CEO 97-19 -- October 16, 1997

 

CONFLICT OF INTEREST

 

CITY FIRE CHIEF AND CITY PUBLIC WORKS DEPARTMENT EMPLOYEE

SERVING AS CHIEF AND ASSISTANT CHIEF OF THE CITY'S VOLUNTEER

FIRE DEPARTMENT RESPECTIVELY AND RECEIVING MONEY

FROM GENERAL REVENUE FUNDS

 

To:      (Name withheld at person's request)

 

SUMMARY:

 

No prohibited conflict of interest would be created were  a City's salaried Fire Chief and a wage employee with the City's Department of Public Works to serve as Volunteer Fire Chief and Assistant Fire Chief, respectively, of an all volunteer fire department ("VFD") whose members receive money from the City's general revenue funds for, among other things, attending fires both during and after normal duty hours and for attending training sessions of the Department.

 

Although the Department of Public Works employee has an employment or contractual relationship with the VFD by virtue of his receipt of money from the VFD, the VFD does not appear to be regulated by or doing business with the Public Works Department, and there does not appear to be any continuing or frequently recurring conflict between his private interests as Assistant Fire Chief for the VFD and his public duties for the Public Works Department.  Therefore, no prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, exists with respect to him.

 

By virtue of his receiving money from the VFD, the Fire Chief appears to have a contractual or employment relationship with the VFD, which by virtue of its receipt of City funds is doing business with the City, contrary to the prohibition of Section 112.313(7)(a).  However, because City Ordinance No. 90-168 makes the VFD the sole source of firefighting services in the City, the Section 112.313(12)(e), Florida Statutes, exemption to the prohibitions of Sections 112.313(3) and 112.313(7)(a) applies to negate any possible prohibition.  Therefore, no prohibited conflict of interest exists with respect to him as well.

 

QUESTION:

 

Is a prohibited conflict of interest created where the City Fire Chief serves as the Volunteer Fire Chief over an all Volunteer Fire Department (VFD) and is paid from City general revenue funds for attending fires, both during and after normal duty hours, for attending training sessions of the department, etc., and where an employee of the City's Public Works Department serves on the Board of Directors of the City's Volunteer Fire Department as the Assistant Fire Chief, receives a monthly payment for serving in the position out of the City's general revenue fund, and would receive money paid from the City's general revenue funds for attending fires, both during and after normal duty hours, for attending training sessions of the department, etc.?

 

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

 

You advise that you are requesting this opinion in behalf of the Parker City Council, the City's Fire Chief and a Truck Driver/Equipment  Operator with the City's Public Works Department.

Initially, we note that the Code of Ethics does not address or prohibit "dual compensation," that is, a local governmental official or employee being a salaried or wage employee of a governmental entity while also receiving other monies from the same governmental entity for other services that he or she may provide to the governmental entity.  What you may be referring to when you inquire about "dual compensation" is the prohibition of Article II, Section 5, Florida Constitution against "dual office-holding."[1]  Although we do not believe that the dual office-holding provision of the Florida Constitution applies under either of your scenarios, we do not have the jurisdiction to render opinions about this constitutional prohibition; those opinions are given by the Attorney General.

If, however, you are referring in your inquiry to Section 112.313(10), Florida Statutes, which prohibits "employees of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state" from "hold[ing] office as a member of the governing board, council, commission, or authority, by whatever name known, which is his or her employer while, at the same time, continuing as an employee of such employer," we are of the opinion that this section does not apply here either, because neither the City's Fire Chief nor the City's Public Works Department employee appears to hold office as a member of the City Council.

The only other provision of the Code of Ethics that might be implicated under your scenarios is Section 112.313(7)(a), Florida Statutes, which provides as follows:

 

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.  [Section 112.313(7)(a), Florida Statutes.]

 

This provision prohibits the Fire Chief and the Public Works Department employee from having an employment or contractual relationship with a business entity which is regulated by or is doing business with the City  (in the case of the Fire Chief) or the City's Public Works Department (in the case of  the Public Works Department employee), and the second part of   the provision prohibits them from having employment or contractual relationships that create continuing or frequently recurring conflicts between their private interests and their public duties, as Fire Chief and Public Works Department employee, respectively, or create an impediment to the full and faithful discharge of their public duties.

In CEO 95-26, we noted that in a number of opinions we have examined the "agency" of city employees in light of the definition of "agency" contained in Section 112.312(2), Florida Statutes.  Consistent with those opinions, we find  that the agency of the Public Works Department employee is the Public Works Department and the agency of the Fire Chief is the City's Department of Public Safety or the City's Fire Department, whichever employs him.  See also CEO 89-61, CEO 90-17, and CEO 91-28.

Because the Public Works Department employee's contractual or employment relationship with the City's Volunteer Fire Department (VFD) is not with an entity that is either regulated by or doing business with his agency, the Public Works Department, we are of the opinion that the prohibition of the first part of Section 112.313(7)(a) would not apply to him or her.  Similarly, inasmuch as you have not provided any information indicating otherwise, we find that his service on the Board of Directors of the City's VFD, as the Assistant Fire Chief, would not create a continuing or frequently recurring conflict between his private interests, as a member of the Board of Directors/Assistant Fire Chief, and his public duties to the Public Works Department or an impediment to the full and faithful discharge of his public duties.

With respect to the Fire Chief, the written job description that you forwarded to us indicates that he acts as liaison between the City and the City's VFD and supervises twenty (20) firefighters. Furthermore, City Ordinance No. 90-168, which you also provided, indicates that the VFD has been designated as the official fire department of the City, and the Fire Chief has control and operational authority over all firefighters acting on behalf of the City.  You also indicate that there is no contract between the City and the VFD.  Any City funds that are paid to the Fire Chief and other firefighters are authorized by Section 17 of Ordinance No. 90-168, which provides that the Fire Chief is to submit requests to the City Council for reimbursement for certain expenses.   The City Council then is authorized to budget monies to reimburse the VFD, but is not obligated to do so.

In CEO 89-56, we opined that a prohibited conflict of interest would be created under Section 112.313(7)(a) were county firefighters employed by a county municipal services benefit unit (MSBU) also to be employed by volunteer fire departments under contract with the municipal services benefit unit to provide firefighting services.  According to the information provided to us, the purpose of the MSBU was to provide fire and rescue services to unincorporated areas of the county through service agreements with existing volunteer fire departments which were nonprofit corporations.  Under the agreement, the management level personnel and full time career firefighters with the VFD's were to become employees of the county through the MSBU, as well as continue to hold positions with the VFD's.  They were to be compensated by both entities.

We opined there that Section 112.313(7)(a) prohibits an employee of the MSBU from being employed by a VFD if that VFD is doing business with the MSBU.   Thus, we found that an employee of the MSBU was prohibited from being a compensated employee of the VFD which was under contract to the MSBU.  Under the circumstances presented in that opinion, we found that the VFD's  were  doing business with the MSBU.  We also opined that volunteers with the VFD's would be prohibited from becoming employed by the MSBU if they received compensation from the VFD.  The volunteers apparently received a "per call" fee in the discretion of their boards, which was paid from non-County funds.[2]  They also received worker's compensation and insurance coverage funded by the County as part of their positions with the MSBU.[3]  Furthermore, the employment relationship between the volunteers and the VFD was not affected by whether the compensation was paid from county supplied funds or other funds of the VFD. [4]

Finally, in CEO 86-29, we advised that a Mayor could serve as a trustee of a volunteer fire department which had contracted with the city to provide services to it.  The information provided to us indicated that, through a referendum, the city was prohibited from contracting with an entity other than the subject VFD.  Therefore, we found that the VFD was the "sole source" of supply for firefighting services in the city and that the Section 112.313(12)(e) "sole source" exemption to the prohibitions of Sections 112.313(3) and 112.313(7)(a), Florida Statutes, applied.

It appears that, by virtue of his receipt of money from the VFD, the Fire Chief has a contractual or employment relationship with the VFD and, by virtue of the VFD's receipt of City funds, it is doing business with the City, a prohibited conflict of interest under Section 112.313(7)(a) seemingly would exist.  However, because City Ordinance No. 90-168 makes the VFD the sole source of firefighting services in the City, we find that Section 112.313(12)(e), Florida Statutes, would apply to negate any possible Section 112.313(7)(a) prohibition.[5]  This provision exempts from the prohibitions of Section 112.313(7)(a) a public employee who has a contractual relationship with a business entity doing business with his or her public agency are a sole source of supply, so long as full disclosure is made.[6]  Notwithstanding the full disclosure requirement (and assuming that our assumptions are correct),  we also are of the opinion that it is not necessary for the Fire Chief to complete Form 4A, because full disclosure has already been made through the City's enacting Ordinance No. 90-168 setting forth the relationship between the Fire Chief, the VFD, and the City.

Accordingly, we find that under the circumstances presented no prohibited conflict of interest would be created where the City's salaried Fire Chief and a wage employee with the City's Department of Public Works serve as Volunteer Fire Chief and Assistant Fire Chief, respectively, of an all volunteer fire department whose members receive money from the City's general revenue funds for, among other things, attending fires both during and after normal duty hours and for attending training sessions of the Department.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 16, 1997 and RENDERED this 21st day of October, 1997.

 

 

 

__________________________

Kathy Chinoy

Chair

 


[1] Article II, Section 5, Florida Constitution, provides in relevant part as follows:

(a)  .  .  .  No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, taxation and reform commission, constitutional convention, or statutory body having only advisory powers.

[2] We previously held that where volunteer firefighters received compensation in the form of a stipend, they were "employees" for purposes of the Code of Ethics.  See In re Cornelius Adema, William Hansen, Brian Juntikka, Complaint Nos. 80-42, 80-43, 80-44 (Consolidated), 3 FALR 2090-A (1981); and CEO 85-56.

[3] We noted that coverage of the volunteers under the County's worker's compensation policy or other insurance coverage for injuries related to firefighting duties would not constitute compensation, as this coverage is typically required for all persons in these roles and is often provided as much to protect the government entity as for the benefit of the individual.  Thus, a volunteer who received either no compensation or who only received  worker's compensation and/or duty related insurance could be paid employees of the MSBU, we opined.

[4] However, we also found that volunteers who receive no compensation either in the form of a stipend, insurance coverage, per call fees, or other personal benefits would not be "employees" of the VFD.

[5] Exemptions to the application of the prohibitions of Sections 112.313(3) and 112.313(7)(a),  Florida Statutes, are contained at Section 112.313(12).  One of those exemptions is, Section 112.313(12)(e), Florida Statutes, which provides as follows:

In addition, no person shall be held in violation of subsection (3) or subsection (7) if:    .   .   .   .

(e)       The business entity involved is the only source of supply within the political subdivision of the officer or employee and there is full disclosure by the officer or employee of his or her interest in the business entity to the governing body of the political subdivision prior to the purchase, rental, sale, leasing, or other business being transacted.

[6] We have promulgated Commission on Ethics Form 4A, Disclosure of Business Transaction, Relationship, or Interest, for use in making the required disclosure.