CONFLICT OF INTEREST
CITY TENNIS PROFESSIONAL PROVIDING TENNIS-RELATED SERVICES AND RETAINING NET REVENUE FROM PRO SHOP OPERATION, PER HIS EMPLOYMENT CONTRACT WITH THE CITY
To: Name withheld at person's request (Plantation)
No provision of the Code of Ethics for Public Officers and Employees would be violated where a Tennis Professional's employment contract with the City requires him to provide tennis-related services and operate a pro shop for the benefit of the City. In addition, no prohibited conflict of interest would exist were the tennis professional to use a corporate structure to run the pro shop operation and provide lessons and other services required by his employment contract. CEO 95-16 and CEO 81-49 are referenced
Does a prohibited conflict of interest exist where a City tennis professional's employment contract requires him to provide tennis-related services and operate a pro shop for the benefit of the City?
This question is answered in the negative, under the circumstances presented.
You advise that since 1981, ... ,has contracted with the City of Plantation as its tennis professional. Under this employment contract, he is paid a salary and receives employee benefits and is responsible for the various tennis facilities in the City. He is required to operate those facilities as set out in the contract, which specifically provides that he will be considered an "at-will," full-time City employee for purposes of affording him the same health, life, and retirement benefits as other full-time employees of the City. The City is responsible for providing the tennis structures and facilities, maintaining the structures and grounds, and paying for utilities.
The contract also specifies that the Tennis Professional is to provide lessons, conduct clinics, arrange tournaments, provide equipment for sale or rental through the pro shop, and maintain vending machines, equipping the pro shop at his own expense and providing all items necessary to operate it in a "business-like manner." Staffing the pro shop is the responsibility of the Tennis Professional, at his expense as independent contractors of the Tennis Pro rather than as City employees. The Tennis Professional is responsible for paying taxes on personal property located on the tennis complex and paying sales taxes and for workers' compensation if required. He is required to maintain liability insurance covering injuries arising from the instructional operations, assumes the risk of loss for the property in the pro shop, hold the City harmless from such losses, and must provide janitorial services.
This is the first opportunity we have had to consider this type of public employment, which we understand may be fairly common in this profession. In CEO 95-16 we considered a municipal golf professional, but in that opinion the city purchased the goods that were sold in the pro shop and the issue concerned the gift law. There are three provisions of the Code of Ethics for Public Officers and Employees relevant here. Section 112.313(3), Florida Statutes, provides:
DOING BUSINESS WITH ONE'S AGENCY—No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer’s or employee’s spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer’s or employee’s spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer’s or employee’s own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator’s place of business or when such offices are on property wholly or partially owned by the legislator. This subsection shall not affect or be construed to prohibit contracts entered into prior to:
(a) October 1, 1975.
(b) Qualification for elective office.
(c) Appointment to public office.
(d) Beginning public employment. [E.S.]
Finally, Section 112.316, Florida Statutes, provides:
CONSTRUCTION.—It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his or her duties to the state or the county, city, or other political subdivision of the state involved.
In our view, it is not clear that the Tennis Professional would be considered to be a City employee who is "acting in a private capacity" to sell any services to the City [as would be prohibited by Section 112.313(3)], given the terms of the single contract which both creates his employment and requires him to operate a tennis-related business on the City's premises for the benefit of City residents. Nor is it clear that he has employment or a contractual relationship with a business entity that is "doing business with" his agency [as would be prohibited by Section 112.313(7)(a)].
However, it is clear that under the circumstances presented there is no conflict between his interests as a City employee and his obligations to the City to provide the tennis-related goods and services that are required of him by this contract. We see no instance where regard for his interest in income from the pro shop operation would tend to lead to disregard of his overall duties as the City-employed Tennis Professional.1In short, his operation of the pro shop is a "pursuit which does not interfere with the full and faithful discharge" of his duties to the City. Therefore, we find that even if the situation falls within the scope of either Section 112.313(3) or (7)(a), Section 112.316 requires us to conclude that the situation does not violate either provision.
On this basis, at least, the situation is distinguishable from that in CEO 81-49. 2There, a school board attorney was employed by the school board and also provided litigation services for the school district through his law firm, billed at an hourly rate and sometimes using a partner or associate of the firm. The school board attorney had the authority to determine whether his law firm or another firm would represent the district in a particular matter. We found that the situation violated both Section 112.313(3) and Section 112.313(7)(a). Unlike CEO 81-49, we see no possibility that regard for income derived from the pro shop operation could influence any decision made by the Tennis Professional in his employment capacity.
Accordingly, we find that no provision of the Code of Ethics for Public Officers and Employees would be violated where the subject Tennis Professional's employment contract requires him to provide tennis-related services and operate a pro shop for the benefit of the City.
Would a prohibited conflict of interest exist were the tennis professional to use a corporate structure to run the pro shop operation and provide lessons and other services required by his employment contract?
This question also is answered in the negative, under the circumstances presented.
As we have found that there is no conflict of interests created under the Tennis Professional's employment contract, no interference with the full and faithful discharge of his duties as a City employee that would be created under the contract, it would not matter whether the business operation of the pro shop is conducted as a sole proprietorship or as a corporation or other form of business organization.
ORDERED by the State of Florida Commission on Ethics meeting in public session on October 22, 2010 and RENDERED this 27th day of October, 2010.
See Section 112.312(8), Fla. Stat., defining "conflict" or "conflict of interest" to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest."
Affirmed as Howard v. State Comm'n on Ethics, 421 So.2d 37 (Fla. 3rd DCA 1982).