Does a federal HUD conflict-of-interest waiver override Florida's housing authority conflict rules?

Plain-English summary

General counsel to the Housing Authority of the City of Miami Beach asked whether a federal official's waiver of a conflict of interest under 24 C.F.R. s. 982.161 would prevent a conflict-of-interest determination under Florida's Code of Ethics (Part III, Chapter 112, Florida Statutes). Senior Assistant Attorney General Gerry Hammond offered only general informal comments and expressly declined the two questions at the heart of the request.

The office explained it is not authorized to comment on federal law and may opine only on questions of state law (section 16.01(3), Florida Statutes), so it would not interpret the federal regulation. It also declined to say whether the described conduct would be a conflict under Chapter 112, directing that question to the Florida Commission on Ethics. What the office did note was a separate state statute: section 421.06, which prohibits a housing authority commissioner or employee from acquiring any direct or indirect interest in a housing project or in any property included in a project, and requires written disclosure of any such interest. The office also observed that the federal regulation's waiver language, by its own terms, appears limited to conflicts under section 982.161 itself.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the Attorney General say a HUD waiver overrides Florida's ethics rules?
A: No. The office declined to interpret the federal regulation because it may opine only on state law (section 16.01(3)), and it declined to decide whether the conduct was a conflict under Chapter 112, which is the Florida Commission on Ethics' responsibility.

Q: What does Florida law say about housing authority commissioners and project interests?
A: Section 421.06 prohibits a commissioner or employee of a housing authority (other than a tenant-commissioner's leasehold in the project where he or she is a tenant) from acquiring any direct or indirect interest in a housing project or related contracts, and requires immediate written disclosure of any such interest.

Q: What happens if a commissioner fails to disclose such an interest?
A: The statute provides that failure to disclose constitutes misconduct in office, and section 421.07 provides for the removal of commissioners.

Q: Where should the housing authority take its ethics question?
A: The opinion directed questions about the Code of Ethics for Public Officers and Employees to the Florida Commission on Ethics.

Background and statutory framework

Florida's Housing Authorities Law (Part I of Chapter 421) lets a municipality create a housing authority when its governing body finds, by resolution, a need based on unsafe or insanitary dwellings or a shortage of affordable housing (section 421.04). The authority is run by a board of five to seven commissioners appointed by the mayor with the governing body's approval (section 421.05(1)). Section 421.06 bars commissioners and employees from acquiring interests in housing projects and requires disclosure, with removal available under section 421.07.

Because the request asked the office to reconcile a federal regulation with the state ethics code, the office invoked section 16.01(3), which limits the Attorney General's opinion authority to questions of state law, and deferred the Chapter 112 question to the Florida Commission on Ethics. Its only substantive observations were that section 421.06 independently prohibits a housing authority commissioner from acquiring an interest in a project and that the cited federal waiver provision appears, on its face, limited to conflicts under 24 C.F.R. s. 982.161.

Citations and references

Statutes and regulation:

• § 421.06, Fla. Stat. (commissioners/employees prohibited from acquiring interests; disclosure)
• Part III, Chapter 112, Fla. Stat. (Code of Ethics for Public Officers and Employees)
• § 16.01(3), Fla. Stat. (Attorney General opinions limited to questions of state law)
• §§ 421.04(1), 421.05(1), 421.07, Fla. Stat. (creation, board of commissioners, removal)
• 24 C.F.R. s. 982.161 (federal conflict-of-interest provision and waiver)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/housing-authority-conflict-of-interest
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8196

Original opinion text

Ms. Eve A. Boutsis

Figueredo & Boutsis, P.A.

18001 Old Cutler Road, Suite 533

Miami, Florida 33157-6416

Dear Ms. Boutsis:

As general counsel to the Housing Authority of the City of Miami Beach (HACMB), you have asked for our assistance in determining whether a federal official's waiver of a conflict of interest under 24 C.F.R. s. 982.161 would preclude a determination of conflict of interest pursuant to Part III, Chapter 112, Florida Statutes, Florida's Code of Ethics for Public Officers and Employees. Because this office is not authorized to comment on federal law, the following informal comments will be general in nature. (See s. 16.01(3), Fla. Stat., limiting the scope of authority of the Florida Attorney General to issuing opinions on questions of state law.) Further, I must advise you that no comment will be expressed herein as to whether the conduct you have identified would constitute a conflict of interest under Part III, Chapter 112, Florida Statutes. Questions relating to the Code of Conduct for Public Officers and Employees should be directed to the Florida Commission on Ethics.

Florida's Housing Authorities Law, Part I of Chapter 421, Florida Statutes, provides for the creation of housing authorities by municipalities.[1] A housing authority may be created if the governing body of a city, by proper resolution, declares that there is a need for such an authority.[2] As required by statute, the governing body may adopt a resolution declaring that there is a need for a housing authority in the city if it finds that:

"(a) Insanitary or unsafe inhabited dwelling accommodations exist in such city; or

(b) There is a shortage of safe or sanitary dwelling accommodations in such city available to persons of low income at rentals they can afford. In determining whether dwelling accommodations are unsafe or insanitary said governing body may take into consideration the degree of overcrowding, the percentage of land coverage, the light, air, space and access available to the inhabitants of such dwelling accommodations, the size and arrangement of the rooms, the sanitary facilities, and the extent to which conditions exist in such buildings which endanger life or property by fire or other causes."[3]

Following adoption of a resolution declaring the need for creation of a housing authority, a board of commissioners shall be appointed. The board must consist of between five and seven persons who are appointed by the mayor with the approval of the municipal governing body.[4] Commissioners serve a four-year term of office and any vacancy is to be filled for the unexpired term by an appointment by the mayor with the approval of the governing body within 60 days after that vacancy occurs.

Section 421.06, Florida Statutes, prohibits commissioners or employees from acquiring interests in housing projects. The statute provides:

"Except for the leasehold interest held by a tenant-commissioner in the housing project in which he or she is a tenant, no commissioner or employee of an authority shall acquire any interest, direct or indirect, in any housing project or in any property included or planned to be included in any project, nor shall he or she have any interest, direct or indirect, in any contract or proposed contract for materials or services to be furnished or used in connection with any housing project. If a commissioner or employee of an authority owns or controls an interest, direct or indirect, in any property included or planned to be included in any housing project, he or she shall immediately disclose the same in writing to the authority. Such disclosure shall be entered upon the minutes of the authority. Failure so to disclose such interest constitutes misconduct in office."

Thus, regardless of any other provision which may apply, Florida law prohibits a public housing authority commissioner from acquiring any interest, either direct or indirect, in any housing project. If a commissioner currently owns property included in any housing project he or she must disclose that ownership interest to the housing authority or risk removal from office for misconduct in office.[5]

You have cited 24 C.F.R. s. 982.161 and are apparently concerned that the waiver contemplated by this section may affect conflict of interest provisions of Florida law. While this office cannot provide you with any interpretation of these federal provisions,[6] I would note that the specific language of the federal regulation is limited. Section 982.161 specifically provides that "[t]he conflict of interest prohibition under this section may be waived by the HUD field office for good cause." (e.s.) Thus, the provision by its own terms appears to limit its scope to conflicts of interest under section 982.161.

I trust that these informal comments will be helpful to you.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/tsh

[1] See s. 421.03(3), Fla. Stat., providing that a "[g]overning body" is "the city council, the commission, or other legislative body charged with governing the city" and s. 421.04(1), Fla. Stat.

[2] Section 421.04(1), Fla. Stat.[3] Section 421.04(2), Fla. Stat.

[4] Section 421.05(1), Fla. Stat.

[5] See s. 421.07, Fla. Stat., providing for removal of commissioners.

[6] See s. 16.01(3), Florida Statutes, limiting the scope of authority of the Florida Attorney General to issuing opinions on questions of state law.