CEO 06-24 -- December 6, 2006

CONFLICT OF INTEREST

COUNTY TRANSPORTATION SERVICE BOARD MEMBER EMPLOYED BY ENTITY CONTRACTING WITH THE COUNTY

To: Name withheld at person's request (Boca Raton)

SUMMARY:

A conflict of interest exists under Section 112.313(7)(a), Florida Statutes, where a member of a county transportation service board is employed by one of the county's contract transportation providers.


QUESTION:

Does a prohibited conflict of interest exist where you, a member of the Palm Tran Service Board, a body which authorizes changes in fixed routes and schedules and advises the Palm Beach County Commission as to fixed route and paratransit services, are employed by a provider of paratransit services contracting with the County?


Your question is answered in the affirmative.


In your letter of inquiry, additional materials supplied to this office, and telephone conversations between you and our staff and between an Assistant Palm Beach County Attorney and our staff, you advise that Palm Tran is Palm Beach County's public transportation system and you are a member of the Palm Tran Service Board (PTSB). The PTSB, according to its enabling resolution, is "established to provide an ongoing mechanism for the participation of individuals, with and without disabilities, in the continued development, implementation, and assessment of all Palm Tran services."


You advise that the County's public transportation services consist of regular "fixed route" bus services, referred to generically as "Palm Tran" and paratransit services to the elderly and disabled known as the "Palm Tran Connection." You also advise that both Palm Tran and the Palm Tran Connection are administratively staffed by the County. Fixed route buses and equipment, you relate, are owned by the County, and the drivers are County employees, while Palm Tran Connection services are provided by five private companies contracting with the County, one of which is MV Transportation, Inc. (MV).


The PTSB's enabling resolution states that it acts "as an advisory board to the Board of County Commissioners regarding Palm Tran's fixed route and paratransit programs and services" except in one respect: the board has final authority to "approve or reject changes to fixed routes and schedules" after concluding a public hearing or public comment process. The PTSB, you advise, spends about twenty to twenty five percent of its time on matters related to changes in fixed route services. All authority for approval of Palm Tran's capital and operating budgets, establishment of fares, employment of staff, grant applications, and approval of contracts and purchases lies with the County Commission. You relate that the PTSB has no budget and is staffed by Palm Tran, which also has a contract compliance officer to monitor the paratransit provider's contracts.


You write that you are the Chair of the PTSB Paratransit Subcommittee. You relate that the subcommittee hears passenger concerns and reports from the service providers and works with citizens and providers to improve services and ridership. Palm Tran staff, you advise, are responsible for addressing complaints. However, you also state that complaints and comments presented at meetings of the Paratransit Subcommittee "are discussed at the meetings (Para-transit) and suggestions are made as to how these service problems might be handled through discussion with the sub-committee members and Palm Tran Connection staff." You further advise that the County "and Palm Tran Connection's staff has the responsibility to see to it that problems and complaints are addressed, the Para-transit committee can only discuss and advise staff as to how to handle such things." Minutes of the July, August, and September meetings of the Paratransit Subcommittee reflect discussion of issues such as: driver complaints about breaks and retrieving clients from nursing homes, rider concerns over driver fluency in English, drivers honking horns instead of going to the door to pick clients up and improperly securing wheelchairs, and vans not being equipped with step stools. You also have advised, and the minutes confirm, that representatives of the paratransit providers are typically in attendance at the meetings of the Paratransit Subcommittee.


You write that you have accepted employment with MV as a "Consumer Advocate." In this role, you relate


I assist MV with becoming more responsive and sensitive to the needs of MV's passengers who are disabled. I work on consumer complaints, agency service problems, driver training, and conduct surveys of both fixed route and paratransit services, by talking to the drivers, passengers, and MV and Palm Tran staff. I bring the information and feedback I receive back to the ears of both MV and Palm Tran staff so that changes may be made that will improve the County's public transportation and paratransit systems.


Your job description calls for you to, among other things,


•Interface between MV, the county and the rider/consumers.


•Attend public hearings and meetings to represent the company and to bring feedback to MV, Palm Tran Connections and the county about problems as well as possible solutions to transit system problems.


•Help represent MV in contract or RFP proposals as needed by MV.


•Take part in meetings and events of a legislative nature or purpose and possibly including conducting outreach functions that enhance MV's and Palm Tran Connection's image and influence in the community.


•Working one-on-one with consumers and agencies that have complaints with MV services to find workable solutions.


Section 112.313(7), Florida Statutes, provides:


CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.(a) 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, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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.


The first part of Section 112.313(7) prohibits a public officer or employee from having a contractual relationship with any business entity regulated by or doing business with his agency. The second part of Section 112.313(7) prohibits a public officer from having any contractual relationship which would 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. This provision establishes an objective standard which requires an examination of the nature and extent of the public officer's duties together with a review of his private interests to determine whether the two are compatible, separate and distinct, or whether they coincide to create a situation which "tempts dishonor." Zerweck v. Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982).


The threshold question here is "what is your public agency?"


Section 112.312(2), Florida Statutes, defines "agency" 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.


We have interpreted this definition to identify a public officer's or employee's "agency" as the lowest governmental unit within which the officer's or employee's influence might reasonably be considered to extend. So, for example, in CEO 96-15, we found the "agency" of a city manager to be the city.

We also have found the "agency" of board members whose boards were solely advisory in nature to be that unit of government which they serve. For example, in CEO 99-11 we found the "agency" of a member of the DCF District Health and Human Services Advisory Board to be DCF District 10, in CEO 91-26 we found the Monroe County Board of County Commissioners was the "agency" both of members of the Monroe County Tourist Development Council and members of District Advisory Committees to that Council, and in CEO 94-36, an inquiry quite similar to yours, we found the "agency" of the Broward County Advisory Board for Persons with Disabilities to be the county.


The PTSB, however, unlike the boards in the cited opinions, has the independent authority to act in that it can approve or reject changes to routes and schedules in the fixed route system. Accordingly, it cannot be called a solely advisory board, and we therefore find that your "agency," for purposes of Section 112.313(7), is the PTSB.


As the PTSB is not doing business with MV Transportation, there is no conflict under the first part of Section 112.313(7).


However, in your capacity as a member of the PTSB, and in particular as a member of its Paratransit Subcommittee, you are in a position to review and comment on MV's performance. As an employee of MV, you may be called upon to "interface" between MV and the County, or to represent MV in contract proposals. Such a situation, we believe, presents a clear temptation for you to disregard your responsibility of impartiality in your public capacity in favor of your employer and thus presents a conflict under the second part of the statute. By this we do not intend to suggest that you would succumb to such temptation. As we have stated in other opinions, our concern is whether the interests of an official's private employer could coincide with his public duties to "tempt dishonor," rather than with whether the official, through self-imposed limitations, could avoid succumbing the temptation. CEO 98-4, CEO 96-14.


Section 112.313(12), Florida Statutes, provides that the requirements of subsection (7) as they pertain to persons serving on advisory boards may be waived by the body which appointed the person to the advisory board, upon a full disclosure of the transaction or relationship to the appointing body prior to the waiver and an affirmative vote in favor of waiver by two-thirds vote of that body. In CEO 94-36, a member of the Broward County Advisory Board for Persons with Disabilities was employed by a company responding to a county request for proposals. Although we found that although a conflict of interest would exist under Section 112.313(7)(a), Florida Statutes, we advised that the county commission could elect to waive the conflict by following the procedures contained in Section 112.313(12), Florida Statutes.


The exemption of 112.313(12) cannot be applied here because, as previously pointed out, the PTSB is not an "advisory board." Nor is the exemption of Section 112.313(7)(b), which negates the conflict when practice in a particular occupation is "required or permitted" by ordinance applicable, because the resolution establishing the PTSB does not call for any of its members to be employed by a paratransit operator.


Accordingly, we find that a conflict of interest would exist were you to be employed by MV Transportation, a company contracting with the County to provide paratransit services, while at the same time serving on the Palm Tran Service Board.


ORDERED by the State of Florida Commission on Ethics meeting in public session on December 1, 2006 and RENDERED this 6th day of December, 2006.



_________________________
Norman M. Ostrau, Chair