CEO 13-12 - September 18, 2013
CONFLICT OF INTEREST
CITY CRA EXECUTIVE DIRECTOR'S COMPANIES PERFORMING
SERVICES FOR MUNICIPALITIES WHEN SUCH MUNICIPALITIES
ARE ALSO SERVED BY A CITY CONTRACTOR
To: Name withheld at person's request
Under the particular facts of this opinion, no prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were private companies owned by the Executive Director of a Community Redevelopment Agency (CRA) to contract with other municipalities, despite the fact that these other municipalities will also be using an independent contractor to the Executive Director's CRA. The Executive Director has no contractual relationship with the independent contractor, and will not be in a position to review his work or billing with respect to her agency.
Would a prohibited conflict of interest be created under Section 112.313(7)(a), Florida Statutes, were companies owned by the Executive Director of the CRA for the City of West Palm Beach to continue to contract with other municipalities, if those other municipalities employ an independent contractor and the City of West Palm Beach decides to engage that independent contractor?
Under the circumstances presented, your question is answered in the negative.
Your letters reflect that this opinion is requested by the City of West Palm Beach and by the City's redevelopment manager1 who, as part of her position, serves as Executive Director for the City's CRA ("Executive Director"). You state that in her private capacity, the Executive Director has created two companies: Metro Strategies, Inc. ("Metro") and RMA, LLC ("RMA"). Both companies, you relate, provide consulting services to CRAs in other municipalities-Metro for the City of Dania Beach and RMA for Pompano Beach.
You advise that the City of West Palm Beach wishes to contract with a former City employee for assistance in preparing its 2013/2014 CRA budget. This former employee also has a contract with the City of Pompano Beach to provide CRA financial services, and it is anticipated he will contract to provide similar services to the City of Dania Beach. As previously noted, these two municipalities contract for CRA services with Metro and RMA-the companies created by the Executive Director. You state that if the City of West Palm Beach elects to contract with the former employee, the Executive Director would be removed from having any interaction, as an employee of the City of West Palm Beach, with the former employee. Further, you state that the Executive Director would neither evaluate the former employee's work product nor approve any payments that the City makes to him. Given this context, you ask whether it would create a conflict of interest for the Executive Director were her companies to continue to contract with Dania Beach and Pompano Beach should the City of West Palm Beach hire the former employee to assist in the preparation of its CRA budget for 2013/2014.
Section 112.313(7)(a), states:
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.
The first part of Section 112.313(7)(a) prohibits the Executive Director from having a contractual relationship with any business entity (including a sole proprietor) that is doing business with, or is regulated by, the City of West Palm Beach. Therefore, the Executive Director is prohibited from having a contractual relationship with the former employee while the former employee is contracting with the City of West Palm Beach. However, the Executive Director does not, and is not expected to, have a contractual relationship with the former employee; her only contractual relationships are with her own corporation and LLC. While the former employee is anticipated to perform contractual services for the Cities of Dania Beach and Pompano Beach, any contract will be with the municipalities themselves, not with the Executive Director. Accordingly, no violation of the first part of Section 112.313(7)(a) will be created should the City contract with the former employee.
The second part of Section 112.313(7)(a) prohibits the Executive Director from having any contractual relationship which would create a continuing or frequently recurring conflict between her private interests and her public duties, or which would impede the full and faithful discharge of her public duties. The former employee and the companies owned by the Executive Director will both be performing CRA-related services as independent contractors for the cities of Dania Beach and Pompano Beach. However, nothing in the materials you have provided suggests that the Executive Director's companies' performance of these services would tempt her to dishonor her public responsibilities with respect to the City of West Palm Beach. This is especially so in light of the fact that the City will remove the Executive Director from interacting, in her City employee capacity, with the former employee, meaning that if he is hired, she will not be evaluating his work product or authorizing any payments to him
Accordingly, under the particular facts of this inquiry, we find that it would not create a prohibited conflict under Section 112.313(7)(a) if the companies owned by the Executive Director of the West Palm Beach CRA continue to contract with the cities of Pompano Beach and Dania Beach, even if the City of West Palm Beach enters into contract with a former employee who is independently contracting with these other cities. We caution that this opinion addresses only the State Code of Ethics, not any local standards of conduct.
ORDERED by the State of Florida Commission on Ethics meeting in public session on September 13, 2013, and RENDERED this 18th day of September, 2013.
Morgan R. Bentley, Chair
There are two letters of inquiry. One is from …, the City's Ethics Officer, and the other is from …, a private attorney writing in behalf of the employee. There is no material fact discrepancy between the two letters.