CEO 77-145 -- September 21, 1977
CONFLICT OF INTEREST
MUNICIPAL EMPLOYEE SERVING AS CHIEF NEGOTIATOR FOR MUNICIPAL EMPLOYEES IN COLLECTIVE BARGAINING AND AS REPRESENTATIVE OF EMPLOYEES ON MUNICIPAL CIVIL SERVICE BOARD
To: (Name withheld at the person's request.)
Prepared by: Phil Claypool
Section 112.313(7)(a), F. S., prohibits a public employee from having an employment or contractual relationship with a business entity doing business with that employee's public agency. Where a municipal employee serves as chief negotiator for a municipal employees' association in collective bargaining matters, however, he has neither an employment nor contractual relationship with the employees' association because he serves without pay. As a member of the association, he may be deemed to have a contractual relationship with the group; however, it is clear that the association does not do business with the civil service board on which the employee sits; and the association is not subject to the regulation of that board. Accordingly, the Code of Ethics does not prohibit a municipal employee from acting as the chief negotiator for municipal employees in collective bargaining matters while simultaneously serving on the municipality's civil service board. Recognizing the sensitive nature of the two positions, however, the employee is advised to familiarize himself with the prohibition contained in s. 112.313(8), F. S., relating to the disclosure or use of information obtained by reason of one's public position.
Does a prohibited conflict of interest exist where a municipal employee who is the chief negotiator for municipal employees in collective bargaining matters also serves on the municipality's civil service board?
Your question is answered in the negative.
In your letter of inquiry you advise that Mr. John Schwarz is an employee of the City of Miramar and that he has been designated the Chief Negotiator for the General Association of Miramar Employees, a position which requires him to represent the association in collective bargaining matters with the city. The chief negotiator of the association is chosen by the association members and serves as a volunteer, without pay. In addition, you advise that Mr. Schwarz recently has been elected by his fellow employees as the employee's representative on the city's civil service board.
The civil service board is composed of seven members; two of these members are appointed by the mayor, two are elected by the city council, one is elected by city law enforcement officers, one is elected by other city employees, and the remaining member is chosen by the first six. City of Miramar Ordinance No. 77-32. The civil service board recommends rules and regulations regarding the city's employment of persons in the classified service; makes investigations and reports regarding the effect of these rules; and hears appeals from dismissals, suspensions, and reductions in grade.
For the sake of clarity, we note that your question is not whether a municipal employee may serve on that municipality's civil service board or whether a municipal employee may serve as a negotiator for a collective bargaining unit composed of municipal employees. Instead, your question relates to the propriety of a municipal employee's serving on a civil service board while also serving as a negotiator for a collective bargaining unit of city employees. In this regard Mr. Edward Paul Kreiling, the city attorney, has informed us that grievance procedures are a subject of collective bargaining, that some civil service board records are not public records, and that on appeals before the board the employee is entitled to be represented by a member of his collective bargaining unit.
The Code of Ethics for Public Officers and Employees provides 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 is doing business with, an agency of which he 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), F. S. 1975.]
Here, the civil service board is the subject employee's agency as that term is defined in s. 112.312(2), F. S. (1976 Supp.). In addition, we find that the General Association of Miramar Employees is a business entity as that term is defined in s. 112.312(3) of the Code of Ethics.
We find that the subject employee does not have an employment or contractual relationship with the association since he is chosen by the members of the association and he serves without pay. See CEO's 76-21 and 77-95. As a consequence, the above-quoted provision would not prohibit the subject employee from serving as chief negotiator and as a member of the civil service board.
As a member of the association, the subject employee may have a contractual relationship with the association. However, it is clear that the association is not doing business with the civil service board and is not subject to the regulation of the board. Nor do we perceive that membership in the association would present a frequently recurring conflict with the performance of the duties of a member of the civil service board, especially in view of the fact that city ordinance requires that one of the members of the board be elected from among the employees of the city.
Accordingly, we find that in this situation the Code of Ethics does not prohibit the subject employee from acting as the chief negotiator for municipal employees in collective bargaining matters while serving on the municipality's civil service board. However, we recognize the sensitive nature of both of these positions, and therefore we caution the subject employee to be aware of the following provision of the Code of Ethics:
DISCLOSURE OR USE OF CERTAIN INFORMATION. -- No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), F. S. 1975.]