CEO 99-3 -- March 17, 1999
CONFLICT OF INTEREST
PROPERTY APPRAISER=S RELATIVES FORMING BUSINESS
TO DEVELOP AND MARKET OTHER AGENCIES= DATA
TO: Mr. Ron Schultz, Citrus County Property Appraiser (Homosassa)
The Code of Ethics was not violated by a property appraiser=s development of a concept that would enable information compiled by property appraisers in other counties to be combined with maps from that jurisdiction and placed on a CD-ROM for sale to the public. A corporation owned by the property appraiser=s family members proposes to enter into an agreement with the Florida Association of Property Appraisers Service Corporation and develop the CD=s. However, there is nothing to indicate that there was any violation of Section 112.313(6), Florida Statutes, by the Property Appraiser=s initial development of the concept. With regard to Section 112.313(8), Florida Statutes, no proprietary information or processes were involved in the creation of the disk for the Property Appraiser, so there is no indication that the Appraiser would be able to use information or a process that was developed through his agency=s efforts to benefit another person or business entity, including the family corporation.
Would a prohibited conflict of interest be created where family members of a county property appraiser form a business and contract with a company to create a property appraiser map system on CD-ROM that is similar to a product that was initially created by the Citrus County Property Appraiser?
Under the circumstances presented, your question is answered in the negative.
In your letter of inquiry and through subsequent correspondence and discussions with our staff, we are advised that you are the Property Appraiser for Citrus County and, from 1989 to 1997, your office undertook a comprehensive upgrading of computer hardware and software to maintain the Office=s property rolls. That effort included the acquisition of a map viewing product from a private vendor which enabled the Property Appraiser=s maps to be linked to the office=s data display system and placed on a CD-ROM viewable with a personal computer. Ultimately, this effort enabled you to place maps and your office=s database at each employee=s desk, including those in your branch location.
You relate that the immediate, enthusiastic response of your staff convinced you that the general public might also benefit from, and be willing to defray the costs of, additional product development. After a demonstration of the product at a local chamber of commerce meeting, the Property Appraiser=s Office received orders for several dozen CD-ROM=s. Later, in response to a request that there be a method to update ownership information, your office developed a method of posting updates on the Citrus County Property Appraiser=s Internet web site that could be downloaded periodically to keep the database current. So far this year, you report that you have delivered 102 disks to the private sector, 31 to government agencies, and 39 are being used in-house by your staff.
In your demonstration of the system at various conferences and seminars, other property appraisers have indicated that there is a potential market in their communities for a similar product but that their offices already have computer systems which meet their needs and that they therefore cannot justify the costs of creating a new one just to provide remote public access. That predicament led you to conceptualize a plan where a private sector entity would create a display system for a county=s data, link it to the map-viewer program, and load both with the county data and maps. The resulting CD-ROM could then be made available to the public for purchase.
You advise that you discussed this proposal with persons associated with the Florida Association of Property Appraisers Service Corporation, a private, for-profit entity that is owned by members of the Florida Association of Property Appraisers. They are interested in partnering with a private company formed by your wife and daughters to create the CD-ROM=s. It was suggested that you seek our opinion about the appropriateness of your initial involvement in this project to ensure that your actions did not violate the Code of Ethics.
There are two provisions which govern your actions as they relate to this proposal. Section 112.313(6), Florida Statutes, provides:
MISUSE OF PUBLIC POSITION.--No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others.This section shall not be construed to conflict with s. 104.31.
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 or her public duties. [Section 112.312(9), Florida Statutes (1997).]
Section 112.313(6) prohibits you from using your position as Property Appraiser to obtain a special privilege or benefit for yourself or someone else, where your actions are undertaken with a Acorrupt@ intent.
Because Section 112.313(6) contains an intent element, we generally do not render advisory opinions concluding that an official=s conduct did or did not constitute a violation of this provision. See CEO 94-1, where a city commission inquired whether its vote to pay for a children=s book authored by the mayor violated Section 112.313(6) where the book also contained pictures of the city commissioners and information about the city. Our advisory opinion process depends on the facts as set forth by the person requesting the opinion, and we do not use it as a means to undertake an investigation that might reveal additional factors which bear on the question of intent. Thus, we cannot conclude here whether your actions in conceiving of the plan to duplicate the success you gained with the Citrus County Property Appraiser=s CD-ROM project violated Section 112.313(6).
However, there is nothing to indicate that any of your actions to date would be considered inconsistent with the proper performance of your public duties. Other than your time, there is no indication that you have used resources belonging to or paid for by the Citrus County Property Appraiser=s Office to further this proposed endeavor. There was no proprietary information involved in the development of the Citrus County CD, so there is nothing to share with the private company formed by your wife and daughters. None of your employees have any employment or contractual relationships with any of the contractors that helped your agency create its CD-ROM; nor were any of your relatives involved in your agency=s project.
The other provision of the Code of Ethics which is implicated by your inquiry is Section 112.313(8), Florida Statutes, which states:
DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his or her official position for his or her personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), Florida Statutes (1997).]
Section 112.313(8) prohibits you from disclosing or using information not available to the general public and gained through your official position for your personal gain or benefit or for the personal gain or benefit of another person or business entity.
In CEO 92-18 and other opinions, we have concluded that Section 112.313(8) prohibits a public official from using in private consulting work a program designed as part of his job. In that opinion, we were asked to render an advisory opinion to two employees in a clerk of court=s office who wanted to establish a computer software consulting company and market computer software to other clerks. Although the programs that the employees wanted to create for other clerks were going to be different from that used by their employer, there were concerns that they would be in a position to obtain proprietary information through their public positions that they would then use to modify the software they sold to others. This concern does not appear to be present in your situation, as you assure us that there is no proprietary, secret, or covert information, techniques, processes, or programs that were developed by the Citrus County Property Appraiser=s Office or paid for with public funds that could be shared with the family corporation. Moreover, each county=s information is specific to that county, and a different programming language--Visual FoxPro--will be used to write the data display systems the family corporation develops for each county project. It is contemplated that the Florida Association of Property Appraisers Service Corporation will act as the producer of the CD-based system for any particular county and that they would acquire the data, format and deliver the data, arrange the production and delivery schedule for the CD=s, and be responsible for paying the family corporation. In turn, the family corporation will write the appropriate programs, license any necessary software from the vendor of the map-viewing product, and create the disks having the desired functionality. The project will not include Citrus County since you have already produced the CD for that county as a function of your public duties as Property Appraiser. With these assurances, we do not believe that your initial involvement in developing or pitching the concept violated Section 112.313(8), Florida Statutes.
You advise that you will not be a principal, director, employee, or paid consultant to the family corporation; nor will you represent it or the Service Corporation in its arrangements with any county. Thus, there is no concern that you would have an employment or contractual relationship with either the family corporation or the Service Corporation that could implicate Section 112.313(7)(a), Florida Statutes, the conflicting employment or contractual relationship prohibition. Although you would like to be able to discuss and critique the family corporation=s efforts informally, there is no reason why this would be a problem as long as you are mindful of the proscriptions of Sections 112.313(6) and 112.313(8).
You also wish to continue demonstrating your Office=s CD-ROM and advising other counties on technology issues. As long as these activities are done in conjunction with and are consistent with your duties as Citrus County Property Appraiser, the Code of Ethics would not limit your ability to advise others on emerging uses of technology that enable government to wisely use its resources and provide greater public access to its information.
Your inquiry is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 12, 1999 and RENDERED this 16th day of March, 1999.
Charles A. Stampelos