CEO 75-34 -- February 21, 1975

CONFLICT OF INTEREST

CITY COMMISSIONER WHO IS ALSO A REALTOR PROHIBITED FROM SELLING PROPERTY TO THE CITY

To: George T. Dunlap III, City Attorney, Bartow

Prepared by: Gene L. "Hal" Johnson

SUMMARY:

Section 112.313(2), F. S., as amended by Ch. 74-177, Laws of Florida, prohibits a public officer from owning a material interest in a business entity doing business with the officer's agency. As a City Commissioner of the City of Bartow, Mrs. Barbara Periman is a public officer subject to such provisions within the Code of Ethics. In her capacity as a local realtor, Mrs. Periman cannot propose or offer real estate for sale to the city. Nor would the situation be rectified by public meeting consideration or by Mrs. Periman's abstention from voting on the matter. What is prohibited is private benefit accruing to the public officer; should such purchase be made from Mrs. Periman by the City of Bartow, the standard will be breached.

QUESTION:

May a Bartow city commissioner who is also a realtor sell property, presumably at a commission, to the City of Bartow when such sale must be approved by the city commission?

Your question is answered in the negative.

You state in your letter of inquiry that one of the five city commissioners of Bartow, Mrs. Barbara H. Periman, is a local realtor. Having obtained a listing on two lots near other properties owned by the city, she has approached the city relative to the possibility of its purchasing the two additional lots. The matter was referred to the city zoning commission which subsequently recommended the purchase. The city commission now must consider the recommendation of the zoning commission, and if it decides to purchase the property in question, an ordinance authorizing the sale must be passed by the city commission on two separate readings, the second one to be taken at a public hearing.

Your question is whether the Code of Ethics, part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida, prohibits such a transaction with a realtor who is also a city commissioner. We hold that it does.

The newly revised Code of Ethics provides that:

No public officer or employee of an agency shall own a material interest in any business entity doing business with the agency of which he is an officer or employee, except in those cases when the business is contracted with full public competition and award is made to the lowest or best bidder or to a consultant in accordance with Chapter 287.055, Florida Statutes. [Section 112.313(2), F. S., as amended by Ch. 74-177, supra.]

As an elected city commissioner, Mrs. Periman is a public officer within the meaning of this law. Section 112.312(7)(a), supra. She owns a material interest in a business entity, the realty company. If her realty company sells property to the City of Bartow, it will be doing business with an agency of which she is a public officer. It is therefore our conclusion that the above-quoted section is applicable to Mrs. Periman and the business transaction described.

The situation would not be rectified by public meeting consideration or by abstention from voting by Mrs. Periman. The essential wrong is the private benefit accruing to the public official. And if it accrues, whether directly or indirectly, and in whatever degree, the standard will be breached.