CEO 00-14 -- August 29, 2000

 

CONFLICT OF INTEREST

 

COUNTY COMMISSIONER EMPLOYEE OF PHOSPHATE COMPANY

 

To:       Mr. Robert M. King, Hamilton County Commission candidate (Jasper)

 

SUMMARY:

 

A county commissioner is not prohibited from being employed by a phosphate mining company with operations in the county.  Under Section 112.313(7)(a), Florida Statutes, the company is not "subject to the regulation of" the county commission, and no frequently recurring conflict or impediment to the full and faithful discharge of public duty is present.  The commissioner must comply with the requirements of the voting conflicts law [Section 112.3143(3)(a), Florida Statutes] regarding measures inuring to the special private gain or loss of  the company.  CEO's 92-2 and 94-18 are referenced.

 

QUESTION:

 

Would a prohibited conflict of interest be created were you, an employee of a phosphate mining company located in a county, to become a member of the county commission?

 

Your question is answered in the negative.

 

By your letter of inquiry and a second letter from you to our staff, we are advised that you are a candidate for a seat on the Hamilton County Commission and that you are (and have been for over twenty years) a wage and hour employee of a phosphate mining company with operations in the County.  Further, you advise that you are not a part of the company's management and that you are a worker in a company plant that makes a feed supplement.  In addition, you advise that if you are elected and take office you will abstain from voting and fully comply with the voting conflicts law regarding any measures affecting the company, that the County has a phosphate mining ordinance that affects the company, but that every business and person in the County is to some extent and in one form or another affected by County ordinances.  In view of the foregoing, you inquire as to whether Section 112.313(7)(a), Florida Statutes, bars your holding office as a County Commissioner concurrent with your employment with the company.[1]

Section 112.313(7)(a) 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 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.

 

The first part of the statute would prohibit your employment with the company while serving as a County Commissioner, if the company is subject to the regulation of, or is doing business with, the County Commission (your public agency).  As your inquiry does not indicate that the company is doing business with the County Commission, our analysis herein under the first part of the statute is confined to whether the company is "subject to the regulation of" the County Commission.

In CEO 92-2, our opinion issued to a Polk County Commissioner who desired to purchase land from (have contractual relationships with) phosphate companies, we found that the Polk County Commission's role under its mining ordinance did not constitute "regulation," and thus found that the first part of the statute would not be violated were the Commissioner (individually or with others) to purchase land from the companies.  Similarly, in responding to your instant request, we adhere to our precedent and find that the first part of the statute would not be violated by your simultaneously serving as a County Commissioner and holding employment with the company, in that the company would not be "regulated" by the County Commission.  Your situation is strikingly similar to that in CEO 92-2, in which  phosphate companies owned many thousands of acres of land in Polk County, in which their mining operations were subject to Polk County ordinance (under which the County Commission decided whether to grant or suspend mine operation permits and decided whether to grant waivers or variances from requirements for mining operations), in which the matters addressed by and of concern to the Polk County Commission in its decisions included phosphate mining, debris mining, phosphate processing operations, disposition of waste clays, setback and buffer requirements for mining operations, drainage, erosion prevention, and reclamation of mined areas.[2]  In CEO 92-2, in explaining the intent of the Legislature that ordinances and other controls on land use or similar subjects not constitute "regulation," we quoted with approval from In re John Zerweck, Commission Complaint No. 79-74, 2 FALR 1097A, as follows:

 

The first portion of Sec. 112.313(7)(a), F.S., concerning employment with a business entity 'subject to the regulation of' the public body of which the public official is a member, does not apply to the factual circumstances presented.

While the City Commission has enacted numerous, detailed ordinances which specify the manner and mode of land development and building construction within the City of Margate, the active enforcement of these ordinances through review of plans, permitting and inspections has been delegated to the various boards and departments of the City.  These agencies directly regulate construction and development within the City.  Therefore, given the structure of this City government, any regulation by the City Commission is indirect at most, and not within the contemplation of the term 'regulation' as used by the Legislature in Sec. 112.313(7)(a).  Clearly, the City Commission has subjected all residents and businesses of the City to various controls and restrictions.  But it is equally clear that if those controls and restrictions, in themselves constitute 'regulation' by the City Commission, then no City Commissioner could work or reside in the City.  The Legislature did not intend such a result when it enacted the Code of Ethics for Public Officers and Employees . . . .

 

See also our Public Report in In re Lewis Vaughn, Complaint No. 99-163, our very recent decision in which we found that there was no probable cause to believe a member of the Hamilton County Commission had violated Section 112.313(7)(a) by virtue of his holding a contractual relationship with the company.  In Vaughn, we adopted the recommendation of our Advocate and found that the reasoning of CEO 92-2 applied to the Hamilton County situation vis-a-vis there being no "regulation" of the company by the County Commission.

We also find that the second part of Section 112.313(7)(a) would not be violated were you to become a County Commissioner while employed by the company.  While a conflict under the second part of the statute can be based on any employment or contractual relationship, whether or not the employment or contractual relationship is with a business entity that is "regulated" by one's public agency, if the employment/contractual relationship creates a continuing or frequently recurring conflict between a public officer's private interests and the performance of his public duties or impedes the full and faithful discharge of his public duties, we have not found such a conflict to exist in a county commissioner/phosphate mining company situation.  See CEO 92-2 and Vaughn.  Additionally, while compliance with the voting conflicts law contained in Section 112.3143(3)(a) is not completely prophylactic regarding conflicts under the second part of Section 112.313(7)(a), it is clear that the Legislature, by the very enactment of Section 112.3143(3)(a), contemplated that not all situations in which one's public agency has responsibility regarding one's private employer would be absolutely disqualifying as to the holding of office.  See CEO 94-18, our voting conflict opinion regarding members of the Taylor County Commission employed by (or having other economic ties to) a paper mill which was the largest employer in the County.

Accordingly, we find that a prohibited conflict of interest would not be created were you to become a member of the County Commission while employed by the company.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on August 24, 2000 and RENDERED this 29th day of August.

 

 

__________________________________

Howard Marks, Chair


[1]It is our view, and you recognize, that your employment with the company would require your compliance with the voting conflicts law [Section 112.3143(3)(a), Florida Statutes] regarding any County Commission measure which would inure to the special private gain or loss of the company (your employer/principal).  See CE Form 8B (Memorandum of Voting Conflict for County, Municipal, and other Local Public Officers).  Section 112.3143(3)(a) provides:

 

No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she 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 the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her 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.

[2]A comparison of the phosphate ordinances of Hamilton and Polk Counties reveals that they are virtually identical.