CEO 86-83 -- December 11, 1986

CONFLICT OF INTEREST

COUNTY COMMISSIONER SELLING LAND TO CITY

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

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were a county commissioner and his relatives to sell land to a city which would purchase the property using funds granted to the city by the county. Although the county commissioner would have a contractual relationship with an agency which is "doing business with" the county commission by virtue of the grant of funds, here the exemption of Section 112.313(12)(e) would apply because the land owned by the commissioner is the only land available for the particular use sought by the city.

QUESTION:

Would a prohibited conflict of interest be created were you, the chairman of a county commission, to sell property to a city which would purchase the land using funds granted to the city by the county?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry you advise that you serve as the Chairman of the Santa Rosa County Board of County Commissioners. In October, 1985, the Board approved a grant of funds to the various cities in Santa Rosa County for municipal improvements. The City of Milton received a portion of these funds. You own a one-fourth interest in a parcel of property adjacent to the City's auditorium, and each of your three sisters also owns a one-fourth interest in this property. The City has expressed the desire to purchase the subject property using a portion of the funds received from the County for the purpose of expanding the auditorium's parking lot. You question whether a prohibited conflict of interest would exist were you to sell this property to the City.

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), Florida Statutes (1985).]

This provision prevents a county commissioner from having a contractual relationship with an agency which is doing business with that county. The term "agency" is defined 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. [E.S. Section 112.312(2), Florida Statutes (1985).]

In previous opinions we have advised that certain types of intergovernmental agreements between agencies do not constitute "doing business" for purposes of the Code of Ethics. See CEO 76-2 (Question 9). However, we have determined that an agency is doing business with another agency when there is a grant of funds from one agency to the other. See CEO 77-65, CEO 78-18, and CEO 83-61.

Nonetheless, the Code of Ethics provides an exception to the Section 112.313(7)(a) prohibition where

[t]he business entity involved is the only source of supply within the political subdivision of the officer or employee and there is full disclosure by the officer or employee of his interest in the business entity to the governing body of the political subdivision prior to the purchase, rental, sale, leasing, or other business being transacted. [Section 112.313(12)(e), Florida Statutes (1985).]

This provision would allow a county commissioner to have a contractual relationship with an agency doing business with the county commission as long as he represents the sole source of supply and discloses his interest on Commission on Ethics Form 4A prior to the transaction.

In a telephone conversation with our staff, you advised that your property is adjacent to the civic center and is the only land available for the expansion of the parking lot. This fact was confirmed by the County Attorney, who stated that the civic center is entirely surrounded by homes except for the subject property. Based upon these circumstances, we find the sole source exemption to apply here.

Please be advised, however, that a county official is prohibited by Section 112.3143, Florida Statutes, from voting on a measure which inures to his special private gain. In such an instance, the official is required to abstain from voting. He should disclose the conflict prior to the vote being taken by publicly stating to the assembly the nature of his interest. In addition, he should complete and file Commission on Ethics Form 8B within 15 days after the vote occurs with the person responsible for recording the minutes of the meeting, who should incorporate the form into the minutes.

The County Attorney advised that the City of Milton had contemplated the purchase of the subject property approximately four years ago. Insufficient funds were available, and no purchase was made. According to the August 22, 1985, minutes of the regular meeting of the Santa Rosa County Board of County Commissioners, the Board voted to consider funding requests from various cities within the County for the upgrading of public facilities. You subsequently voted on September 26, 1985, to approve the City of Milton's request to a maximum amount of $204,500. The first item on the list provided by the City of Milton was the purchase of a parking lot for the civic center at a cost of $65,000.

Accordingly, although we are of the opinion that you should have abstained from voting on the public facilities funding for the City of Milton, we find that you are not prohibited from selling your property to the City of Milton by reason of the sole source exception of Section 112.313(12)(e), Florida Statutes, provided that you make the appropriate disclosure to the Board of County Commissioners.