CEO 81-47 -- July 16, 1981

CONFLICT OF INTEREST

DIRECTOR OF MUNICIPAL POWER PLANT OWNER OF CORPORATION OWNING MOTEL AT WHICH POWER PLANT MECHANIC RESIDES

To: Mr. Thomas H. Barry, City Attorney, City of Homestead

SUMMARY:

Section 112.313(7)(a), Florida Statutes, would prohibit a director of a municipal power plant from having a contractual relationship with a mechanic who has been hired by the director to perform repair work at the power plant. However, under the circumstances presented, the director owns one half of a corporation which owns a motel at which the mechanic resided while working at the power plant. Therefore, although the corporation had a contractual relationship with the mechanic, the director, personally, did not. Similarly, in CEO 79-1, it was found that Section 112.313(7)(a) would not prohibit a county commissioner from being a principal in a corporation which sold tires to businesses granted a franchise by the county commission. Section 112.313(6), Florida Statutes, prohibiting the solicitation or acceptance of certain gifts, would not have been violated if the director did not solicit the business of the mechanic for the motel, make his occupancy a condition of his employment, or use or attempt to use his official position in any other manner.

QUESTION:

Did a prohibited conflict of interest exist where the director of a municipal power plant hired three mechanics as independent contractors to perform repair work at the power plant and where two of the mechanics resided at a motel owned by a corporation of which the director was a fifty-percent owner?

Through your letter of inquiry we are advised that Mr. H. C. Peters, the Director of the City of Homestead Power Plant, hired three mechanics as independent contractors to perform repair work on generators at the power plant. These individuals were paid at an hourly rate; in addition they received payment for their travel expenses and a per diem amount for room and board. During the time these individuals worked for the City, two of them resided at a motel owned by a corporation of which the subject Director was a fifty- percent owner.

The Code of Ethics for Public Officers and Employees provides in part:

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 (1979).]

This provision prohibits a public employee from having a contractual relationship with a business entity which is doing business with his agency. Thus, the subject Director would be prohibited from having a contractual relationship with any of the mechanics who were performing repair work at the power plant.

However, under the circumstances you have presented, it was the Director's corporation and not the Director, personally, which had a contractual relationship with the mechanics. Similarly, in CEO 79-1, a copy of which is enclosed, we advised that Section 112.313(7)(a), Florida Statutes, did not prohibit a county commissioner from being a principal in a corporation which sold tires to businesses granted a franchise by the county commission. As in CEO 79-1, we feel obligated to point out that Section 112.313(7)(a) would prohibit the subject Director from personally contracting with the mechanics to provide lodging. Since this lodging was provided by the corporation, no prohibited conflict of interest was created, although the situation clearly resulted in the appearance of such a conflict of interest.

Section 112.313(7) also prohibits a public employee from having any 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. However, you have presented no facts from which we could conclude that the subject Director's ownership interest in the corporation which owns the motel would present a frequently recurring conflict of interest or would impede the full and faithful discharge of his duties.

The Code of Ethics also 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 (1979).]

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 (1979).]

As we have observed in previous opinions CEO 77-129 and CEO 81-44, this statute requires a determination of intent which is extremely difficult to make while rendering an advisory opinion, since intent generally is determined from an examination of all relevant circumstances. We are able to do this on the basis of evidence presented through investigation and hearing when a complaint has been filed, but in rendering an advisory opinion we are handicapped by a lack of access to information concerning all the circumstances of the situation as well as information concerning the credibility of the individuals involved. Therefore, we prefer not to make a final determination as to whether the subject Director has or has not violated this prohibition.

However, we note that your letter of inquiry indicates that there is absolutely no proof that the subject Director solicited the business of the mechanics for the motel or made their occupancy a condition of their employment. If this is true, and if the subject Director did not use or attempt to use his official position in any other manner, Section 112.313(6) would not apply.

Similarly, if your representation accurately characterizes the situation, the subject Director apparently would not have violated Section 112.313(2)(b), Florida Statutes, which provides:

SOLICITATION OR ACCEPTANCE OF GIFTS. -- No public officer or 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:

That is based upon any understanding that the vote, official action, or judgment of the public officer, employee, or candidate would be influenced thereby.

Accordingly, although we have been unable to provide a final answer to the question you have posed, we hope that our observations have been of some assistance to you.