CEO 81-51 -- September 17, 1981

CONFLICT OF INTEREST

MUNICIPAL BUILDING OFFICIAL INSPECTING CONSTRUCTION OF CONDOMINIUM DEVELOPMENT IN WHICH HE HAS PURCHASED A UNIT

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

SUMMARY:

Section 112.313(7), Florida Statutes, prohibits a public employee from having a contractual relationship with a business entity which is regulated by his agency. Under this provision, a municipal building official may contract for the purchase of a condominium unit as a personal residence within the municipality prior to the construction and completion of all building inspections so long as he removes himself from personal involvement and decision-making in connection with the building department's regulation of the construction of his residence and the entire condominium development. CEO 76-75 and CEO 81-20 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were the Chief Building Official of a municipal Building Department to contract for the purchase of a condominium unit as a personal residence prior to the construction and completion of all building inspections, where the Building Department regulates the building inspections for the condominium development and the Chief Building Official participates in the decision-making in connection with inspections for the condominium residence and the entire condominium development?

Your question is answered in the affirmative.

In your letter of inquiry you question whether the Code of Ethics for Public Officers and Employees would permit the Chief Building Official of a municipal Building Department to contract for the purchase of an uncompleted condominium unit as a personal residence where he has not completely removed himself from personal involvement and decision-making in connection with inspections of his residence and where he has not left departmental regulation related to the inspections of the residence and condominium development to other employees within the Department.

The Code of Ethics 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, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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 (1979).]

In a previous opinion, CEO 81-20, a copy of which is enclosed, we advised that a prohibited conflict of interest would be created were the chief building inspector of a city to contract for the construction of a warehouse complex on property owned by him within the city, unless two conditions were met. The first condition was that building inspection services regarding the warehouse complex be made by an agency independent of the city, which would eliminate the conflict inherent in the chief building inspector or his subordinates inspecting work being done for himself. The second condition was that the contractor and subcontractors on the warehouse complex not be doing other work within the city which would subject them to the regulation of the building inspector at the time he had contracted with them.

In an earlier opinion, CEO 76-75, a copy of which is enclosed, we advised that the director of a municipal growth management department, which was responsible for site plan review, zoning approvals, and various inspections and approvals during actual construction, could contract for the construction of a personal residence within the city. Although we found that the director would have a contractual relationship with a business entity subject to the regulation of his department, we found that it would be an unreasonable and unnecessary restraint upon the director to deny him the privilege of building his home within the city which employed him. In addition, the director was to remove himself from personal involvement and decision-making in connection with the building of his home, leaving departmental regulation related to the construction to other employees within the department.

We remain of the view that the Code of Ethics should not be interpreted to prohibit a municipal employee from building or purchasing his personal residence within the city which employs him. However, we recognize the conflict of interest inherent in the subject Building Official's remaining personally involved in decisions relating to his Department's regulation of the construction of his residence and the condominium development. In order to balance these competing goals, we are of the opinion that the subject Building Official should remove himself from personal involvement and decision-making in connection with the construction of his residence and the condominium development, so as to minimize the conflict between his private interests and the performance of his public duties while allowing him to reside within the city in accordance with his chosen personal lifestyle.

Accordingly, we find that a prohibited conflict of interest would be created were the subject Building Official to contract for the purchase of a condominium unit as a personal residence prior to the construction and completion of all building inspections unless he removes himself from personal involvement and decision-making in connection with the Building Department's regulation of the construction of his residence and the entire condominium development.