CEO 96-8 -- March 11, 1996
CONFLICT OF INTEREST
COUNTY PLANNING BOARD MEMBER ALSO OFFICER AND EMPLOYEE
OF ENGINEERING FIRM WHICH REPRESENTS CLIENTS SEEKING
VARIANCES AND PLAT REVIEWS WHERE COUNTY ENGINEER
SERVES AS CHIEF ENGINEER FOR THE BOARD
To: David G. Tucker, County Attorney (Pensacola)
No prohibited conflict of interest exists where an officer and employee of a local engineering firm which contracts with the County Commission and provides engineering services for private clients seeking variances from boards other than the County Planning Board also serves as a member and chairman of the Planning Board, for which the County Engineer serves as chief engineer. Section 112.313(3) is not violated because the Planning Board member=s engineering firm contracted with the County, rather than with the Planning Board, the Planning Board is not purchasing any services from the firm, and the Planning Board was not involved in approving the purchase or with the subject matter of the contract.
Because the Planning Board member=s engineering firm=s contractual relationship is with the County, rather than with the Planning Board, and because professional engineers are regulated by the Florida Board of Professional Engineers, rather than by the Planning Board, the Board member does not have a contractual or employment relationship prohibited by the first part of Section 112.313(7)(a). In addition, because the Planning Board does not review projects presented by or prepared by the Planning Board member=s engineering firm, no prohibited conflict exists under the second part of Section 112.313(7)(a).
Although the County Engineer is subject to the direction of the Planning Board and has a significant role in the planning process, because the Planning Board does not exercise significant authority over the County Engineer, such as the authority to hire or fire, no impediment to the full and faithful discharge of the Planning Board member=s duties or frequently recurring conflict of interest is created as a result of the County Engineer=s role in reviewing the Planning Board member=s firm=s project requests and his relationship to the Planning Board.
Does a prohibited conflict of interest exist where an officer and employee of an engineering firm which represents clients seeking variances and plat reviews from the county commission and county boards other than the county planning board and which contracts with the county also serves as a member of the county planning board, where the county engineer serves as chief engineer for the planning board?
Your question is answered in the negative.
You advise that the Chairman of the Escambia County Planning Board, . . . , is an officer and employee of a local engineering firm, which, under Section 287.055, Florida Statutes [@The Consultants= Competitive Negotiation Act.@], has contracted, along with three other engineering firms, with the County Commission to provide engineering services to develop plans for paving existing clay roads. You advise further that the engineering firm also provides engineering services for private clients seeking variances from the Zoning Board of Adjustment and the Subdivision Regulation Board of Review, which as of February 1, 1996 no longer exists. We are advised that from January 1995 through November 1995, one request for a variance and three requests for special exceptions were submitted by the firm to the Zoning Board of Adjustment, and from October 1994 through September 1995 eight projects were submitted by the firm for review by the Subdivision Regulation Board of Review. A total of 16 variances which were subsequently approved by the County Commission were sought by the firm from the Subdivision Regulation Board of Review.
The engineering firm also provides professional services related to platting, you advise. However, the Planning Board has no connection with the Subdivision Regulation Board of Review or with the Zoning Board of Adjustment. The County Commission reviews certain land use variances approved by the Zoning Board of Adjustment and did review the recommendations of the Subdivision Regulation Board of Review as to variances.
The Planning Board=s duties, as set forth at Section 1-24-36 of the County Code of Ordinances, include being currently informed and knowledgeable of the conditions and development of the County and making studies and recommendations relating to County planning and zoning, either initiated by the Planning Board, the County Administrator, or the County Commission. In carrying out these functions, the Board is authorized to make recommendations to the County Commission concerning the following:
The comprehensive planning program;
The coordination of the comprehensive plan or elements or portions thereof with the comprehensive plans of other city and town governments;
The monitoring of the effectiveness and status of the plan;
Changes in the plan as may be required from time to time;
Text changes to County ordinances to promote orderly developments as set forth in the plan; and
Applications on the following land use matters:
a. Proposed zoning changes of any specifically designated property which does not require a quasi-judicial hearing;
b. Proposed amendments to the overall zoning ordinances;
c. Proposed subdivision plats;
d. Proposed vacations of public right-of-way as they relate to amendments to the comprehensive plan.
The ordinance also requires the Board to hear, give consideration to, and make final decisions on applications for zoning changes to site specific property.
Although you advise that the Planning Board does not review plats and variances, Section 1-24-33(3) of the County Code of Ordinances provides that the County Engineer shall serve as chief engineer for the Planning Board. Moreover, under the County=s Land Development Code, the County Engineer is subject to the direction of the Planning Board.
The Board Chairman advises that the County Engineer=s primary involvement with the Planning Board has been to negotiate acceptable engineering standards between various parties during the development of the County=s new Land Development Code, which were presented to the Planning Board and are now under consideration by the County Commission. He also writes that the County Engineer does not routinely attend meetings of the Planning Board. The only recent direction provided by the Board to the Engineering Department involved a request to investigate a drainage complaint received by the Board during a rezoning hearing. Except for rezonings, the Chairman advises, the Planning Board is strictly advisory to the County Commission.
In providing platting services and in seeking variances for private clients, the Board Chairman and the engineering firm must work through the County Engineer. You advise that, as a member of the Development Review Committee, the County Engineer also plays a significant role in the planning process. See Section 1-29.5-21 through 1-29.5-26, County Code of Ordinances. However, the only relationship that the Planning Board has with the Development Review Committee, which from February 17, 1993 through November 1, 1995 received 35 projects from the engineering firm for review, is the County Engineer=s participation in the development review process while also serving as the chief engineer for the Planning Board. No other relationship exists. You advise, however, that the County Engineer also is involved in both the modification of design principles process and requests for variances.
Because the County Commission has expressed some concern over the Board Chairman=s role in representing private clients in matters of platting and variances, you have requested that we render this opinion.
The Code of Ethics for Public Officers and Employees provides in relevant part as follows:
DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer=s or employee=s spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer=s or employee=s 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 the officer=s or employee=s own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:
(a) October 1, 1975.
(b) Qualification for elective office.
(c) Appointment to public office.
(d) Beginning public employment.
[Section 112.313(3), Florida Statutes.]
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 or she 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 or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.]
The first part of Section 112.313(3) prohibits the Planning Board Chairman from acting in his official capacity to purchase goods or services for his agency from any business entity of which he is an officer, partner, director, or proprietor or in which he has a "material interest." We previously have advised that a member of a governmental board acts in his or her official capacity whenever official action is taken by the body. See CEO 82-65 and CEO 92-43. The second part of Section 112.313(3) prohibits him while acting in his private capacity from selling goods or services to his own agency. In previous opinions, we also have advised that one who owns a material interest in a business or is an officer of the business acts in a private capacity to sell when that business sells. See CEO 76-5 and CEO 87-41.
For purposes of Section 112.313(3) and Section 112.313(7)(a), the term Aagency@ is defined at Section 112.312(2), Florida Statutes, as:
any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.
Under this definition, the Chairman=s Aagency@ is the Planning Board. See CEO 90-7. As the firm contracted with the County, rather than with the Planning Board, to develop plans for paving existing clay roads, it appears that Section 112.313(3) would not be applicable, under the rationale of CEO 85-85. There, we concluded that the Code of Ethics did not prohibit a city planning and zoning board member from contracting with the city to clear lots located in the city, where the planning board was not involved in approving the purchase or with the subject matter of the contract. Moreover, the Planning Board is not purchasing any goods or services from the firm.
The first part of Section 112.313(7)(a) prohibits the Board Chairman from being employed by a business entity which is doing business with or is regulated by his agency. The second part prohibits him from having any employment or contractual relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or which impedes the full and faithful discharge of his public duties. The term Aconflict of interest@ is defined at Section 112.312(8), Florida Statutes, to mean Aa situation in which regard for a private interest tends to lead to disregard of a public duty or interest.@
In CEO 85-26, we noted that the usual Aconflict of interest@ question involving service on a planning board concerns a board member=s involvement with private development activities subject to review by his or her own board. See, for example, CEO 81-84 (town planning commission member serving as president of a construction and land development corporation) and CEO 83-20 (city board of architects member representing clients before city departments and agencies). We have indicated that a board member=s employment with a firm whose recommendations continually must come before his or her own board would tend to lead to disregard of his or her public duty to remain independent and impartial when reviewing those matters (see Section 112.311(1), Florida Statutes)and present a continuing or frequently recurring conflict of interest with the duties of the planning and zoning board member. On the other hand, in CEO 76-13 we advised that a city council member who was a realtor could appear before the city planning and zoning board seeking rezonings or variances despite that fact that the city council appointed the members of the planning and zoning board. In CEO 79-7 we found that a city planning board member would not be prohibited from representing clients before the planning department and other city departments. There, we distinguished between a board member=s representation of clients before his or her own board, which we found to be prohibited (see also CEO 77-126 and CEO 78-86), and his or her representation of clients before other agencies of the political subdivision in which he or she serves, which we have found not to violate the Code (see also CEO 79-19).
We also have opined that as a general rule, we do not believe that every person whose private employment involves real estate sales, land development, or contracting should be prohibited from serving on a planning commission. In CEO 81-84, we stated the general rule as follows:
Local communities should not be deprived of the opportunities either to appoint to their planning commissions persons with substantial knowledge and expertise in the area of land development or to appoint persons reflecting the entire spectrum of opinions regarding development. It is only in situations where the member=s private interests are substantial and would be substantially affected by the commission=s work, that he should not be permitted to serve on the planning commission.
Applying these principles here, we find that because the firm=s contractual relationship is with the County, rather than with the Planning Board, and because professional engineers are regulated by the Florida Board of Professional Engineers pursuant to Chapter 471, Florida Statutes, rather than by the Planning Board, the Board=s Chairman does not have a contractual or employment relationship with a business entity which either is doing business with or is regulated by his agency. Therefore, we find that the first part of Section 112.313(7)(a) does not apply under the circumstances presented to prohibit employment with the firm while serving as a member of the Planning Board. Furthermore, we find that because the Planning Board does not review projects presented by or prepared by either its Chairman or his firm, no continuing or frequently recurring conflict or impediment to the full and faithful discharge of his public duties exists.
The relationship between the Chairman of the Board and the County Engineer is of some concern, in light of the County Engineer=s being subject to the direction of the Planning Board while also having a significant role in the planning process vis-a-vis his review of the firm=s work on requests for variances, special exceptions, modification of design principles, and preparation of plats. However, it is clear that the Board does not have the kind of authority over the County Engineer as was the case in CEO 84-1, where a county commissioner was an officer of an engineering and surveying firm doing business within the county. There, we noted that the county engineer who participated in subdivision regulation within the County and played a significant role in regulating development was hired directly by the county commission and presumably was subject to termination by the commission. In that opinion, however, we found no prohibited conflict of interest because the extent of the county commissioner=s subdivision related work was not so substantial as to impede the full and faithful discharge of his public duties or create a frequently recurring conflict of interest. The Planning Board here does not appear to have such authority over the County Engineer. Therefore, we are of the opinion that no continuing or frequently recurring conflict or impediment to the full and faithful discharge of the Chairman=s public duties exists as a result of the County Engineer=s responsibilities to the Board.
We must caution that in his relationship and dealings with the County Engineer, the Chairman should be mindful of Section 112.313(6), Florida Statutes, which provides:
MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly 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. [Section 112.313(6), Florida Statutes.]
For purposes of this provision, the term "corruptly" is defined as follows:
'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(9), Florida Statutes.]
A violation of Section 112.313(6) would occur if the Chairman used his position or the resources within his trust with wrongful intent to benefit himself, his engineering firm, or his clients in a manner which was inconsistent with the proper performance of his public duties. Therefore, if it were shown that the Chairman took some action or attempted in some way to improperly influence the County Engineer with respect to projects that he or his firm was involved in, caused proper procedures not to be followed with respect to the projects, or otherwise acted in some other manner which could be viewed as inconsistent with the proper performance of his public duties, then a violation may be indicated. We bring this provision to your attention so that the Chairman may be cautioned against using his position to improperly influence the County Engineer.
Finally, the Chairman also should be advised that it is the policy of the Code of Ethics to require disclosure of representations before agencies of one=s political subdivision, rather than to prohibit them. See Section 112.3145(4), Florida Statutes, which requires each local officer to file a quarterly report of the names of clients represented for a fee or commission before agencies at his level of government. We have promulgated CE Form 2, Quarterly Client Disclosure, for use in making this disclosure.
Accordingly, we find that no prohibited conflict of interest exists where an officer and employee of an engineering firm which represents clients seeking variances and plat reviews from County boards other than the Planning Board and which has contracted with the County Commission serves as the Chairman and a member of the County Planning Board.
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 7, 1996, and RENDERED this 11th day of March, 1996.
William J. Rish
 Defined at Sec. 112.312(15), Fla. Stat., to mean "direct or indirect ownership of more than five percent of the total assets or capital stock of any business entity.@