CEO 76-15 -- January 16, 1976

CONFLICT OF INTEREST

CITY COMMISSIONER EMPLOYED BY BUSINESS SELLING TO THE CITY

To: Frank J. Rouse, City Attorney, Fort Meade

Prepared by: Gene Rhodes

SUMMARY:

Florida Statute s. 112.313(7)(1975) prohibits a local officer from holding private employment with a business entity which transacts business with the public agency in which he serves. The term "agency" is defined to include any local or municipal governmental entity and any department or division therein. See s. 112.312(2). Where a city manager is appointed by and is responsible directly to the city commission, their agencies are deemed to be one and the same, i.e., the city commission. Therefore, said city manager is prohibited from purchasing goods from a lumber company which employs a member of the city commission.

QUESTION:

Does a prohibited conflict of interest exist where a city manager purchases goods from a lumber company that employs a city commissioner?

Your question is answered in the affirmative.

Your letter of inquiry advises us that the city commissioner at issue is the manager of a local lumber yard which is the only outlet for many commodities in the City of Fort Meade. The commissioner's brother-in-law owns the lumber yard, and the commissioner has neither a proprietary nor a financial interest in the business. Rather, he is a salaried managerial employee. The city manager is the purchasing agent for the city and in this capacity occasionally purchases goods from the subject lumber company.

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 any 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, 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 clearly prohibits a public officer from holding employment with a business entity doing business with the public agency in which he serves. However, the term "agency" is defined in the Code of Ethics to include any local or municipal governmental entity and any department or division therein. See Fla. Stat. s. 112.312(1).

The question you have raised, therefore, turns on whether the city commission and the city manager's office constitute a single or, alternatively, two separate agencies. Your city charter states that the "City Commission shall act administratively by and through a City Manager." The city manager is appointed by the city commission and serves at their pleasure. He must submit to the city commission a monthly accounting of the city's affairs and he has entire charge of the city's business subject to the control of the city commission. Fort Meade City Charter, ss. 8, 9(a), (3) and (f).

Based on these facts, it is our view that the city commission and the city manager's office must be considered integral parts of the same agency within the meaning of s. 112.312(1). Accordingly, the subject city commissioner is prohibited from simultaneously holding employment with the lumber company at issue as long as that lumber company is doing business with his agency.