CEO 79-13 -- March 22, 1979

CONFLICT OF INTEREST

PORT AUTHORITY MEMBER SALESMAN FOR COMPANY SELLING PRODUCT TO BUSINESSES DOING BUSINESS WITH OR SUBJECT TO REGULATION OF AUTHORITY

To: Linwood Cabot, Port Attorney, Port Everglades Authority, Port Everglades

Prepared by: Phil Claypool

SUMMARY:

The Code of Ethics for Public Officers and Employees prohibits a public officer from being employed by or having a contractual relationship with a business entity which is either doing business with or is subject to the regulation of his public agency. Section 112.313(7)(a), F. S. 1977. Thus, this provision would prohibit a port authority member from being employed by a tenant or franchiseholder of the authority. However, the provision does not go so far as to prohibit his employment by a company which does business with business entities which, in turn, do business with or are regulated by the port authority. Accordingly, the Code of Ethics does not prohibit a port authority member from being employed as a salesman for a company which sells products to tenants and a franchiseholder of the authority, to a sheriff's department which has contracted with the authority to provide security at the port, or to a nonprofit organization created to provide equipment and services to deal with oil spills at the port. There is no provision of the Code of Ethics which would prohibit the employment of the port authority member by a company which has contacted an employee of the authority regarding his outside employment with that company. However, the subject employee is entitled to seek the commission's opinion relative to such outside employment.

QUESTIONS:

1. Does a prohibited conflict of interest exist when a port authority member is employed as a salesman for a company which has sold products to tenants and a franchiseholder of the authority?

2. Does a prohibited conflict of interest exist when a port authority member is employed by a company which sells products to a county sheriff's department which has contracted with the port authority to provide security at the port?

3. Does a prohibited conflict of interest exist when a company which employs a port authority member as a salesman has sold a product to a nonprofit organization created to provide equipment and services to deal with oil spills at the port?

4. Does a prohibited conflict of interest exist when a company which employs a port authority member has discussed with an employee of the port authority the possibility of his outside employment with that company?

Question 1 is answered in the negative.

In your letter of inquiry you advise that Mr. Jack C. Behringer is an elected port commissioner of the Port Everglades Authority who is employed as a salesman for a company which distributes various petroleum products. We are further advised that Mr. Behringer is neither an officer, stockholder, nor director of this company. We also are advised that in the past his company has sold a diesel additive product to two companies which lease land owned by the port authority. In addition, the company has sold this product to another company which operates a tugboat service at the port under a nonexclusive franchise issued by the port authority and has had discussions with another tenant of the port authority regarding that tenant's potential representation of the authority member's company outside the country.

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, or having a contractual relationship with, a business entity which is either doing business with, or is subject to the regulation of, his public agency. Thus, this provision would prohibit the subject authority member from being employed by a tenant or franchiseholder of the authority. However, the provision does not go so far as to prohibit his employment by a company which does business with business entities which, in turn, do business with, or are regulated by, the port authority. See CEO 79-1.

Accordingly, we find that no prohibited conflict of interest exists when a business which employs the subject port authority member does business with tenants or a franchiseholder of the port authority. However, we feel obligated to point out that were the subject authority member personally, rather than the corporation which employs him, to sell a product to either tenants or franchiseholders of the authority, he would have a contractual relationship with business entities which are either subject to the regulation of, or are doing business with, his agency, in violation of s. 112.313(7)(a), F. S. As a result, under the circumstances you have described, we feel that at the very least there would be an appearance of a conflict of interest were the subject authority member, on behalf of the corporation which employs him, to personally approach or make sales to businesses which do business with, or are subject to, the regulation of the port authority.

Question 2 also is answered in the negative.

In your letter of inquiry we are advised that the Broward County Sheriff's Department has purchased various products from the company which employs the subject port authority member as a salesman. In addition, we are advised that, for the past several years, the authority has had an agreement with the sheriff's office under which the sheriff provides assistance to the port security department in providing security at the port. Under the arrangement, the authority simply reimburses the sheriff's office for its costs in providing the requested services.

We find that the rationale expressed in our response to question 1, is equally applicable to this question. Additionally, it appears that the sheriff's department in this case is not "doing business" with the port authority, as we have advised previously that intergovernmental contracts for services of this type do not constitute doing business within the contemplation of s. 112.313(7). See CEO 76-2, question 9.

Question 3 is answered in the negative.

In your letter of inquiry we are advised that the Port Everglades Spill Committee is a nonprofit organization composed of the members of certain oil-related industries located at Port Everglades in order to provide equipment and services to deal with oil spills at the port. We are also advised that this committee has purchased a quantity of an absorbent product from the company which employs the subject authority member.

As it appears that the Port Everglades Spill Committee constitutes a "business entity" as that term is defined in s. 112.312(3), F. S., we find that the rationale expressed in response to question 1 also applies to this situation.

As to question 4, in your letter of inquiry we are advised that the company which employs the subject port authority member has discussed with an employee of the security department at the port authority his possible representation of the company. To date, that employee has not worked for the company or made any sale.

We find no provision of the Code of Ethics which would prohibit the employment of the subject port authority member by a company which has contacted an employee of the port authority regarding his outside employment with that company. We are without authority in this opinion to address the application of the Code of Ethics to the employee of the port authority referenced in this question. Section 112.322(3), F. S. However, under that section we are authorized to respond to a request for an advisory opinion from that employee concerning the application of the Code of Ethics to himself.