CEO 04-14 -- July 27, 2004

CONFLICT OF INTEREST; VOTING CONFLICT

COUNTY MANATEE RULE REVIEW COMMITTEE MEMBER EMPLOYED BY MANATEE CONSERVATION ORGANIZATION


To: Name withheld at the person's request.

SUMMARY:

No prohibited conflict of interest exists under Section 112.313(7), Florida Statutes, where an employee of a manatee conservation organization is appointed to serve in a "manatee advocate" position on a county manatee rule review committee, which has been created to review and comment on manatee protection rules that have been proposed by the Florida Fish and Wildlife Conservation Commission (FWCC.) In general, Section 112.3143(3), Florida Statutes, would not prohibit the committee member from voting on rules proposed by the FWCC, as it does not appear that measures affecting boating speed zones or protecting manatee habitat would directly result in gain or loss either to her or to her employer.

QUESTION 1:


Does a prohibited conflict of interest exist where a member of a county manatee rule review committee, created to review and comment on manatee protection rules that have been proposed by the Florida Fish and Wildlife Conservation Commission, is employed by a manatee conservation organization?


This question is answered in the negative.


In your letter of inquiry and subsequent conversations with our staff, you advise that ... recently was appointed to serve as a member of the Lee County Manatee Rule Review Committee and that she is employed as a Regional Coordinator by a nonprofit manatee protection organization.


Section 370.12(2)(f)3, Florida Statutes, calls for the creation of a rule review committee in each county where the Florida Fish and Wildlife Conservation Commission (FWCC) proposes rules to regulate the operation and speed of motorboats for the protection of manatees. Pursuant to Section 370.12(2)(f), the members of the Lee County Manatee Rule Review Committee have been appointed by the Lee County Commission to develop a written report, using data supplied by FWCC and by public testimony before the Committee, that will be submitted to the FWCC for its consideration in promulgating its rules. The report, which must be completed within 60 days after receipt of the proposed rules, may recommend changes to the proposed manatee protection zones or speed zones, and may recommend that no rule be adopted.


The Rule Review Committee is required by Section 370.12(2)(f)3 to be composed of equal numbers of "manatee and other environmental advocates" and of "waterway users," such as fishers, boaters, and water skiers. The subject Committee member has been appointed as one of the "manatee advocate" members.


As the South West Florida Regional Coordinator for the manatee protection organization, the subject Committee member's overall goal is described in her job description as:


To expand and mobilize public support for manatee protection in order to affect management policy at the local, state, and federal levels through community outreach, by raising public awareness, by disseminating correct science-based information, by counteracting misinformation, by alerting the public to needed specific protection measures and telling the public how they can help.


More particularly, her duties include building grassroots support for manatee protection plans in Charlotte, Lee, and Collier Counties, for better boat speed zones, and for better habitat protection; developing and disseminating public awareness and education programs for Charlotte, Lee, and Collier Counties; contacting and providing information to local elected officials, FWCC Commissioners, and water management district board members on manatees and manatee protection issues; and working with local governments and State and Federal agencies to develop manatee protection plans.


You question whether her employment creates a conflict of interest with her duties as a member of the Rule Review Committee that would be prohibited by the Code of Ethics.


The Code of Ethics for Public Officers and Employees provides in relevent part as follows:


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 or she 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 or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.]


The term "public officer" is defined in Section 112.313(1), Florida Statutes, to include "any person serving on an advisory body." Therefore, the members of the Rule Review Committee must comply with the standards of conduct set by Section 112.313(7)(a).

The first part of this statute prohibits a public officer from being employed by a business entity that is regulated by her agency. In our view, the manatee conservation organization is not subject to the regulation of her agency, even though, as you have advised, it owns one vessel that would have to comply with whatever boating rules might be adopted by FWCC. Rather than exercising any regulatory authority, the Rule Review Committee is merely an ad hoc, advisory body. In addition, the regulation of boating activities and other waterway users is accomplished through the enforcement of duly promulgated rules and laws by the County and the FWCC and we have opined that the enforcement of laws of general applicability does not constitute "regulation" for purposes of Section 112.313(7)(a). See, e.g., CEO 87-58, where we found that no prohibited conflict of interest would be created were a Florida Marine Patrol officer to work as a shellfish relaying monitor during his off-duty hours, as the seafood dealers who would employ the patrol officer would not be subject to the regulation of his public agency.


The second part of Section 112.313(7)(a) prohibits employment that would create continuing or frequently recurring conflicts between private interests and the performance of public duties or that would impede the full and faithful discharge of public duties. In CEO 87-82, we concluded Section 112.313(7)(a) was not violated where members of a city advisory committee were asked to make recommendations concerning the transfer and redevelopment of the city's equipment yard when they were officers or owners of businesses located near the property, stating:


First, we note that the Committee serves solely an advisory function and is not responsible for any final determination regarding the use or development of the equipment yard property. Secondly, we note that as expressed in the resolution creating the Committee the City Commission is of the opinion that the property 'could be put to a more economically feasible use.' In other words, the purpose for creating the Committee was to improve the equipment yard property; the natural result of such improvement would be to increase the value of nearby properties.


Similarly, here, the Rule Review Committee serves solely an advisory function and the entire process involving the Rule Review Committee contemplates advice and recommendations from persons who are the most directly interested in the outcome--equal numbers of "manatee and other environmental advocates" and of "waterway users." In contrast to more typical public positions, none of the members of the Rule Review Committee are supposed to be completely neutral in his or her views.[1]

The subject Rule Review Committee member's employment contemplates that she represent the organization before local and State agencies, including the FWCC. In a telephone conversation with our staff, you advised that the manatee conservation organization would comment on the proposed rule at the level of the FWCC, rather than the local, county level, and that although she might present the organization's position before the FWCC, she would not appear before the Lee County Committee. Based on this, we find that our previous decisions regarding representation of another before the agency on which one serves would not be applicable. See, e.g., CEO 78-86.


Accordingly, we find that no prohibited conflict of interest exists where the subject county manatee rule review committee member is employed by a manatee conservation organization.[2]


QUESTION 2:


Is the subject Rule Review Committee member prohibited from voting on the proposed manatee protection rules because of her employment with the manatee conservation organization?


Your question is answered below.


Section 112.3143, Florida Statutes, is the provision of the Code of Ethics that governs voting conflicts of interest. Section 112.3143(1) makes it clear that persons serving on advisory bodies are considered to be "public officers" subject to its provisions. Section 112.3143(2) specifies that "state public officers" are allowed to vote on matters on which they have a conflict of interest, but must disclose the nature of that interest. Section 112.3143(3), on the other hand, requires "county, municipal, and other local public officers" to abstain from voting on conflicting matters and to disclose the nature of their interest, as follows:


No county, municipal, or other local public officer shall vote in an official capacity upon any measure which inures to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom the officer is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(3); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143(3)(a), Florida Statutes.]


Section 370.12(3)(f), Florida Statutes, requires rule review committees to be established by the affected counties, requires their members to be designated by the county commissions, and requires counties to "provide logistical and administrative staff support" to the rule review committees. Therefore, we conclude that members of the Rule Review Committee are county officers, rather than State officers, notwithstanding the fact that it is established to advise the FWCC. See CEO 88-3.


Section 112.3143(3)(a) requires local public officers to abstain from voting on matters that inure to their "special" private gain or loss or to that of their principals (employers). In past decisions, we have concluded that there is no "special" gain or loss where the size of the class of persons affected by a vote is large and the public officer's interest is impacted in the same manner as other members of the class. See, e.g., CEO 77-129. Further, we have required that the gain or loss not be "remote" or "speculative," in order to constitute "special" gain or loss. See, e.g., CEO 94-18 and CEO 86-35.


You have not described any particular matter that the Rule Review Committee will be expected to vote on but, in general, we do not believe that measures affecting boating speed zones or protecting manatee habitat would directly result in gain or loss to either the subject Committee member or her employer. Therefore, as a general rule, we conclude that votes by the Rule Review Committee in favor of or against rules proposed by the FWCC would not inure to her "special" private gain or loss or to that of the manatee conservation organization.[3] However, she should seek additional guidance from us if confronted with a vote on a matter other than as described.


ORDERED by the State of Florida Commission on Ethics meeting in public session on July 22, 2004 and RENDERED this 27th day of July, 2004.




__________________________

Joel Gustafson

Chairman



[1]Note that our view of the situation also would allow a person who is employed by a boating organization to serve on a mantee rule review committee.

[2]As we find that the subject RRC member's employment is not prohibited by Section 112.313(7)(a), we need not decide the applicability of Section 112.313(7)(b), which provides:

(b) This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance.

[3]You have provided no indication that the Committee member's employment or compensation is directly linked to her vote(s) as a member of the Rule Review Committee.