CEO 94-22 -- June 2, 1994
CONFLICT OF INTEREST
CITY COMMISSION CANDIDATE EMPLOYED BY CORPORATION
CONTRACTING WITH LOCAL CHAPTER OF POLICE ORGANIZATION
To: Mr. Michael J. Suhoza, Candidate, Clearwater City Commission
No prohibited conflict of interest would be created were a city commissioner to be employed by a corporation contracting with a local police organization to provide fundraising services, as there is no indication that his employment with the corporation would create a frequently recurring conflict or impede the performance of his public duties as a city commissioner. The proscriptions contained in Sections 112.313(2), 112.313(6), and 112.3148(3), Florida Statutes, would be inapplicable to his situation so long as he did not use his public position to make solicitations for the client and did not personally benefit from any donations solicited. The voting conflict law, Section 112.3143(3), Florida Statutes, would not require his abstention on votes involving law enforcement matters or his employer's client, as long as neither he nor his employer stand to benefit directly from any measure under consideration. Referenced are CEO's 91-19, 85-21, and 84-108.
Does a prohibited conflict exist where you, a potential candidate for a City Commission, are employed by a corporation which contracts with a local police organization to provide fundraising services?
Your question is answered in the negative, under the circumstances presented.
In your letter of inquiry, you advise that you are considering seeking election to the City Commission for the City of Clearwater. You relate that you presently are employed by a multi-state fundraising enterprise which has contracted to perform fundraising activities for a local police organization. You question whether your employment with the corporation and your activities on behalf of its client, the police organization, would create a conflict of interest prohibited by the Code of Ethics for Public Officers and Employees.
The applicable provision of the Code of Ethics for Public Officers and Employees is Section 112.313(7)(a), Florida Statutes, which 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.
The first part of this statute prohibits a public officer from having an employment or contractual relationship with a business entity which is either doing business with, or regulated by, his agency. There is no indication that your employer is doing business with the City or subject to its regulation. Therefore, the first part of Section 112.313(7)(a) is inapplicable to your inquiry.
The second part of Section 112.313(7)(a) prohibits a public officer from having an employment or contractual relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or which impedes the full and faithful discharge of his public duties. In CEO 91-19, we advised a city commission candidate that the second part of Section 112.313(7)(a) could be violated because of his employment relationship with a company that acted as the local affiliate for a firm awarded a contract to administer the city's health insurance plan. There, the candidate's employer (and the candidate himself) dealt with the city and its employees as the third party administrator for the city. Essentially, the candidate's employer was juxtaposed between the city and the actual contractor, and that was viewed as presenting a continuing or frequently recurring conflict on the part of the candidate.
In your situation, your employment requires you to work closely with City police officers who are active in the organization contracting with your employer. While you may be confronted as a City Commissioner with issues involving City police officers as well as collective bargaining matters, there is nothing to indicate that these types of issues would come before the City Commission on a frequent basis. Therefore, we are of the view that your employment with the corporation would not create a conflict of interest under the second part of Section 112.313(7)(a).
Because your employment evidently involves soliciting donations on behalf of the client/police organization, you should be aware of several other provisions in the Code of Ethics and ensure that your solicitations on behalf of the police organization do not conflict with these precepts. First, Section 112.313(2), Florida Statutes, prohibits a public officer from soliciting anything of value to the recipient based upon any understanding that his vote or other official action would be influenced thereby. Section 112.313(6), Florida Statutes, prohibits a public officer from using or attempting to use his official position to secure a special privilege or benefit for himself or others, where his actions are undertaken with a wrongful intent and for the purpose of obtaining a benefit resulting from actions which are inconsistent with the proper performance of public duties. Finally, Section 112.3148(3), Florida Statutes, would prohibit you from soliciting any "gift" from a lobbyist who lobbies the City Commission or from the partner, firm, employer, or principal of such lobbyist, where the gift is for your personal benefit, for the benefit of another reporting individual, or for any member of the immediate family of a reporting individual. We are of the view that as long as your solicitations on behalf of the organization in no way refer to your public office and are not for your personal benefit, you would not run afoul of these referenced provisions.
Finally, we call to your attention the voting conflicts law, Section 112.3143(3), Florida Statutes, which states:
No county, municipal, or other local public officer shall vote in his official capacity upon any measure which would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization of subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, 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.
This statute requires a local public officer to abstain from voting in certain situations, including when the matter being voted upon inures to the special private gain of a principal by whom he is retained. A public officer also is required to file a memorandum of voting conflict after abstaining from any vote.
Your "principal" for purposes of Section 112.3143(3) would be your employer. See CEO 84-108. In that opinion, particularly Question 2, we opined that a town council member who was an officer and sole shareholder in a public relations firm which was doing business with a large corporation in the town was not required to abstain from every vote inuring to the special private gain of that corporation. See also CEO 85-21, where we advised that a public officer who was a travel agency employee that Section 112.3143(3) did not require his abstention on measures benefiting customers of the travel agency unless the public officer or his employer stood to benefit directly from the measure under consideration. Thus, you would not necessarily have to abstain from every vote involving police officers or their bargaining unit, your employer's client.
Accordingly, we find that no prohibited conflict of interest would be created were you to be elected to the office of City Commission while being employed by a corporation contracting with a local police organization to perform fundraising services.