CONFLICT OF INTEREST

APPLICATION OF THE UTILITY SERVICE EXEMPTION TO A PUBLIC OFFICER
WHO ALSO IS AN EMPLOYEE OF A TELECOMMUNICATIONS COMPANY

To: Name withheld (Lee County)

SUMMARY:

The "utilities service" exemption contained in Section 112.312(12)(c), Florida Statutes, will operate to negate a facial conflict of interest created under Section 112.313(7)(a), Florida Statutes, for a Fire District Commissioner who is employed by a provider of phone and internet services to the Fire District. Referenced are CEO 83-7, CEO 86-24, CEO 02-3 and CEO 19-12.

QUESTION:

Will a Fire District Commissioner have a conflicting employment or contractual relationship if he is employed by a business entity providing internet (broadband) and voice-over-internet services to the District?

This question is answered in the negative.

In your inquiry, you indicate that you represent the Iona McGregor Fire District ("the District"), and are requesting this opinion on behalf of one of the District's Commissioners ("the Commissioner"). You relate that the District currently has two Master Service Agreements ("MSAs") with a media and telecommunications company ("the company") for standard internet and voice-over-internet (VoIP)¹ services, which has been in place since February 2025. You indicated that there are also two additional temporary service agreements ("TSAs") for the same services for two fire stations that were severely damaged by hurricanes and associated flooding. However, you note that those TSAs will be cancelled soon because the reconstruction of the two hurricane-damaged fire stations has recently been completed. You note that the Commissioner who is the subject of this inquiry has been an employee of the company since February 2009, with the job title of Specialist 2, Construction. Against this backdrop, you ask whether the Commissioner has employment that conflicts with his public role and whether an exemption might apply.

Section 112.313(7)(a), Florida Statutes, sets the parameters by which public officers and employees may maintain outside employment or contractual relationships. Section 112.313(7)(a) 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 or she is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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 prohibits a public officer or employee from holding an employment or contractual relationship with a business entity that is doing business with, or is subject to the regulation of, his or her own agency. The second part of the statute prohibits a public officer or employee from having an employment or contractual relationship that will create a continuing conflict between his or her private interests and his or her public duties, or would impede the full and faithful discharge of his or her public duties.

Here, it is clear that the Commissioner maintains employment with the company. It is also clear that the company, by virtue of its sale of services to the District through the MSAs and TSAs, is "doing business with" the District.² As such, absent the applicability of an exemption, the situation you have described would create a facial conflict of interest for the Commissioner under the first part of Section 112.313(7)(a).³

Section 112.312(12), Florida Statutes, contains various exemptions for what are otherwise facial conflicts of interests under Section 112.313(7)(a).⁴ Your opinion request makes a specific inquiry of the exemption contained in Section 112.313(12)(c), Florida Statutes, which, in relevant part, states:

(12) EXEMPTION.— .   .   . no person shall be held in violation of subsection (3) or subsection (7) if:

*         *         *

(c) The purchase or sale is for legal advertising in a newspaper, for any utilities service, or for passage on a common carrier.

Essentially, if a facial violation of Section 112.313(7)(a) is created by a particular scenario, a public officer cannot be found to have violated the statute if the purchase or sale creating the facial conflict is for legal advertising in a newspaper, for any utilities service, or for passage on a common carrier. Therefore, at issue here is whether the voice-over-internet and internet services covered by the MSAs and TSAs between the District and the company are for "utility services." If the services covered by the MSAs and TSAs constitute "utilities," the Commissioner's facial conflict under the first part of Section 112.313(7)(a) will be exempted by Section 112.313(12)(c), Florida Statutes.

The Code of Ethics is a set of penal statutes. Given its penal nature, the Code must be interpreted in a way such that any doubts as to the meaning of ambiguous, undefined terms are construed most favorably toward a potential respondent (i.e., the person against whom the ethical standard would be applied). See CEO 02-3, CEO 19-12.

The terms "utility," "utilities," and/or "utilities service" are not defined in the Code of Ethics. These terms are defined in other chapters of the Florida Statutes, and those definitions vary widely depending on the context. Some definitions of utilities include voice-over-internet and internet services, while others do not, and that disparity reinforces the ambiguity of the term "utilities service" in Section 112.313(12)(c).

For example, Section 812.14, Florida Statutes, is a penal criminal statute governing trespass and larceny in relation to utility fixtures and the theft of utility services. Section 812.14(1) defines "utility" for purposes of the statute, which states:

"Utility" includes any person, firm, corporation, association, or political subdivision, whether private, municipal, county, or cooperative, which is engaged in the sale, generation, provision, or delivery of gas, electricity, heat, water, oil, sewer service, telephone service, telegraph service, radio service, or telecommunication service.

[emphasis added].⁵

Section 812.145, Florida Statutes, is a penal criminal statute governing the theft of copper or other nonferrous metals from a utility or communications services provider. Section 812.145(1)(e) defines "utility" for purposes of the statute, which states:

"Utility" means a public utility or electric utility as defined in s. 366.02, or a person, firm, corporation, association, or political subdivision, whether private, municipal, county, or cooperative, which is engaged in the sale, generation, provision, or delivery of gas, electricity, heat, water, oil, sewer service, or telephone, telegraph, radio, telecommunications, or communications service. The term includes any person, firm, corporation, association, or political subdivision, whether private, municipal, county, or cooperative, which is engaged in the sale, generation, provision, or delivery of gas or electricity services.

[emphasis added].

Further, the term "communications service," which falls under the Section 812.145(1)(e) definition of "utility," is separately defined in Section 812.145(1)(a), Florida Statutes, which states:

"Communications services" means the transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals, including cable services, to a point, or between or among points, by or through any electronic, radio, satellite, cable, optical, microwave, or other medium or method now in existence or hereafter devised, regardless of the protocol used for such transmission or conveyance. The term includes such transmission, conveyance, or routing in which computer processing applications are used to act on the form, code, or protocol of the content for purposes of transmission, conveyance, or routing without regard to whether such service is referred to as voice-over-Internet-protocol services or is classified by the Federal Communications Commission as enhanced or value-added.

[emphasis added].

Section 337.401, Florida Statutes, governs the use of right-of-ways for utilities subject to regulation of the Department of Transportation and local governments. Section 337.401(1)(a) defines "utility" for purposes of the statute, which states:

The department and local governmental entities, referred to in this section and in ss. 337.402-337.404 as the "authority," that have jurisdiction and control of public roads or publicly owned rail corridors are authorized to prescribe and enforce reasonable rules or regulations with reference to .   .   . any electric transmission, voice, telegraph, data, or other communications services lines or wireless facilities; pole lines; poles; railways; ditches; sewers; water, heat, or gas mains; pipelines; fences; gasoline tanks and pumps; or other structures referred to in this section and in ss. 337.402-337.404 as the "utility."

[emphasis added].

Of note, in AGO 97-36, the Florida Attorney General opined that the definition of "utility" for purposes of Section 337.401 was broad enough to encompass even cable television. Also of note, the term "utility pole" is defined in a different part of Section 337.401, specifically Section 337.401(7)(b)11., Florida Statutes. This definition states:

"Utility pole" means a pole or similar structure that is used in whole or in part to provide communications services or for electric distribution, lighting, traffic control, signage, or a similar function. The term includes the vertical support structure for traffic lights but does not include a horizontal structure to which signal lights or other traffic control devices are attached and does not include a pole or similar structure 15 feet in height or less unless an authority grants a waiver for such pole.

[emphasis added].

Section 119.011, Florida Statutes, contains various definitions for the terms used throughout Chapter 119, the public records laws. As it pertains to the word "utility," Section 119.011(15) states:

"Utility" means a person or entity that provides electricity, natural gas, telecommunications, water, chilled water, reuse water, or wastewater.

[emphasis added].

Additionally, Rule 62-330.476(4), F.A.C., a rule of the Florida Department of Environmental Protection concerning permits for private ingress/egress and utility crossings, defines "utility services." This rule states, in part:

For the purposes of this general permit, "associated onsite residential improvements" include projects that are directly associated with a private single-family residence on the property, such as: a driveway, garage, onsite sewage treatment and disposal systems, wells, utility services (water, electricity, telephone, cable, and gas), recreation structures, sheds, barns, stables and animal pens, walkways, boardwalks, lawns, fences, pools, ponds, and gardens.

[emphasis added].

While the provisions detailed above define utilities and utilities service in criminal and regulatory contexts, those terms are applied in other contexts as well. For example, the Internal Revenue Service (IRS) defines "Housing and Utilities" expense standards as "mortgage (including interest) or rent, property taxes, insurance, maintenance, repairs, gas, electric, water, heating oil, garbage collection, cable television, internet services, telephone and cell phone." Internal Revenue Manual § 5.15.1.8(7)a.8., Allowable Expense Overview (June 29, 2026), https://www.irs.gov/irm/part5/irm_05-015-001 (accessed Sept. 18, 2026) (emphasis added). The IRS also allows for phone services to be deducted as utility services on line 25 of the Form 1040. Internal Revenue Service, Instructions for Schedule C (Form 1040) (2025), https://www.irs.gov/instructions/i1040sc (accessed Sept. 18, 2026).

These examples demonstrate that there are some areas of law in which internet and voice-over-internet services are considered to be "utilities." Upon review, it generally seems that there are two ways that utilities are defined in the Florida Statutes: the first, outlined supra, appears to be broad and inclusive of the voice-over-internet and internet services covered by the MSAs and TSAs that the company has with the District. The second appears to be narrow-there are other areas of the Florida Statutes that limit the definition of the term to electric and gas services, such as Chapter 366, which governs public utilities. However, by its text, the exemption in Section 112.313(12)(c) is applicable to any utilities service, not just public utilities.

As mentioned above, the Commission must construe any ambiguous terms in its penal statutes in favor of a potential respondent. See CEO 02-3 and CEO 19-12. We find that the term "utilities service" in Section 112.313(12)(c) is ambiguous. We encountered the ambiguity in the term "utilities service" and resolved it in favor of a potential respondent in CEO 83-7, where we interpreted the term to include telephone services. Consistent with our approach in CEO 83-7, and given that the meaning of "utilities service" varies widely in other contexts as to the inclusion or exclusion of internet and voice-over-internet services, we resolve the ambiguity here by interpreting Section 112.313(12)(c) to include internet and voice-over-internet services as "utilities services." Therefore, we find the exemption in Section 112.313(12)(c) will operate to negate the facial conflict of interest posed to the Commissioner under the first part of Section 112.313(7)(a) through his employment with the company and the company's MSAs and TSAs for phone and internet services with the District.⁶

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 23, 2026, and RENDERED this 28th day of October 2026.

____________________________________

Jeremy M. Rodgers, Chair

^[1]Chapter 364 of the Florida Statutes, which governs communications services, defines "VoIP" as any service that enables real-time, two-way voice communications that originate from or terminate to the user's location in Internet Protocol or any successor protocol; uses a broadband connection from the user's location; and permits users generally to receive calls that originate on the public switched telephone network and to terminate calls to the public switched telephone network. See § 364.02(15), Fla. Stat. [emphasis added].