CEO 98-5 -- March 5, 1998
CONFLICT OF INTEREST
COUNTY EMPLOYEES WORKING PART-TIME AT FAIR
To: Name Withheld at Person's Request (Tavares)
SUMMARY:
No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were various county employees to work at the county fair for an organization leasing fairgrounds from the county. The organization would not be regulated by or doing business with the employees' "agencies," and no frequently recurring conflict or impediment to the full and faithful discharge of public duty would be created. CEOs 82-70, 85-16, and 90-75 are referenced.
QUESTION:
Would a prohibited conflict of interest be created were various county employees to work for an organization leasing the county's fairgrounds?
Under the circumstances set forth herein and subject to the condition noted, your question is answered in the negative.
By your letter of inquiry, two letters from you to our staff, and materials accompanying the letters, we are advised that several employees of County departments desire to work part-time at the upcoming Lake County Fair; that essentially the employees work as laborers for the County; that their part-time employment would be with the Lake Agriculture and Youth Fair Association, Inc., a nonprofit corporation (hereinafter "organization") which leases the Fair site from the Board of County Commissioners for approximately five weeks each year; and that their secondary employment would consist of cleanup of restrooms, buildings, grounds, and spills, setup of tables, chairs, and equipment, painting of signs, and repairs and related maintenance as needed.
In addition, you advise that the original lease (dated 1988) was drafted by the County's Health and General Services Department (now known as the Community Services Department); that for annual renewals of the lease a County employee "simply rolls the [Contract] over by changing the dates thereof and, if necessary, the name of the County Chairman"; that the renewals are placed on the Board of County Commissioners' agenda for approval; and that there is no negotiation/re-drafting of renewals. Also, you state that the lease is between the County (via its Board of County Commissioners) and the organization, and thus that it is not between the organization and any County department.
Further, you advise that no entity of the County regulates the organization, inasmuch as the Fairgrounds leased by the organization from the County are situated within the City of Eustis, resulting in a situation in which all permitting and inspections regarding the Fair are the responsibility of the City and the City's fire department, with "County employees hav[ing] no role in the regulation of the [organization]."
Additionally, you advise that the subject County employees, when working for the organization on their off-time, are not expected to monitor or survey the activities of the organization in behalf of the County in any way. Further, you advise that one of the subject employees would be required (as part of his public duties during his public working time) to lend assistance to the organization in maintaining the Fairgrounds during the organization's lease term, including setting up booths and related work. Also, you advise that two of the subject employees are not required, as part of their public duties, to assist the organization in any way, and that any public work they perform at the Fairgrounds is in assistance of farmers' markets on Thursdays and other special events not including events of the organization. In addition, you advise that the fourth employee's public job function primarily involves maintenance of County road signs, and that his public job duties do not involve the Fairgrounds.
The Code of Ethics for Public Officers and Employees provides in part:[1]
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 first part of Section 112.313(7)(a) would seemingly[2] prohibit the employees from working for the organization, if the organization is regulated by or is doing business with their public "agency." Inasmuch as you have represented that entities of the City of Eustis, rather than the County, are responsible for regulation of a fair within the geographical boundaries of the municipality, we find that the organization is not subject to the regulation of the employees' agencies. Further, we find that the organization is not doing business with the employees' agencies (the two Departments), but rather with the County via its Board of County Commissioners. See CEO 82-70 (little league organization receiving funding from city council not doing business with city's department of parks and recreation).
Additionally, since you have represented to us that three of the employees are not required to perform, as a part of their public duties, the work they will be doing for the organization, and since you have represented that the public job duties of none of the four employees involves inspecting or monitoring properties or facilities leased by their would-be private employer from the County, we find that their secondary employment with the organization would not create a continuing or frequently recurring conflict or impediment to the full and faithful discharge of public duty under the second part of section 112.313(7)(a).
We also find that secondary employment with the organization of the one employee whose public work involves the same type of functions (maintenance, setting up booths/tables, etc. at the Fairgrounds) that he would be performing privately for the organization would not be prohibited by Section 112.313(7)(a), provided that his work for the organization is additional to the setups, maintenance, etc. that the County is to perform at the Fairgrounds through this employee during his County work time. See CEO 90-75 (county library personnel performing additional research services after their regular working hours for library patrons).
Accordingly, under the circumstances herein and subject to the condition noted, we find that a prohibited conflict of interest would not be created were various County employees to work in their off-time for the organization putting on the annual County Fair.
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 5,1998 and RENDERED this 10th day of March, 1998.
__________________________
Kathy Chinoy
Chair
[1] Section 112.313(3), Florida Statutes, is not applicable to your inquiry, inasmuch as your scenario indicates that the County is leasing realty to the organization rather than from it.
[2] Further, we note that even if the organization were deemed to be doing business with the employees' departments rather than with the County/Board of County Commissioners, Section 112.316, Florida Statutes, would negate a prohibited conflict, due to the employees' lack of input in their public capacities as to the lease between the organization and the County, and due to monitoring of the organization's operations at the Fairgrounds not being a part of their public job duties. See, among many others, CEO 85-16 (county public health unit employee not required in public job capacity to inspect children's homes can be secondarily employed by children's home inspected by her agency). Section 112.316 provides:
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.