CEO 89-40 -- September 14, 1989
CONFLICT OF INTEREST
PROPERTY APPRAISER ACCEPTING FREE
SOCIAL CLUB MEMBERSHIP
To: Lee S. Carlin, Assistant General Counsel, City of Jacksonville
A county property appraiser is not prohibited by Sections 112.313(2), (4), or (7), Florida Statutes, from accepting a free membership to a social/dining club when there is no understanding or knowledge that the membership was given for the purpose of influencing him in the performance of his official duties. The County Property Appraiser is cautioned, however, that the corrupt use of his official position to benefit the club or any member thereof would be a violation of Section 112.313(6), Florida Statutes.
Would a prohibited conflict of interest be created were a county property appraiser to accept a free membership in a social/dining club located within his county?
Your question is answered in the negative, subject to the conditions specified below.
In your letter of inquiry you advise that Ernie Mastroianni is the Property Appraiser of Duval County. He has been offered a free membership in a local social/dining club. The circumstances under which this offer was made are described below.
A person who is newly elected to the club's board of governors is authorized to nominate one non-member for membership in the club. If the nomination is accepted, the club then offers the nominee membership and waives otherwise applicable initiation fees. This type of fee-waived membership has been offered by a newly elected member of the club's board of governors to the County Property Appraiser.
The club member making the nomination has been a personal friend of the Property Appraiser for many years. He is an attorney and owns property in the County which is subject to ad valorem assessments. The offer was made solely on the basis of friendship, without any expectation or understanding that any assessments made by the County Property Appraiser's office would be influenced by the offer.
The club is a business enterprise within the County and is located on two floors of a downtown building. The club has a restaurant and a health club and therefore owns tangible personal property which is subject to ad valorem taxes by the County. The amount of tangible personal property is roughly equivalent to a small health club.
In regard to the acceptance of gifts, Section 112.313(4) and Section 112.313(2), Florida Statutes, provide:
UNAUTHORIZED COMPENSATION.--No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity.
SOLICITATION OR ACCEPTANCE OF GIFTS.--No public officer, employee of an agency, or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of the public officer, employee, or candidate would be influenced thereby.
As you have indicated that there is no understanding or knowledge on the part of the Property Appraiser that his official actions are to be influenced by acceptance of the gift, it does not appear that either of these provisions would be violated were the Property Appraiser to accept the gift of free membership to the Club. See CEO 78-180.
Presumably, in the future the County Property Appraiser would be required to pay dues or other fees and therefore would have a contractual relationship with the club. Section 112.313(7)(a) provides:
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.
We do not believe that the assessment of real and personal property constitutes "regulation" within the intent of this Section, as the Property Appraiser has no authority over how the club conducts its business. See CEO 79-82. Nor do we find, under the described circumstances, that the relationship with the club would create a continuing or frequently recurring conflict or impede the Property Appraiser in the performance of his public duties. You have not provided us with information that indicates that the club's property holdings are so substantial that a club membership could impair the ability of the Property Appraiser to be impartial. We also note that virtually every business in the County is subject to the assessment of ad valorem taxes; we do not believe that Section 112.313(7)(a) should be applied to deprive the Property Appraiser of contractual relationships with entities paying property taxes in the County.
Although the mere acceptance of the membership would not violate the Code of Ethics, we must caution that Section 112.313(6) provides:
MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall 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.
Any attempt by the Property Appraiser to use his official position to bestow a special benefit or privilege upon the club or the member offering the membership potentially could be found to be in violation of this Section.
We also bring to your attention Section 112.3148, Florida Statutes (formerly Section 111.011, Florida Statutes). We are of the opinion that the free membership to the social club would not constitute an honorary membership and therefore should be disclosed pursuant to this Section.
Accordingly, we find that no prohibited conflict of interest would be created were the County Property Appraiser to accept a free membership in the social/dining club, as long as he does not use his official position to bestow a benefit or privilege upon the club.