CEO 95-2 -- January 30, 1995
CONFLICT OF INTEREST; VOTING CONFLICTS
CITY COMMISSIONER SERVING ON TRANSPORTATION MPO
AND OWNING CORPORATION CONTRACTING WITH COMMUNITY
TRANSPORTATION COORDINATOR AS PRIVATE TRANSPORTATION
TO: Mary A. Marshall, Alachua County Attorney (Gainesville)
Section 112.313(7)(a), Florida Statutes, does not prohibit the corporation of a city commissioner who also serves as a member of a metropolitan transportation planning organization from contracting with the community transportation coordinator to serve as a private transportation operator. The commissioner's corporation would neither be doing business with nor regulated by either the city or the MPO, and while the transportation coordinator is doing business with the City and with the State Transportation Disadvantaged Commission, the commissioner's private interests do not impermissibly overlap with his public duties as a member of the city commission and the MPO. However, if the Commissioner were appointed by the MPO to the Coordinating Board, a conflict could exist under the second part of Section 112.313(7)(a) unless the MPO voted to waive the conflict pursuant to Section 112.313(12), Florida Statutes.
Although the commissioner may have occasion to vote on matters which affect the community transportation coordinator as a member of both the city commission and the MPO, Section 112.3143(3), Florida Statutes, would only require his abstention on those votes which inure to his special private gain or loss or to the private gain or loss of his corporation.
Does Section 112.313(7)(a) prohibit a City Commissioner who also serves as a member of a Metropolitan Transportation Planning Organization from owning a corporation which would provide transportation operator services to a company which serves as the community transportation coordinator under a State contract with the State Transportation Disadvantaged Commission, and which also has a service agreement with the City?
Under the circumstances presented, your question is answered in the negative.
In your letter of inquiry, you advise that you serve as counsel to the Metropolitan Transportation Planning Organization for the Gainesville Urbanized Area (MPO) and seek this opinion on behalf of Gainesville City Commissioner and MPO member Ed Jennings. We further understand that the Gainesville Urbanized Area MPO is composed of all five members of the Gainesville City Commission and all five members of the Alachua County Commission.
By way of extensive background, we are advised that one aspect of the MPO's duties includes transportation for the disadvantaged. Section 427.011, et seq., Florida Statutes, establishes the Florida Commission for the Transportation Disadvantaged ("State Commission"), and Chapter 41-2, Florida Administrative Code, further implements this statutory scheme. These statutes and rules prescribe specific duties for the MPO's with respect to providing transportation for disadvantaged individuals and, under State law, the MPO consults with the local Coordinating Board to recommend a single community transportation coordinator for that particular MPO region. The State Commission approves the appointment of all community transportation coordinators and reviews, approves, and enters into memorandums of agreement with the appointed transportation coordinators for the various geographic areas. We further are advised that pursuant to Rule 41-2.008, F.A.C., these memorandums of agreement are considered State contracts recognizing the community transportation coordinators as State contract vendors for the designated service area.
You relate that Section 427.0157, F.S., provides for the establishment of "Coordinating Boards," that membership on the Coordinating Boards is established by Commission rule, and that the members of the Coordinating Board are appointed by the MPO. Although the MPO must appoint one elected official to serve as chairperson of the Coordinating Board, the City Commissioner on whose behalf this opinion is sought does not serve as the appointed chairperson of the Coordinating Board. Further, you relate that the general purpose of the Coordinating Board is to identify local service needs and to provide advice, direction, and information to the local community transportation coordinator. The local Coordinating Boards are generally recognized as advisory bodies to the State Commission for their particular service areas, and they annually evaluate the performance of community transportation coordinators based upon evaluation criteria approved by the State Commission. Although a copy of the Coordinating Board's evaluation is submitted to the area MPO, its recommendation or termination of a community transportation coordinator is subject to the approval of the State Commission.
A community transportation coordinator is required to work in cooperation with the Coordinating Board to develop, negotiate, implement, and monitor a memorandum of agreement, which includes a service plan, for submittal to the State Commission and is authorized to develop and enter into contracts with transportation operators. You advise that State regulations provide that selection of agencies as transportation operators may be negotiated without competitive bid upon determination by the MPO that it is in the best interest of the transportation disadvantaged. State regulations also provide that, where cost effective and efficient, a community transportation coordinator should subcontract or broker transportation services to transportation operators. The local Coordinating Board is authorized to recommend approval or disapproval of such contracts to the community transportation coordinator and must provide the basis for its recommendation. The coordinator can either accept or reject the recommendation after providing written justification for its rejection.
You also relate that the organization known as "CTS," which has been serving as the County's community transportation coordinator since 1982, has coordination contracts with various organizations and entities. Services that cannot be addressed through the coordinating contracting process are secured through a request for proposal and/or qualifications. One of the entities with which CTS has had written service agreements is the City of Gainesville, which owns and operates a transportation system. Although that agreement has expired, the City and CTS currently are negotiating the provisions of a new service agreement and the City is presently providing transportation operator services. You also advise that, in the past, the City and CTS had a vehicle lease agreement whereby the City leased two mini-buses from CTS for use by the City for transportation operator services; however, the vehicle lease agreement has expired, and renewal is not anticipated.
With this background as a predicate, you first question whether a corporation owned by the Commissioner would be prohibited from becoming a private transportation operator under contract with CTS.
Section 112.313(7)(a), Florida Statutes, states:
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), Florida Statutes (1993).]
The first part of Section 112.313(7)(a) prohibits a public officer from having a contractual relationship with a business entity or agency which is doing business with or regulated by his agency. The second part of Section 112.313(7)(a) prohibits a public officer from having a 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.
First, we note that the Commissioner's "agencies" for purposes of the Code of Ethics would be both the Gainesville City Commission and the MPO. If the Commissioner's corporation contracts with CTS to provide transportation operator services, he would have a contractual or employment relationship with his own corporation, rather than with CTS. See CEO 93-13 and the opinions cited therein. The question then would be whether his corporation would be doing business with or regulated by either the City Commission or the MPO, and there is no indication that it would. Therefore, the first part of Section 112.313(7)(a) would not be violated were the City Commissioner, through his corporation, to contract with CTS.
Under the second part of Section 112.313(7)(a), we do not see how the Commissioner's relationship with his corporation and that corporation's contract with CTS would create a continuing or frequently recurring conflict. First, CTS's contract to serve as community transportation coordinator is with the State Transportation Disadvantaged Commission, not with the MPO. Although the Coordinating Board (whose members are appointed by the MPO and do not include the Commissioner) annually reviews CTS's performance, its recommendations in that regard are subject to the approval of the State Commission, not the MPO. Therefore, we do not see any direct overlap between the Commissioner's public duties as a member of the MPO and his private interest in providing transportation operator services to CTS. With regard to the relationship between CTS and the City of Gainesville, there is no indication that the Commissioner's relationship with his corporation and that corporation's interest in doing business with CTS creates an impermissible overlap between the Commissioner's private interests and the performance of his public duties, or impedes the full and faithful discharge of his public duties. Because we do not view the situation as creating a prohibited conflict, we do not believe that it is necessary to address your reference to Section 112.313(15), Florida Statutes, which creates an additional exemption to the prohibition of Section 112.313(7)(a) for elected public officers holding certain employment relationships with tax-exempt organizations. Thus, in our view, the situation described does not create a conflict of interest prohibited by the second part of Section 112.313(7)(a).
You have also asked whether the Commissioner should decline appointment to the Coordinating Board. Although it does not appear that the Coordinating Board "regulates" CTS or does business with it, we do view the situation as creating a potential conflict under the second part of Section 112.313(7)(a), because the Coordinating Board is the entity which more closely oversees the actions of the community transportation coordinator and the entities with which it enters into service agreements. Therefore, it could be perceived as a continuing conflict or an impediment to the full and faithful discharge of public duties if the Commissioner served on the Coordinating Board, because he would be in a position to evaluate CTS while his company is doing business with CTS and to participate in the service plan developed by the Coordinating Board and the transportation coordinator, which could expand those services provided by operators such as the Commissioner's. See CEO 91-26. However, as we noted in that opinion, Section 112.313(12) contains an exemption to the provisions of Section 112.313(7) for persons serving on advisory boards. If the MPO, which appoints persons to the Coordinating Board, were to vote by two-thirds majority to waive the Commissioner's conflict, then the Commissioner could serve on the Coordinating Board while contracting, through his corporation, with CTS.
Accordingly, we find no conflict under Section 112.313(7)(a), Florida Statutes, where the subject City Commissioner and MPO member serves through a corporation as a transportation operator to the community transportation coordinator, where the community transportation coordinator contracts with the State to serve as the transportation coordinator, and where the City also contracts with the transportation coordinator to serve as a transportation operator. Although a conflict could exist if the Commissioner were appointed to the Coordinating Board, the MPO may vote to waive that conflict pursuant to Section 112.313(12), Florida Statutes.
Does Section 112.3143(3)(a) prohibit a City Commissioner who also serves as a member of a Metropolitan Transportation Planning Organization from voting on matters concerning the community transportation coordinator, where the Commissioner's corporation contracts with the transportation coordinator to provide transportation operator services?
Your question is answered below.
Section 112.3143(3), Florida Statutes, 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 or loss; which he knows would inure to the special private gain or loss of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(3); or which he knows would inure to the special private gain or loss 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. [Section 112.3143(3)(a), Florida Statutes, as amended by Ch. 94-277, L.O.F.]
Section 112.3143(3) prohibits local public officers from voting in certain situations, requires that they disclose the nature of their interest prior to the vote being taken and, also, requires that they file a memorandum of voting conflict within 15 days after the vote occurs.
Your question is two-fold. First, you ask whether the Commissioner, when sitting on the MPO, would be required to abstain from voting on matters concerning CTS and/or the Coordinating Board. You then ask whether he, while sitting on the City Commission, would be required to abstain from voting on matters that concern CTS that come before the City Commission. Although you have not provided specific details about these potential votes, we can advise you (and the Commissioner) that he would not be required, under Section 112.3143(3), to abstain from voting on every matter which involves CTS that comes before either the MPO or the City Commission. Section 112.3143(3) prohibits a local public officer from voting on matters which inure to his special private gain or loss or to the special private gain or loss of a principal by whom he is retained. Here, CTS is not the Commissioner's principal. However, if the result of the vote extended or terminated CTS's relationship with either the City or the MPO, and if the Commissioner's corporation and its relationship with CTS would be affected by that vote, then the Commissioner would be required to abstain from voting on the matter and make the required disclosures. See CEO 84-108. However, the Commissioner may wish to seek additional guidance on any particular vote that involves CTS and the City Commission, or CTS and the MPO.
Accordingly, we find that the Commissioner would not be required to abstain from voting on every measure involving the community transportation coordinator that comes before either the City Commission or the MPO. Only those votes that would inure to the special private gain or loss of the Commissioner or his corporation would require adherence to the mandates of Section 112.3143(3), Florida Statutes.
ORDERED by the State of Florida Commission on Ethics meeting in public session on January 26, 1995, and RENDERED this _____ day of January, 1995.
R. Terry Rigsby