CONFLICT OF INTEREST
COUNTY PARKS AND RECREATION EMPLOYEE EMPLOYED BY
NONPROFIT ORGANIZATION ACTING IN COOPERATION WITH COUNTY
To: Stephen M. Luzinski, Palm Beach County Parks and Recreation
A prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, does not exist where a county parks and recreation employee also is employed by Special Olympics, which has a cooperative arrangement with the county. Under the circumstances presented, Section 112.316, Florida Statutes, applies to negate a literal reading of the first part of the prohibition and no prohibited conflict under the second part is indicated. CEO 98-5 and CEO 91-55 are referenced.1
Does a prohibited conflict of interest exist where a county parks and recreation employee also is employed by a nonprofit organization that has a cooperative arrangement with the county?
Under the circumstances presented, your question is answered in the negative.
By your letter of inquiry and additional information provided to our staff, we are advised that since June 2004 you have been employed part-time by Palm Beach County Parks and Recreation, Therapeutic Recreation Department ("PBC-TRec" or "Recreation"), working with persons with physical and intellectual disabilities. In addition, you advise that since March 2005 you also have been employed part-time by Special Olympics FL, Palm Beach County ("SO-FL-PBC" or "Special Olympics"), a nonprofit organization also working with persons with physical and intellectual disabilities.2 Further, you advise that Special Olympics' and Recreation's offices are located next to each other in the same building, since they, working in conjunction with one another, provide programs for persons with disabilities;3 and that their office building also houses another nonprofit, which provides art programs to the disabled.
Additionally, you describe your holding both part-time jobs as a cooperative arrangement that benefits all. More specifically, you advise that you are responsible for the front reception desk where you answer the main (same) telephone number for both Special Olympics and Recreation, answering all questions about Recreation and Special Olympics programs and activities, directing telephone calls when necessary, and sending out information and brochures for both Recreation and Special Olympics. Continuing, you advise that you help maintain the database for both, that you add toner and paper to the copy machine that is shared by both, that you send facsimiles for both (on the shared fax machine), that on Monday evenings you coach the Recreation softball team in Boca Raton, that on Tuesday evenings you coach and teach a Special Olympics swim team at a County pool in Delray, that recently you worked the Special Olympics area bowling competition in Sunrise and an outdoor event for Recreation, and that you will be traveling to Sebastian for Special Olympics state swimming competition. Further, you advise that when you work on a Recreation project you drive Recreation's van, that when you work on a Special Olympics project you drive Special Olympics' van, and that both vans are parked next to each other in front of the shared building.
Also, you advise that you do not work more than forty hours per week for both part-time jobs combined, that you have no other jobs, that your having the two employments was known from the beginning, and that you are sure that you received the Special Olympics job due to your reputation of good work for the County. Additionally, you advise that you do not award or manage any sales/purchases or any other contracts for either Recreation or Special Olympics, that you did not sign for the County or enter into in behalf of the County the arrangement with Special Olympics, that you do not manage any personnel, that you do not have any involvement in employment matters, and that you do not have, in your capacity as a Recreation employee, any responsibility to monitor, evaluate, or recommend regarding Special Olympics and its interface with the County, these functions being the province of County personnel more senior than yourself.4
Thus, you ask our opinion as to whether your employment with Special Olympics creates a prohibited conflict of interest with your public employment with Recreation, maintaining that you do not have any influence or input as to any organizational, contractual, financial, employment, or other substantial matter as to which a prohibited conflict might arise between your two positions. Further, you reason that rather than being conflicting, your situation has worked to the benefit of both the County and Special Olympics, splitting your cost between them and allowing you to earn a living wage.
The Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes)5 contains the following prohibition relevant to your inquiry:
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.]
If the first clause of Section 112.313(7)(a) were applied literally or in isolation, your employment with Special Olympics apparently would create a prohibited conflict of interest for you, inasmuch as you would hold employment with a business entity which is doing business with your public agency by virtue of the arrangement between Recreation and Special Olympics described herein.6 However, we often have applied Section 112.316, Florida Statutes,7 to negate a mechanical or literal reading of the first part of Section 112.313(7)(a) in situations in which a public employee or a public officer had no public duties or public responsibility he or she would be tempted to compromise in order to benefit himself or herself or his or her secondary/additional employer. See, for example, CEO 98-5 (county employees working part-time at fair) and CEO 91-55 (part-time public school cafeteria cashier selling real property to school board).
We find that your situation, too, warrants the application of Section 112.316, in that the reality of it, rather than indicating the potential for disregard of public capacity decisionmaking to the material favor of Special Olympics and to the detriment of Recreation (the County), indicates the performance of important, but structured and protocol-driven, public duties to the benefit of both of your part-time employers.8
Accordingly, under the circumstances presented, we find that a prohibited conflict of interest does not exist where you, an employee of the County, also are employed by Special Olympics.9
ORDERED by the State of Florida Commission on Ethics meeting in public session on December 5, 2008 and RENDERED this 10th day of December, 2008.
Cheryl Forchilli, Chair
The County and Special Olympics 'do business with' each other in that they have agreed to the following funding arrangements: Palm Beach County funds personnel salaries, office space, and equipment/supplies needed for [Special Olympics] personnel to function. A S.O. volunteer management team helps to raise the funds associated with the operating budget and provides input into how these funds are spent (i.e., building fund, galas, and my 20 hour per week [Special Olympics-Recreation] salary that is determined by the Special Olympics County Coordinator). I attend these Special Olympics volunteer management team meetings in the capacity of a Special Olympics representative, however I have no input into my employee matters, including my hours which are capped at 20 hours a week and my wage which is capped at $12.00/hour.
. . . when I sit at the reception desk, I receive phone calls requesting information for both County programs and Special O programs. The information for Special Olympics is contained within the County Parks and Rec brochure . . . . I do not 'refer' clients so much as I try to determine their needs and tell them what programs are available in Special O and Parks and Rec. To a certain extent, the County Parks and Recreation 'competes' with Special O because they both provide recreational opportunities to people with intellectual disabilities. But since they have decided to work together, they do not compete but work in tandem.
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 or her duties to the state or the county, city, or other political subdivision of the state involved.