of land to be utilized as a park by the city at a total purchase price of $300,000. The negotiations for the sale of the property were handled by a real estate salesman, representing the property owners, who at the same time served as the appointed chairman of the city planning and zoning board, the duties of which include the recommendation for establishment of city parks. Were the contract to be fulfilled, said real estate salesman's firm would receive a $30,000 sales commission.
You further advise that the matter became an issue in the most recent municipal election; candidates supporting cancellation of the contract were elected to the city council, and the subject planning and zoning commission chairman has resigned from office. Shortly after the newly elected council members assumed office, they canceled the bond resolution intended to fund the subject property purchase. Attorneys for the landowners now are threatening suit to enforce the contract. Based on this set of circumstances, the city council wishes to know whether the contract was executed in violation of the Code of Ethics for Public Officers and Employees so as to be voidable under s. 112.3175, F. S. 1975.
The Code of Ethics provides in relevant part as follows:
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 or 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. . . . [Section 112.313(3), F. S. 1975; emphasis supplied.]
An officer of a political subdivision accordingly is prohibited from selling realty to any agency of that subdivision; thus, a member of a municipal planning and zoning board is precluded from acting in his private capacity to sell realty to the governing board of that municipality.
While it may be argued that the subject public officer/real estate salesman acted merely as an agent for the actual sellers, we would point out that he, as well as the property owners, stands to benefit financially by the sale. One of the essential purposes of the Code of Ethics is to preclude the use of public office for private gain other than remuneration provided by law. See s. 112.311(1), F. S. 1975. Toward this end, the italicized portion of s. 112.313(3), quoted above, contemplates those situations in which a public officer or employee could obtain preferential treatment by virtue of his public position and could benefit thereby. Accordingly, we find the prohibition contained in s. 112.313(3) applicable to the instant question.
It is further provided within the Code of Ethics that no public officer or employee shall "have or hold any employment or contractual relationship . . . that would impede the full and faithful discharge of his public duties." Section 112.313(7)(a), F. S. 1975. One who is a member of a planning and zoning board has the duty to protect the public interest in planning and zoning matters. In the instant case, however, the private financial interest held by the subject commission chairman is of a nature so as to impede the discharge of his public duty. You have advised our staff that no recommendation was made by the planning and zoning commission as to the purchase of the subject property. Rather, the commission chairman, in his private role as real estate agent for the property owners, negotiated directly with the city and without the public benefit of a recommendation from the entire commission, as provided by law.
We therefore find that a prohibited conflict of interest pursuant to s. 112.313(3) and (7), F. S. 1975, was constituted in the above- described circumstances. Section 112.3175, F. S., states:
Remedies; contracts voidable. -- Any contract which has been executed in violation of this part is voidable:
(1) By any party to the contract.
(2) In any circuit court, by any appropriate action, by:
(a) The commission.
(b) The Attorney General.
(c) Any citizen materially affected by the contract and residing in the jurisdiction represented by the officer or agency entering into such contract.
Accordingly, it is our opinion that the contract for sale of the land to the city is voidable under the terms of s. 112.3175.