CEO 87-49 -- June 11, 1987

CONFLICT OF INTEREST; VOTING CONFLICT

STATE REPRESENTATIVE VICE PRESIDENT OF ORCHESTRA ORGANIZATION

SEEKING STATE FUNDING FOR PERFORMING ARTS HALL

To: The Honorable Mary Ellen Hawkins, State Representative, District 75, Naples

SUMMARY:

No prohibited conflict of interest would be created were a state representative to request the legislature to appropriate funds for the construction of a performing arts hall for a nonprofit orchestra organization which she serves as vice president. As noncompensated service as an officer of a nonprofit corporation does not constitute employment or a contractual relationship, Section 112.313(7), Florida Statutes, would not be violated. As the representative has not been retained by the nonprofit corporation, she would not be required to file a memorandum of voting conflict under Section 112.3143, Florida Statutes, after voting on an appropriation for the construction of the hall. CEO's 83-70 and 77-129 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, a State Representative, to request the Legislature to appropriate funds for the construction of a performing arts hall for a nonprofit orchestra organization which you serve as vice president?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry, you advise that you serve as a member of the Florida House of Representatives. You also advise that you serve as vice president of a nonprofit orchestra organization, the directors of which have raised funds for the construction of a performing arts hall to be used by the orchestra and other local cultural groups. You advise that you do not receive any remuneration for your work in connection with the orchestra or the hall. You have made personal donations to the orchestra and the hall, and have purchased all of your tickets to orchestra performances and fund raising events. You also advise that you accompanied some board members, architects, and other professionals on a weekend trip to inspect a performing arts center in Mexico City at your own expense.

Finally, you advise that you have been asked to request the Legislature to appropriate sufficient funds to enable construction of the hall to begin. Last year, the Legislature appropriated funds for the planning of the project. Both appropriations were recommended by the Secretary of State, you advise.

The Code of Ethics for Public Officers and Employees provides:

SOLICITATION OR ACCEPTANCE OF GIFTS. -- No public officer, employee of an agency, 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, or candidate would be influenced thereby. [Section 112.313(2), Florida Statutes (1985).]

UNAUTHORIZED COMPENSATION. -- No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee 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 or employee was expected to participate in his official capacity. [Section 112.313(4), Florida Statutes (1985).]

Under the circumstances presented, it does not appear that your making this request to the Legislature would violate either of these provisions, as you have not solicited or accepted any gift, compensation, or thing of value from the orchestra organization.

The Code of Ethics also 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 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 (1985).]

This provision prohibits you from having certain types of conflicting employment or contractual relationships. However, we previously have advised that noncompensated service as an officer of a nonprofit corporation does not constitute employment or a contractual relationship. See CEO 83-70 and the opinions cited therein. Therefore, we find that this provision of the Code of Ethics does not apply to your situation.

The Code of Ethics further provides:

MISUSE OF PUBLIC POSITION. -- No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes (1985).]

The term "corruptly" is defined to mean

done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(7), Florida Statutes (1985).]

In CEO 77-129, an opinion concerning a State Representative, whose law firm represented condominium associations, participating in condominium legislation, we stated:

While we are not in a position to judge, in an advisory opinion, your intent with regard to such legislation, we note generally that a legislator necessarily works with legislation that may impinge on his personal financial interests; the very nature of his position is such that he must provide effective representation of his constituents' interest on all issues coming before the Legislature. Where a legislator has participated in legislation on a social or economic issue that he honestly feels is in the best interest of the people of this state, neither is his intent wrongful nor are his actions inconsistent with the proper performance of his public duty.

Finally, Section 112.3143(2)(a), Florida Statutes, provides as follows:

Except as provided in subsection (3), no public officer is prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure which inures to his special private gain or the special gain of any principal by whom he is retained shall 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.

This provision requires you to file a memorandum of voting conflict if you vote upon a measure which inures either to your special private gain or to the special gain of a principal by whom you are retained. Under the circumstances you have presented, it does not appear that an appropriation by the Legislature for the performing arts hall would inure to your private gain, especially as you receive no compensation for your work in connection with the orchestra or the hall. For this reason also it does not appear that you have been "retained" by the nonprofit organization. See CEO 83-70. Therefore, you would not be required to file a memorandum of voting conflict should you be called upon to vote on an appropriation for the construction of the performing arts hall.

Accordingly, we find that no prohibited conflict of interest or voting conflict of interest exists where you have been asked to request the appropriation of funds for the construction of a performing arts hall for a nonprofit orchestra organization which you serve as vice president.