CEO 98-13 -- May 28, 1998
DOING BUSINESS WITH ONE' S AGENCY; CONFLICT OF INTEREST
COUNTY EMPLOYEE RENTING TO TENANT
RECEIVING RENTAL ASSISTANCE FROM COUNTY
To: Name Withheld At Person's Request (Tampa )
No prohibited conflict of interest is created when a county engineering division employee rents housing to a person who is eligible for emergency rental assistance from the county health and social services department. Even though rental assistance is paid directly to the county employee/landlord, he is not selling services to the county agency in violation of Section 112.313(3), Florida Statutes, and his landlord/tenant relationship does not constitute a contractual relationship with a business entity doing business with or regulated by his agency for purposes of Section 112.313(7)(a), Florida Statutes.
Would a prohibited conflict of interest be created where a county employee rents housing to a tenant eligible for rental assistance from the county, and where the county pays the rent directly to the employee/landlord?
Under the circumstances presented, your question is answered in the negative.
In your letter of inquiry, you relate that this opinion is sought on behalf of . . . , an engineer in the County's Engineering Division, who rents housing to an individual who qualifies for public assistance benefits, including rental assistance. You relate that the County's Health and Social Services Department administers a public assistance program designed to help indigent persons obtain medical and limited financial assistance on a short-term basis. Typically, where rent and utility payments are involved, it is the County' s policy to make payments directly to the landlord and utility company on behalf of the recipient to ensure that basic services are not interrupted.
In the case at hand, you relate that after the County employee's tenant began having difficulty making rental payments, he contacted the Health and Social Services Department to request its assistance on behalf of his tenant. He subsequently completed a landlord verification form which is used to establish a satisfactory payment amount and which also ensures that the tenant will not be evicted while payments are being made by the County. You further represent that the County employee has no involvement or control over the eligibility determination involving his tenant and that his Division is separate and apart from the County Department administering public assistance. Thus, you question whether a prohibited conflict of interest is created by these circumstances.
The applicable statutory provisions are contained in Sections 112.313(3) and 112.313(7)(a), Florida Statutes. They provide:
DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision of any agency thereof, if he or she is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business or when such offices are on property wholly or partially owned by the legislator. This subsection shall not affect or be construed to prohibit contracts entered into prior to:
(a) October 1, 1975.
(b) Qualification for elective office.
(c) Appointment to public office.
(d) Beginning public employment.
[Section 112.313(3), Florida Statutes (1997).]
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 (1997).]
Section 112.313(3) prohibits a public employee from acting in his private capacity to rent property to the political subdivision he serves. Section 112.313(7)(a) prohibits a public employee from having a contractual relationship with a business entity doing business with or regulated by his agency.
In CEO 80-93, the Commission examined a situation where a county commissioner received emergency rental assistance payments from the county on behalf of an indigent tenant, and the Commission concluded that Section 112.313(3) was not implicated because the commissioner was leasing property to his tenants, not to the county. The rationale of CEO 80-93 would also be applicable here. The County employee is not leasing property to the County; he is leasing property to his tenant. Nor are any goods or services being provided by the employee to the County. Therefore, Section 112.313(3), Florida Statutes, is not implicated by your inquiry.
Examining the facts as they relate to Section 112.313(7)(a), in CEO 80-93 we concluded that Section 112.313(7)(a) was not violated because the commissioner's contractual relationship was with his tenant, not the county, and the tenant was not a business entity for purposes of the statute. Nor was his receipt of emergency rental assistance payments directly from the county construed to create a contractual relationship with either the county finance department or the county welfare department. This rationale is appropriate here as well. The County employee's contractual relationship is with his tenant. Even if his acceptance of County rental assistance payments requires him to agree not to evict the tenant, we do not view that as creating a contractual relationship with an agency doing business with or regulated by the County Engineering Division, his agency. Nor is there any issue under the second part of the statute because neither he nor the Division he works for has any involvement in the decisions of the County Health and Social Services Department relating to his tenant. Therefore, Section 112.313(7)(a) would not be violated by the circumstances described.
Accordingly, we find that no prohibited conflict of interest would be created where a engineer with the County Engineering Division rents housing to a tenant who receives emergency rental assistance from the County Health and Social Services Department.
ORDERED by the State of Florida Commission on Ethics meeting in public session on May 28, 1998 and RENDERED this 2nd day of June, 1998.