CEO 78-32 -- May 18, 1978

CONFLICT OF INTEREST

CITY EMPLOYEE SERVING ON CITY CHARTER REVIEW BOARD

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

Prepared by: Phil Claypool

SUMMARY:

A public officer is prohibited by s. 112.313(7)(a), F. S. 1977 from being employed by an agency which is subject to the regulation of his agency and from having any employment that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. This provision is not violated when a municipal employee serves on that municipality's charter review board because the municipal department by which he is employed is not subject to the regulation of the board, and, further, because no provisions of the charter pertain to departments of the city or to city employees so as to impede the discharge of the officer's duties as a member of the charter review board.

The Code of Ethics does not prohibit a member of a city's charter review board from becoming a city employee after the expiration of his term on the board. Although the municipality's charter expressly prohibits former elected city officials from holding any compensated appointive city office or employment for a period of one year after the expiration of the term of elective office, the Ethics Commission is without jurisdiction to interpret a city charter provision except insofar as it relates to the Code of Ethics, which contains no post officeholding restrictions.

QUESTIONS:

1. Does a prohibited conflict of interest exist where a water plant operator employed by a city also serves on the city's charter review board?

2. Does the Code of Ethics prohibit a member of a city's charter review board from becoming a city employee after the expiration of his term on the board?

Question 1 is answered in the negative.

Through your and ____ letters of inquiry, we are advised that he is employed by the City of ____ as a water plant operator, a nonsupervisory position involving responsibility for the operation of the water plant and for routine maintenance and servicing of equipment and machinery, according to his job description. We are also advised that ____ recently was elected to a 1-year term on the city charter review board. The charter review board is "an impartial and independent advisory board," consisting of seven members, with the responsibility for reviewing and making a continuous study of the city charter. Article VIII, ss. 8.01 and 8.06, Charter of ____. Proposals of the board to amend or revise the charter are submitted for approval or rejection by city electors at a referendum election. The board submits its proposals to the city clerk, who notifies the city council and provides its members with copies of the proposals. Then the city council directs the clerk or other city elections officer to hold the referendum election. Article VIII, s. 8.06, Charter of ____.

The Code of Ethics for Public Officers and Employees provides in part as follows:

EMPLOYEES HOLDING OFFICE. --

No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his employer while, at the same time, continuing as an employee of such employer. [Section 112.313(10)(a), F. S. 1977.]

This prohibition clearly does not apply to the situation you have described because the charter review board is not the governing board of the city.

The Code of Ethics further provides:

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 an agency which is subject to the regulation of his agency and also from having any employment that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. The two agencies involved here are the charter review board and the city utility department. Section 112.312(2), F. S. 1977.

In our view, the utility department is not subject to the regulation of the charter review board. ____ in a telephone conversation with our staff, advised that there are no provisions in the charter which pertain to any of the departments of the city. Because of this, and because any proposal of the review board must be approved by the electorate before it can have any effect, we do not perceive that the board regulates the utility department. ____ also advised that there are no provisions in the charter which relate to city employees, and that the one provision in the charter which previously established a representation program (grievance procedure) was removed from the charter by the city council and was passed as an ordinance, not subject to amendment by the review board. Under these circumstances, there appears to be nothing in the charter which could affect the subject city employee so directly and immediately as to present a continuing or frequently recurring conflict of interest so as to impede the full and faithful performance of his duties as a member of the charter review board.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit a person who is employed as a water plant operator by a city from serving on that city's charter review board.

Question 2 also is answered in the negative.

In your letter of inquiry you enclosed a copy of a provision of the Charter of ____ which provides as follows:

HOLDING OTHER OFFICE. -- No former elected City official shall hold any compensated appointive City office or employment until one (1) year after the expiration of the term for which he was elected. [Section 3.07(c), Charter of ____.]

As we are without jurisdiction to interpret a city charter provision except insofar as it relates to the Code of Ethics, and as the Code of Ethics contains no post officeholding restrictions, your question is answered accordingly in the negative.