CEO 78-85 -- November 15, 1978

CONFLICT OF INTEREST

SURVEYOR SERVING AS MEMBER OF COUNTY COMMISSION WHICH APPROVES PLATS DRAWN BY SURVEYOR

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(7)(a), F. S. 1977, prohibits a public officer from holding any employment or contractual relationship with any business entity or agency subject to the regulation of his public agency or which would create a frequently recurring conflict between his private interests and public duties or impede the full and faithful discharge of his public duties. However, s. 112.316 further provides that it is not the intent of the Code of Ethics to preclude private pursuits which do not interfere with the full and faithful discharge of public duty. Accordingly, no conflict of interest is deemed to exist where a county commissioner privately is a registered land surveyor who prepares plats which must be approved by the board of county commissioners, based on the fact that, by law, the commission examines and approves plats only for conformity to technical requirements, having no discretion to deny its approval where such requirements have been met. However, the provisions of ss. 112.3143 and 286.012 relating to voting conflicts of interest would be applicable to the subject county commissioner if a plat which he has prepared comes before the county commission for approval. See CEO 77-62 in this regard.

QUESTION:

Does a conflict of interest exist when a county commissioner, who is a full-time registered land surveyor in the county, prepares plats which must be approved by the board of county commissioners?

Your question is answered in the negative.

In your letter of inquiry you advise that ____ is a registered land surveyor having a full-time office in ____County. Under part I of Ch. 177, F. S., each plat for the subdivision of lands must be made under the direction and supervision of a land surveyor and must be approved by the appropriate governing body, which would be the county commission for plats concerning land outside the incorporated areas of a county. Sections 177.061 and 177.071, F. S. 1977. Each plat must conform to the specific requirements set forth in s. 177.091, F. S.

In a telephone conversation with our staff, ____ advised that since 1973 he has had approximately four plats recorded, with two having been recorded within the past 6 months, and that he has derived no more than 20 percent of his business during the past 5 years from the preparation of plats. He also advised that, procedurally, a preliminary plat is prepared for a developer, which plat must be approved by both the county planning board and the county commission. If the preliminary plat is approved, then a final plat is prepared and presented to the planning board. Finally, if the planning board approves the plat, the county commission passes on the plat as required by Ch. 177, F. S. In addition, both you and ____ have advised that if the statutory requirements regarding plats are met, and the applicable zoning, building, and subdivision codes of the county are followed as determined by the building and zoning department, the county commission has no discretion to deny its approval of the plat and cannot arbitrarily refuse to approve it.

The Code of Ethics for Public Officers and Employees 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 . . . ; 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), F. S. 1977.]

It is apparent that a surveyor who has been retained to prepare a plat would have a contractual relationship with a business entity, the developer who wished to subdivide his lands, which is subject to the regulation of the county commission.

However, the Code of Ethics also provides:

It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, F. S. 1977.]

In our opinion, the employment of the subject county commissioner as a surveyor to prepare a plat for approval by the county commission does not interfere with the full and faithful discharge of his duties to the county. Under Ch. 177, the county commission only examines and approves each plat for conformity to the technical requirements of that chapter. As you have advised, the county commission has no discretion to deny its approval; and, as ____ has advised, he is not aware of any plat having been disapproved which contained the information required by Ch. 177.

Accordingly, we find that no prohibited conflict of interest would be created were a county commissioner who is a registered land surveyor to prepare a plat which must be approved by the county commission. Please be advised that the provisions of ss. 112.3143 and 286.012, F. S. 1977, would apply to the subject county commissioner if a plat which he has prepared comes before the county commission for approval. See CEO 77-62 for further guidance in this regard.