CEO 77-126 -- August 24, 1977

CONFLICT OF INTEREST

MEMBER OF CITY PLANNING BOARD PRIVATELY REPRESENTING AS ARCHITECT CLIENTS BEFORE THE BOARD

To: Walter Stubbs, Mayor, Treasure Island

Prepared by: Phil Claypool

SUMMARY:

A public officer is prohibited by s. 112.313(7)(a), F. S., from having a contractual relationship with a business entity which is subject to the regulation of his public agency. However, based on the language contained in s. 112.316, no violation is deemed to be created where a member of a municipal planning board privately contracts as an architect with persons who only incidentally and passively are subject to the regulation of the planning board, as all other landowners in the municipality are subject. Where the subject board member/architect undertakes to represent clients before the planning board, however, violations of s. 112.311(1) and (6) are created because such board member's independence and impartiality are jeopardized, there is interference with the efficient and faithful performance of his public duty, and the appearance of public office being used for private gain would undermine the confidence of people in their government. Moreover, a public officer's representation of clients before his own agency falls squarely within the definition of "conflict of interest" contained in s. 112.312(6), as it creates "a situation in which regard for a private interest tends to lead to a disregard of a public duty or interest."

QUESTION:

Does a prohibited conflict of interest exist where a member of a city planning board represents, in his private capacity as an architect, clients before the planning board, although he abstains from voting on the matter?

Your question is answered in the affirmative.

In your letter of inquiry and subsequent materials provided our staff, you advise that Mr. Peter Volmar, a registered architect, has been appointed by the city commission to the Planning Board of the City of Treasure Island. As an architect, Mr. Volmar on a number of occasions has represented his clients on matters before the planning board. He has attended 26 of 27 site planning review meetings of the board, having voted on 15 of the matters and having abstained on 11 issues in which he represented clients. In addition, you advise that the planning board is of the opinion that persons with technical expertise should serve on the board in order to represent all facets of community life.

Under the Treasure Island Code, the planning board is responsible for amending the master plan for development of the city, subject to ratification by the city commission, and for submitting to the commission for its approval proposed changes in the city's zoning plan. In addition, deviations from the plan and changes in use of property must be submitted to the board for its approval. If the board disapproves a proposed construction or deviation, or if local property owners petition against the board's approval, the city commission is empowered to overrule the board's decision.

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), F. S. 1975.]

This first clause of this provision prohibits a public officer from having a contractual relationship with a business entity which is subject to the regulation of his agency. In the instant case, the board member's agency is the city planning board, which regulates all landowners within the city. Therefore, the board member seemingly is prohibited from having a contractual relationship with a business entity which owns land within the city.

However, we must read the prohibition contained in the first clause of s. 112.313(7)(a), above, in light of another provision of the Code of Ethics, which states:

Construction. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, F. S. 1975.]

This provision mandates that the Code of Ethics not be construed to prohibit a public officer from engaging in private pursuits which do not interfere with the full and faithful discharge of his public duties. Based on this provision, it is our view that, in general, the architect's privately contracting with persons who only incidentally and passively are subject to the regulation of the planning board, as all other landowners in the municipality are subject, does not constitute a conflicting contractual relationship within the terms of the first clause of s. 112.313(7)(a) so as to prohibit the architect from serving on the planning board. Generally, such situations would more properly fall within the provisions of s. 112.3143, relating to voting conflicts of interest.

However, undertaking to represent a client before a board of which one is a member necessarily interferes with the full and faithful discharge of one's public duties and, particularly in the instant case where such representations are frequent, presents a continuing or frequently recurring conflict in violation of the second clause of s. 112.313(7)(a), above. This finding is based on the legislative intent of the Code of Ethics, which is expressed in part as follows:

It is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law . . . . [Section 112.311(1), F. S. 1975.]

It is declared to be the policy of the state that public officers and employees, state and local, are agents of the people and hold their positions for the benefit of the public. They are bound to uphold the Constitution of the United States and the State Constitution and to perform efficiently and faithfully their duties under the laws of the federal, state, and local governments. Such officers and employees are bound to observe, in their official acts, the highest standards of ethics consistent with this code and the advisory opinions rendered with respect hereto regardless of personal considerations, recognizing that promoting the public interest and maintaining the respect of the people in their government must be of foremost concern. [Section 112.312(6), F. S. 1975.]

Where a public officer represents clients before his own agency, his independence and impartiality are jeopardized. In our view he is unable to perform his public duties efficiently and faithfully, and the appearance of public office being used for private gain undermines the confidence of people in their government. Moreover, it is our opinion that the subject situation falls squarely within the definition of "conflict of interest" contained within the Code of Ethics:

"Conflict" or "conflict of interest" means a situation in which regard for a private interest tends to lead to a disregard of a public duty or interest. [Section 112.312(6), F. S. (1976 Supp.).]

Accordingly, a prohibited conflict of interest is created where a member of a municipal planning board privately represents clients before that board.

To the extent that this opinion modifies the rationale contained in CEO's 76-173 and 76-214, those opinions are hereby superseded.