CEO 76-5 -- January 16, 1976
CONFLICT OF INTEREST
PUBLIC OFFICER ALSO OFFICER OF A CORPORATION DOING BUSINESS WITH HIS AGENCY OR EMPLOYED BY CORPORATION DOING BUSINESS WITH THE CITY
To: H. D. Robuck, Lake County Board of County Commissioners, Tavares
It is not deemed to be a conflict of interest where a member of a county planning and zoning commission is an officer of a corporation which sells products to the county. Florida Statute s. 112.316(1975) provides that it is not the intention of the Code of Ethics to prevent public officers or employees from holding private employment which does not interfere with the full and faithful discharge of their public responsibilities. Therefore, although s. 112.313(3) prohibits a local officer from doing business with any agency within the political subdivision of his own agency, in the above- described situation s. 112.316 is deemed to take precedence. The subject planning and zoning commission member is not in a position either to supervise or regulate the county agencies which contract with his private business, and therefore there is no interference with the discharge of his public duty. He is prohibited, however, from privately dealing with his own agency, the planning and zoning commission.
No conflict exists under s. 112.313(7) where a member of a county planning and zoning commission is employed by a utility corporation that sells electricity to the county. Such contracts are entered into by the board of county commissioners, an agency separate and distinct from the planning and zoning commission pursuant to the definition of "agency" as found in s. 112.312(1). One is prohibited only from holding private employment with any business or agency which does business with one's own agency.
1. Would a prohibited conflict of interest exist where a member of a county planning and zoning commission is an officer of a corporation, were that corporation to sell concrete products to the county?
2. Does a prohibited conflict of interest exist where a member of a county planning and zoning commission is employed by a utility corporation that sells electricity to the county?
Question 1 is answered in the negative.
Your letter of inquiry advises us that the subject planning and zoning commissioner is an officer of a local corporation that sells prestressed concrete products to state, county, and local governmental bodies. In addition to being an officer of the corporation, the commissioner owns slightly less than 5 percent of its stock.
The Code of Ethics for Public Officers and Employees states in relevant part:
DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent or public officer acting in his official capacity shall either directly or indirectly for his own agency purchase, rent, or lease any realty, goods, or services from any business entity of which he, his spouse, or child is an officer, partner, director, or proprietor, or in which such officer or employee, his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency if he is a state officer or employee, or, if he is serving as an officer or employee of any political subdivision, to that subdivision or to any agency thereof. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect nor be construed to prohibit contracts entered into prior to:
(a) The effective date of this act;
(b) Qualifications for elective office;
(c) Appointment to public office;
(d) Beginning public employment
[Emphasis supplied; Fla. Stat. s. 112.313(3)(1975).]
The emphasized portion of the above-quoted provision prohibits a public officer from acting in his private capacity to sell goods to his political subdivision or to any agency of that subdivision. In our view, being an officer of a corporation selling goods to the county constitutes acting in one's "private capacity" to sell goods to the county even though the subject officer is not the corporate salesman or otherwise engaged in promoting the sale to his governmental agency or political subdivision.
Accordingly, it would appear that, under provisions of s. 112.313(3), the commissioner is prohibited from being both a member of the planning and zoning commission and an officer of the aforementioned corporation while the corporation is selling goods to any agency of the county. However, in construing the provisions of this code as they apply to private employment we must give careful consideration to that provision of the Code of Ethics which states:
CONSTRUCTION. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a . . . county . . . from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, [or] employee . . . of his duties to the . . . county . . . involved. [Fla. Stat. s. 112.316(1975).]
Considering all relevant facts in light of ss. 112.313(3) and 112.316, we find that the subject planning and zoning commissioner is not in a position either to supervise or regulate the county agencies which contract with his concrete business. Nor do his public duties in any way involve approval of or the giving of advise or recommendations as to such contracts entered into by the county. Accordingly, the above-described situation does not in our view interfere with the full and faithful discharge of the commissioner's public duties and is therefore permissible under the Code of Ethics.
Please note, however, that the subject corporation could not contract with the planning and zoning commission as long as the commissioner is affiliated concurrently with both of these entities.
Note also that there is no restriction in s. 112.313(3) that would prohibit the commissioner from holding that office while the corporation of which he is an officer sells goods to state or municipal bodies or to other political subdivisions as they are not agencies of the county.
Question 2 is answered in the negative.
You have informed us that the utility corporation in question bills the county for electric service rather than the subject planning and zoning commission. The Code of Ethics for Public Officers and Employees states in relevant part:
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 doing business with an agency of which he is an officer or employee excluding those organizations and their officers who enter into or negotiate a collective bargaining contract with any state, county, or municipal, or other political subdivision of the state when acting in their official capacity; 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Fla. Stat. s. 112.313(7)(1975).]
The above-quoted provision prohibits a public officer from being employed by a business entity that is doing business with his agency. The term "agency" is defined to include any county of this state and any commission therein. Fla. Stat. s. 112.312(1)(1975). As previously stated, the utility corporation at issue is selling to the county rather than to the planning and zoning commission. Accordingly, we find no prohibited conflict on the part of the subject commission member/corporate employee as the corporation is not selling to the commissioner's agency.