CEO 78-27 -- May 18, 1978

CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST

AIRPORT AUTHORITY MEMBER EMPLOYED AS PILOT BY AIRLINE SERVING AIRPORT

To: (Name withheld at the person's request.)

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(7)(a), F. S. 1977, prohibits a public officer from being employed by a business entity which is doing business with or is regulated by his agency. Accordingly, a member of an airport authority who is privately employed as a pilot by an airline serving the airport seemingly has a conflict of interest. However, s. 112.316, F. S., of the Code of Ethics further provides that it is not the intent of the code to preclude private pursuits which do not interfere with the full and faithful discharge of public duty. Upon close examination of the authority member's situation, no prohibited conflict is deemed to be created as his private interests are not necessarily the same as those of the airline which employs him. As a pilot, he is not employed in a management capacity or in a capacity in which he is responsible for the airline's transactions with the airport of the airport authority. Secondly, as a member of an airline pilots' union, he is sufficiently insulated from any pressure which his employer might bring to bear upon him in order to influence his official decisions. While there is nothing in his employment contract which would prohibit the airline from rewarding him for official decisions favorable to the airline, finding a prohibited conflict of interest on this ground would go too far toward creating a presumption of unethical behavior. Other sections of the Code of Ethics have been enacted for the purpose of prohibiting such conduct. See, for example, s. 112.313(2), (4), and (6). Reference is also made to s. 112.311(2) and (4), F. S., relative to government's not being unduly handicapped by ethical constraints in attracting qualified citizens to government service.

However, when a measure being considered by the authority affects the airline which employs the subject authority member, he is faced with a voting conflict under terms of s. 112.3143, F. S. 1977, in that he has a private interest in a measure which inures to the gain of a principal by whom he is retained, his employer. In such instances he may vote, but he is required to file a memorandum of voting conflict. It is recognized that by the nature of the authority's responsibilities, the subject authority member will be forced to consider a number of measures which are directly airline-related, thus seemingly requiring the filing of several memoranda of voting conflict at each meeting. When the public and the members of the authority are fully aware of the subject member's private employment with the airline, to require him to file more than one memorandum of voting conflict would place an unreasonable and illogical burden upon him. Accordingly, the subject airport authority member need not disclose his employment with an airline which serves that airport each time he votes upon a measure affecting that airline, so long as he previously has made such disclosure and the public and other members of the authority are fully aware of his employment.

QUESTIONS:

1. Does a prohibited conflict of interest exist where a member of an airport authority is employed as a pilot by an airline serving that airport?

2. Does s. 112.3143, F. S., require a member of an airport authority to disclose his employment with an airline which serves that airport each time he votes upon a measure affecting that airline, in view of the fact that he has previously disclosed his employment?

Question 1 is answered in the negative.

In your letter of inquiry you advise that ____ is an elected member and Chairman of the ____ Airport Authority and that he is employed as a pilot for one of the two major airlines which serve the airport operated by the authority. In addition, you advise that commercial carriers serving the airport pay landing fees as well as rent for space within the terminal building to serve the general public. These landing fees and rents are set by the authority for all carriers, and, you advise, there is no discrimination among carriers in this respect.

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 . . . ; 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. 1977.]

This provision prohibits a public officer from being employed by a business entity which is doing business with or is regulated by his agency. Unquestionably, the airline which employs the subject authority member is doing business with and is regulated by his agency, the authority, by leasing space within the terminal and by paying the landing fees.

However, in construing the Code of Ethics we must also consider another provision, which states:

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 duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, F. S. 1977.]

The above-quoted provision makes it clear that the Code of Ethics is not intended to be construed so as to prohibit a public employee from holding private interests which do not interfere with the full and faithful discharge of his duties; in effect, this section imposes a "rule of reason" upon the application of the Code of Ethics to any particular set of circumstances.

Upon close examination of the subject officer's situation, we are unable to say that his interests as an airline pilot interfere with the full and faithful discharge of his responsibilities as a member of the authority under this section or that they create such a continuing or frequently recurring conflict with the performance of his public duties as would be prohibited under s. 112.313(7)(a). The term "conflict of interest" is defined in the Code of Ethics to mean

a situation in which regard for a private interest tends to lead to disregard of a public duty or interest. [Section 112.312(6), F. S. 1977.]

Naturally, to the extent that the subject officer's private interests coincide with the interests of the airline which employs him, they will tend to clash with his responsibilities to the public. However, we do not perceive that his private interests necessarily are the same as those of the airline.

In this regard, we first note that the subject officer is one of approximately 4,000 pilots who fly for the airline, as you have advised, and that many thousands of other persons also are employed by this company. As a pilot, he is not employed in a management capacity nor in a capacity in which he is responsible for the airline's transactions with the airport or the airport authority. Thus, his position is similar to that of most persons who are employed within any extremely large company who do not have management responsibilities.

Secondly, we are of the view that the subject officer is sufficiently insulated from any pressure which his employer might bring to bear upon him in order to influence his official decisions. As you have advised, he is a member of the Airline Pilots Association, a union for professional airline pilots. As such, his private interests naturally will conflict with those of the company management to an extent. But, as he has advised, the terms and conditions of his employment, together with appropriate grievance procedures, are set forth in his contract, thus limiting the possibility of undue influence or other unfair treatment by his employer.

While, as you have advised in a telephone conversation with our staff, there is nothing in the subject authority member's contract which would prohibit the airline from rewarding him for official decisions favorable to the airline, we feel that finding a prohibited conflict of interest on this ground would go too far toward creating a presumption of unethical behavior on the part of elected officials in this state. Other sections of the Code of Ethics have been enacted for the purpose of prohibiting such conduct. See s. 112.313(2) and (4), prohibiting the acceptance of gifts or compensation intended to influence official action, and s. 112.313(6), prohibiting the misuse of public position.

On the whole, the subject officer's private interests as an airline pilot are too remote from those of his employer for us to find that regard for those private interests tends to lead to disregard of his public duties or interests. The alternative would be to find that the Code of Ethics requires him either to resign from the authority or from his employment. However, as the Legislature has observed:

It is also essential that government attract those citizens best qualified to serve. Thus, the law against conflict of interest must be so designed as not to impede unreasonably or unnecessarily the recruitment and retention by government of those best qualified to serve. Public officials should not be denied the opportunity, available to all other citizens, to acquire and retain private economic interests except when conflicts with the responsibility of such officials to the public cannot be avoided.

It is the intent of this act to implement these objectives of protecting the integrity of government and of facilitating the recruitment and retention of qualified personnel by prescribing restrictions against conflicts of interest without creating unnecessary barriers to public service. [Section 112.311(2) and (4), F. S. 1977.]

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit the subject airport authority member from being employed as a pilot by an airline which serves that airport.

Question 2 is answered in the negative.

Section 112.3143, F. S. 1977, provides:

Voting conflict. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.

Under this provision, the subject authority member should examine each measure coming before the authority to determine whether he has a personal, private, or professional interest in the measure and whether it would inure to his special private gain or the special gain of any principal by whom he is retained. If it does, then he may vote, but he must file a memorandum of voting conflict.

Where the measure being considered affects the airline which employs the subject authority member, we are of the opinion that he has a private interest in the measure insofar as it affects his employer. While this interest is not sufficient to present a conflict which would disqualify him from membership on the authority, as we advised above in response to your first question, we recognize that a public officer does have a private interest in any measure which affects his employer.

In our view, a measure which inures to the special gain of one's employer "inures to the special gain of any principal by whom he is retained," under s. 112.3143, above. Although that section speaks in terms of a "principal,"

[a] master [employer] is a species of principal, and a servant [employee] a species of agent. As a result, the words "servant" and "agent" are often used interchangeably by the courts, and indeed, an agent employed to make contracts might also, with respect to some of his duties and activities, be a servant. [53 Am. Jur.2d Master and Servant s. 3, p. 84 (1970).]

While we recognize that the terms "principal" and "employer" or "master" are not wholly synonymous, for the purpose of determining whether one has a voting conflict under s. 112.3143, we fail to see any material distinction between the terms.

Whether a measure before the authority would inure to the gain of a principal is a matter of determining whether the interest of the principal is such that the principal would stand to gain or lose as a direct result of the authority's decision. See CEO 76-24, question 3. Thus, a measure proposing the increase of landing fees, for example, would inure to the gain of the airline which employs the subject authority member because the airline would stand to lose as a result of the passage of the measure.

The final point which the subject authority member must consider in determining the applicability of s. 112.3143 to a measure affecting his employer is whether that measure would inure to the special gain of that employer. We have previously advised, in CEO 77-129, that this question turns in part on the size of the class of persons or entities standing to benefit from the measure. Where that class is large, a special gain will result only if there are circumstances unique to the officer or principal, i.e., under which he stands to gain more than the other members of the class. Where that class is extremely small, the possibility of special gain is much more likely. Here, we are of the opinion that a measure benefiting only the two major commercial airlines, for example, would inure to the special gain of both.

However, we recognize that by the nature of the authority's responsibilities, the subject member will be forced to consider a number of measures which are directly airline-related. This likely would require the filing of several memoranda of voting conflict at each meeting. Where the public and the members of the authority are fully aware of the member's private employment with the airline, we are persuaded that to require the subject authority member to file more than one memorandum of voting conflict would place an unreasonable and illogical burden upon him. In this regard, we note that we have recently dismissed a complaint against a city commissioner under substantially similar circumstances. In re Marlin Roberts, Complaint No. 77-21 (November 14, 1977).

Accordingly, we find that the subject airport authority member need not disclose his employment with an airline which serves that airport each time he votes upon a measure affecting that airline, so long as he has previously made such a disclosure and the public and other members of the authority are fully aware of his employment.