CEO 97-5 -- January 23, 1997
CONFLICT OF INTEREST
COUNTY COMMISSIONER EMPLOYEE OF TAX-EXEMPT
ORGANIZATION DOING BUSINESS WITH COUNTY
To: Ms. Sylvia Poitier, Broward County Commissioner (Fort Lauderdale)
No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a county commissioner to be employed by a tax-exempt organization that is a lessee of county-owned property. Although the commissioner would hold employment with a business entity doing business with her public agency, her employment would come within the exemption regarding 501(c)(3) organizations contained in Section 112.313(15), Florida Statutes. To the extent that it conflicts with the instant opinion, CEO 89-58 is superseded.
Would a prohibited conflict of interest be created were you, a county commissioner, to be employed by a tax-exempt organization that leases facilities and receives funding from the county?
Under the facts set forth herein, your question is answered in the negative.
By your letter of inquiry and additional written information provided to our staff by the County Attorney's Office, we are advised that you serve as a member of the Broward County Commission (hereinafter "Board"). In addition, we are advised that in 1993 the County entered into long-term leases with the Boys and Girls Clubs of Broward County (hereinafter "organization") [a tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code] concerning three sites at which the organization carries on youth recreation and advancement programs. At two sites, we are advised, the County owns the land and the buildings, and at one site the City of Lauderhill owns the land and the County owns the buildings.
Further, we are advised that the County approves through its annual budget operational monies for the three leased facilities, that you voted to approve the three leases in 1993, and that you voted to approve the County's annual budget in September 1996. In addition, we are advised that on December 3, 1996 the Board approved placing the organization on a matching grant list for $350,000, to be used for the organization's acquisition of property in the City of Deerfield Beach, and that you followed the requirements of Section 112.313(15)(b) and (c), Florida Statutes, in relation to the December 3 grant list placement of the organization.
In addition, we are advised that you seek to become employed by the organization, that your employment responsibility would be to build and operate a new organization facility in Deerfield Beach, that the new facility would have no relationship with the County other than the receipt of grant funds, and that you would not be paid from County funds because County funds are allocated specifically for operation of the three leased facilities and for land acquisition for the desired Deerfield Beach facility.
The Code of Ethics for Public Officers and Employees provides in 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 or she 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 or her private interests and the performance of his or her public duties, or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.]
Absent the applicability of an exemption, Section 112.313(7)(a) would prohibit your employment with the organization, inasmuch as the organization is doing business with the County by virtue of the lease agreements. Further, it is evident from your inquiry that the exemption contained in Section 112.313(15), Florida Statutes, is the only exemption that is arguably applicable to your proposed employment. Section 112.313(15) provides:
ADDITIONAL EXEMPTION.--No elected public officer shall be held in violation of subsection (7) if the officer maintains an employment relationship with an entity which is currently a tax-exempt organization under s. 501(C) of the Internal Revenue Code and which contracts with or otherwise enters into a business relationship with the officer's agency and:
(a) The officer's employment is not directly or indirectly compensated as a result of such contract or business relationship;
(b) The officer has in no way participated in the agency's decision to contract or to enter into the business relationship with his or her employer, whether by participating in discussion at the meeting, by communicating with officers or employees of the agency, or otherwise; and
(c) The officer abstains from voting on any matter which may come before the agency involving the officer's employer, publicly states to the assembly the nature of the officer's interest in the matter from which he or she is abstaining, and files a written memorandum as provided in s. 112.3143.
In CEO 89-58, we found that the exemption contained in Section 112.313(15) would not apply to negate a conflict under Section 112.313(7)(a) where a member of the Broward County School Board sought to be employed by a 501(C) organization that was doing business with the School Board. In that opinion, we reasoned that because the member voted to renew the School Board's contract with the organization that wished to employ her, the requirements of the exemption had not been met--notwithstanding that the vote occurred prior to the organization's offer of employment to the member. Thus, were we to adhere to our interpretation of the exemption manifested in CEO 89-58 (that the exemption does not apply when the public official has participated in or voted on matters involving the private entity, regardless of whether the vote/participation occurred prior to the official's employment with the entity), we would find that the exemption also is not applicable to your situation, inasmuch as you voted in 1993 to approve the organization's leases with the County and you voted in September 1996 to approve the County's annual budget which included funding for the organization, notwithstanding your lack of actual employment with the organization at the time of the votes.
However, upon further consideration, we are persuaded that the better view of the language of the exemption is one which recognizes that any votes or participation which would render the exemption inapplicable must concern the public officer's employer; and at the time the organization contracted with the County (lease agreements) and at the time you voted on the County budget (which involved the organization) the organization was not your employer.
Nevertheless, we note that this opinion does not deal with any issues under Sections 112.313(2) and 112.313(4), Florida Statutes, and caution that you, as well as all other public officials, should be careful not to run afoul of these statutes in connection with offers of employment or other things of value. These statutes provide:
SOLICITATION OR ACCEPTANCE OF GIFTS.--No public officer, employee of an agency, local government attorney, or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of the public officer, employee, local government attorney, or candidate would be influenced thereby. [Section 112.313(2), Florida Statutes.]
UNAUTHORIZED COMPENSATION.--No public officer, employee of an agency, or local government attorney or his or her spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer, employee, or local government attorney knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer, employee, or local government attorney was expected to participate in his or her official capacity. [Section 112.313(4), Florida Statutes.]
Accordingly, under the circumstances set forth herein, we find that a prohibited conflict of interest would not be created under Section 112.313(7)(a), Florida Statutes, were you, a Broward County Commissioner, to be employed by the Boys and Girls Clubs of Broward County. To the extent that CEO 89-58 conflicts with our findings herein, it is superseded.
ORDERED by the State of Florida Commission on Ethics meeting in public session on January 23, 1997, and RENDERED this 28th day of January, 1997.
Mary Alice Phelan
We are advised that the leases were negotiated between the County and the organization (two leases) and between the City of Lauderhill and the organization (one lease), that the City site is a full recreational building, and that the County sites are a gym-type facility and a "Carver Ranches-Recreational facility."
In addition to programs at the three publicly-owned sites, we are advised that the organization operates ten other recreational/youth programs within the County.
The facts set forth in your inquiry do not indicate the applicability of the exemptions (advisory body exemption, sole source exemption, etc.) contained in Section 112.313(12), Florida Statutes.
Notwithstanding the lack of applicability of the 501(C) tax-exempt organization exemption in CEO 89-58, the situation in that opinion ultimately was not found to be conflicting, based upon the $500 or less exemption. However, that exemption [currently codified at Section 112.313(12)(f), Florida Statutes] would not appear to be applicable to your situation since the value of the leased facilities would most certainly exceed $500 per calendar year.