CEO 84-1 -- January 26, 1984

CONFLICT OF INTEREST

COUNTY COMMISSIONER OFFICER OF ENGINEERING AND SURVEYING FIRM DOING BUSINESS WITHIN COUNTY

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

SUMMARY:

No prohibited conflict of interest has existed where a county commissioner is the president of an engineering and surveying firm doing work regarding rezoning applications and subdivision plats which must be approved by the board of county commissioners. Under the particular circumstances presented, it appears that the amount of such work done by his firm is not sufficient to present him with a frequently recurring conflict of interest or to impede the full and faithful discharge of his duties, in violation of Section 112.313(7)(a), Florida Statutes.

QUESTION 1:

Does a prohibited conflict of interest exist where you, a county commissioner, are the president of an engineering and surveying firm which does work regarding rezoning applications and subdivision 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 you were elected to the Board of County Commissioners of Okeechobee County one year ago. You also advise that you are a professional engineer and are president of an engineering and surveying firm which does work in the County.

Because of the size of the County, there is only one other consulting engineer in the County, you advise. Therefore, residents of the County come to your firm to aid them in legal descriptions and sketches of their property which they want rezoned. You advise that applications for rezoning are prepared by the Building and Zoning Department; engineers or surveyors are involved only where there is a complicated legal description.

Applications for rezoning are considered initially by the Planning Board, which makes a recommendation to the County Commission. You advise that your firm does not represent applicants for rezoning, and that approximately 90 percent of rezoning applicants represent themselves. When your firm does work regarding a proposed rezoning, the fee charged is invoiced when the service is rendered and is not contingent or conditional upon approval of the client's application. In each case in which your firm did work in conjunction with a rezoning application, you have filed a voting conflict of interest statement when the matter came before the Board, you advise.

You also advise that your firm prepares preliminary subdivision plats and final plats and supervises the construction of subdivisions. Each phase of the work is invoiced at the completion of the phase, without being contingent upon or affected by any decision of the County Commission, and the client is not obligated to continue your services from phase to phase. A registered surveyor is required to certify the correctness of the plat; in addition, the technical aspects necessitate the services of an engineer or surveyor. In most cases, the engineer or surveyor who prepares the preliminary plat completes the final plat. On occasion, when property has to be rezoned before being subdivided, your firm will prepare the legal description for the rezoning application and then will prepare the preliminary and final plat.

Procedurally, prior to preliminary and final approval of a subdivision plat, the plat is reviewed by five County department heads, including the County Engineer. If approved by these individuals, the plat is submitted to the County Commission for its approval. It is your firm's policy to have an associate at the Commission meeting to answer any technical questions, you advise, but the applicant usually represents himself at the meeting.

Although in the past approximately 25 percent of your firm's gross fees came from subdivision related work in the County, with the remainder coming from building plans, utilities work and surveys not requiring approval by the Board, you advise that in the year you have served on the Board the amount of subdivision related work done by your firm has decreased significantly. The firm's fees for subdivision related work amounted to about $13,600, constituting only 3.1 percent of the gross income of the firm during that year. This was a result of the firm's work on municipal design projects, which you anticipate will continue to be the focus of the firm's work in the future. You estimate that the fees received by your firm for subdivision related work during the time you have been in office amounts to only 5.8 percent of the fees received by all firms for subdivision related work in the County during that time.

Finally, information you have provided indicates that your firm has done work in connection with nine rezoning applications which have come before the Board in the year since you were elected. In the three years prior to that, your firm did work in connection with 32 rezoning applications. As you have advised that the County Commission handles approximately five to six rezoning applications per month, it appears that your firm has been involved with approximately 14 percent to 17 percent of the rezoning applications which annually come before the County Commission.

With respect to subdivision plats, your information indicates that your firm has prepared 20 of the 36 plats receiving final approval in the past four years; four of the six plats approved by the Commission in the year you have served on that body were prepared by your firm. However, of the work completed during your time in office, your firm has been involved with four subdivisions which totaled 69 lots on 52 acres of land. In contrast, you estimate that other firms were involved with projects totaling about 1,600 lots on 1,990 acres of land.

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, 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.

1. When the agency referred to is that certain kind of special tax district created by general or special law and is limited specifically to constructing, maintaining, managing, and financing improvements in the land area over which the agency has jurisdiction, or when the agency has been organized pursuant to chapter 298, then employment with, or entering into a contractual relationship with, such agency shall not be prohibited by this subsection or be deemed a conflict per se. However, conduct by such officer or employee that is prohibited by, or otherwise frustrates the intent of, this section shall be deemed a conflict of interest in violation of the standards of conduct set forth by this section.

2. When the agency referred to is a legislative body and the regulatory power over the business entity resides in another agency, or when the regulatory power which the legislative body exercises over the business entity or agency is strictly through the enactment of laws or ordinances, then employment or a contractual relationship with such business entity by a public officer or employee of a legislative body shall not be prohibited by this subsection or be deemed a conflict. [Section 112.313(7)(a), Florida Statutes.]

In a previous opinion, CEO 78-85, we found that this provision did not prohibit a surveyor from serving as a member of a county commission which approved plats which he had drawn. However, we do not rely on the rationale of that opinion here, because the number and frequency of subdivision plats prepared by your firm are greater, and because our interpretation of the statute regarding the term "regulation" was modified by our decision in In re John Zerweck, Complaint No. 79-74, 2 F.A.L.R. 1097-A(1980), affirmed, Zerweck v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982).

Section 112.313(7)(a) prohibits a public officer from being employed by a business entity which is subject to the regulation of his agency. We are of the opinion that this provision does not prohibit your employment as an engineer within the County. Professional engineers are regulated by the Florida Board of Professional Engineers pursuant to Chapter 471, Florida Statutes. Also, in Zerweck we found that the City Commission did not "regulate" developers within the meaning of this prohibition, as the active enforcement of ordinances specifying the manner and mode of land development and building construction within the City had been delegated to the various boards and departments of the City. In our view, this interpretation applies equally under the circumstances presented here.

Section 112.313(7)(a) also prohibits a public officer from having any employment or contractual relationship which creates a continuing or frequently recurring conflict of interest or which impedes the full and faithful discharge of his public duties. The District Court of Appeal in Zerweck stated that this prohibition

establishes an objective standard which requires an examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.' [409 So.2d at 61.]

After the Zerweck decision, we decided the case of In re Donald P. Ramsay, Complaint No. 81-48, 4 F.A.L.R. 2598-A (1982), in which we found that Section 112.313(7)(a) prohibited a surveyor from serving on a city planning and zoning board which was authorized to approve subdivision plats. We concluded that the surveyor had a substantial private interest which would be substantially affected by the decision of the board, as approximately 25 percent of the plats he had prepared were for property lying within the city. We also concluded that the surveyor not only was in a position to pass judgment upon his own private work on a frequently recurring basis, but also was in a position to evaluate the work of his competitors, especially since the surveyor and one other surveyor did 80 to 90 percent of the surveying work in the city.

We do not believe that this provision would prohibit every engineer from serving on a county commission. In our view, there will be some instances in which the law regarding voting conflicts of interest and abstentions from voting is sufficient to protect the interests of the public while permitting an engineer to engage in the profession of his choice. In other instances, an engineer may have substantial private interests which could be substantially affected by the authority of the county commission; in these cases the Code of Ethics protects the interests of the public by requiring the individual to choose between his private interests and service as a county commissioner. Therefore, we analyze your situation in terms of both the extent of your private interests and the nature and extent of the County Commission's authority over those interests.

We are of the opinion that your firm's work regarding rezoning applications generally does not present a conflict of interest, as the firm's work in preparing legal descriptions or sketches of the property is concluded before the application comes before the Board. Therefore, we do not understand you to have a continuing interest in such applications, except where the property will be subdivided, which would require the services of your firm.

With respect to subdivision related work, we conclude that the County Commission has the authority to substantially affect your firm's work. Your attorney has argued that the approval of plats by the County Commission is a ministerial function, citing Broward County v. Narco Realty, Inc., 359 So.2d 509 (Fla. 4th DCA 1978), and therefore that there is not enough discretion on your part to indicate a conflict in the full and faithful discharge of your duties. We do not understand the Narco Realty decision to mean that the Commission's responsibility in approving plats is purely ministerial. The Fourth District Court of Appeal subsequently has acknowledged that consideration of a plat involves the exercise of discretion. City of Coconut Creek v. Broward County Board of County Commissioners, 430 So.2d 959 (Fla. 4th DCA 1983), and Broward County v. Coral Ridge Properties, Inc., 408 So.2d 625 (Fla. 4th DCA 1981).

Here, the degree of discretion afforded the County Commission and County employees by the Okeechobee County Subdivision Regulations (Ordinance No. 79-6) varies depending upon the particular provision being considered. With respect to "special subdivisions," those which are not typical residential subdivisions, the Commission is granted considerable latitude to modify the subdivision regulations. On the other hand, for example, the design standards for pavement widths appear fairly specific.

Just as important as the discretion afforded the Commission in reviewing plats is the Commission's authority over those County employees, such as the County Engineer, who participate in subdivision regulation within the County. These employees are hired directly by the Commission and, presumably, are subject to termination by the Commission. They play a significant role in regulating development; preliminary plans are not submitted to the Commission until approved by the County Engineer, the County Attorney, and three other Department heads.

Additionally, a number of the regulations require design approval by the County Engineer. Presumably, the County Engineer works with the developer's engineer where problems or questions arise. In these respects, we perceive also a conflict of interest similar to that in Zerweck, where Zerweck was employed as development coordinator, responsible for promoting development before agencies and employees of the city which he served as commissioner.

Nevertheless, we are of the opinion that the present extent of your firm's subdivision related work is not so substantial as to impede the full and faithful discharge of your public duties or create a frequently recurring conflict of interest. Your firm's gross income from subdivision related work amounts to only 3.1 percent of its total gross income. Although in other situations such a low percentage still might mean a large amount in fees, that is not the case here. In addition, we note your estimate that your firm received only about 5.8 percent of the engineering and surveying income generated by all subdivision related work within the County during your first year in office.

In contrast, the city commissioner's private interests in Zerweck were those of an employee, strictly dependent upon his work as development coordinator for his developer/employer. The Ramsay case also can be distinguished on this basis. There, about 25 percent of the private work done by the planning and zoning board member came before his board.

Accordingly, we find that no prohibited conflict of interest exists under the Code of Ethics for Public Officers and Employees by virtue of your employment as an engineer and the head of an engineering and surveying firm doing business within the County to the extent noted for your first year in office.

QUESTION 2:

Is a voting conflict of interest created where you, a county commissioner, vote on the rezoning of property or the platting of subdivisions owned by clients of your engineering and surveying firm?

Section 112.3143, Florida Statutes, provides:

Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.

In addition, Section 286.012, Florida Statutes, provides:

No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act, and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is, or appears to be, a possible conflict of interest under the provisions of s. 112.311, s. 112.313, or s. 112.3143. In such cases said member shall comply with the disclosure requirements of s. 112.3143.

In CEO 78-85, we advised that under these statutes a county commissioner could abstain from voting on subdivision plats which he had prepared as a surveyor, or could vote on the matter and file a Memorandum of Voting Conflict (Commission on Ethics Form 4) in accordance with Section 112.3143, Florida Statutes. We believe that you also have this option when plats prepared by your firm come before the County Commission.

Regarding rezoning applications where your firm had prepared a sketch or legal description of the property, we are of the opinion that you may choose to abstain from voting, for the reasons expressed in CEO 77-62. However, if you choose to vote, we believe that no voting conflict memorandum would be required to be filed if the applicant is not a client of your firm at the time of the vote. In that case, although you may be said to have a professional interest in the matter before the County Commission, the matter would not inure to your gain (because your compensation would not be conditional upon approval by the Commission), and the matter would not inure to the gain of a principal by whom you presently were retained. Otherwise, if the applicant is a client of your firm for subdivision platting or other purposes, we are of the opinion that you should file a voting conflict memorandum if you vote upon the application.

This question is answered accordingly.