Ethics: City officials must avoid contracts with regulated companies

About two weeks ago the attorney for the City of St Augustine was informed by Florida Commission on Ethics Senior Attorney, Betsy Daley, that to remain in compliance with state ethics laws, it will be necessary for any city employee to avoid personal contracts for service with any company regulated by their agency or department.

Based on a reading of Section 112.313(7)(a), Florida Statutes, and three opinions reached by the Commission, recent activity by the City Planning and Building Department director, David Birchim, probably crossed the line — leading to a public apology by Birchim at the Monday night meeting of the St Augustine City Commission.

Birchim is a full-time City employee and, in that capacity, he attends meetings and presents recommendations to the Planning and Zoning Board. His agency is the Planning and Building Department, which has regulatory authority over construction companies, including New Castle Homes, LLC; the company with which he has a contract to rebuild his flood-damaged home.

New Castle Homes, LLC, appeared before the Planning and Zoning Board at its November 7, 2017 meeting, seeking a setback variance for one of the company’s other projects, not the Birchim residence. Birchim appeared at that meeting to present a staff report and recommendation of approval of the variance, during the time of his personal contract with the company was underway.

In CEO 81-51 and CEO 76-75, the Commission on Ethics concluded that a municipal building official must remove himself from personal involvement and decision-making in connection with a company involved in construction at his personal residence, in order to avoid a prohibited conflict of interest under Section 112.313(7)(a).

• However, according to Daley, as long as Birchim does not appear before the Planning and Zoning Board concerning the company, or its requests, and as long as he also is removed, in his public position, from any involvement within the Department concerning the company during the time of his personal contract with the company, Mr. Birchim’s contract for home renovation with a company regulated by his agency apparently would not present him with a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes.

• Birchim has no other business relationship with the company. As such, Daley says, he will not have an employment or contractual relationship which will create a continuing or recurring conflict between the officer’s private interests and the performance of the officer’s public duties or which would impede the full and faithful discharge of his or her public duties.

• Finally, Birchim is a City employee rather than a voting member of the PZB, the voting conflict statutes, Sections 112.3143(3) and 112.3143(4), Florida Statutes, would not be implicated and he apparently would not be required to make any disclosures as to his home renovation contract with the company in question.