CONFLICT OF INTEREST
PLANNING COMMISSIONER EMPLOYED BY AVIATION AUTHORITY
To: Mitch Thrower (Tampa)
Under the situation presented, no prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, would be created were a planning commissioner to be employed by an aviation authority. CEO 11-6 is referenced.1
Would a prohibited conflict of interest be created under Section 112.313(7)(a), Florida Statutes, were you, an employee of the Hillsborough County Aviation Authority, also to serve as a member of the Hillsborough County City-County Planning Commission?
Under the circumstances presented, your question is answered in the negative.
By your inquiry made to us via email and additional information provided by you to our staff, we are advised that you are employed as Deputy Director of Administration for the Hillsborough County Aviation Authority (an independent special district), with your work concerning risk management (insurance), central records, lost and found, abandoned vehicles, and banking operations. In addition, you advise that you are seeking appointment (as a Hillsborough County Commission appointee) to the Hillsborough County City-County Planning Commission.2 Further, you advise that the Planning Commission was created for the purpose of conducting continuous planning and making recommendations to the governing boards of the County, the municipalities, and other public bodies concerning the orderly growth and development of the County. Also, you advise that the Planning Commission has the duty and responsibility to prepare, monitor, evaluate, and update the comprehensive plan and make recommendations to each governing body regarding the adoption of the comprehensive plan, any element thereof, or any amendments thereto. Additionally, you advise that the Planning Commission has the power to review, prior to adoption, all long range plans and master plans and amendments thereto proposed by the Tampa Sports Authority, the Aviation Authority (your employer), the Tampa Port Authority, the Florida State Fair Authority, the Hillsborough County Expressway Authority, the Hillsborough County Hospital Authority, the Hillsborough Regional Transit Authority, and other authorities exercising planning or land development powers, in order to make a recommendation to a given authority as to the consistency of its plan or amendment with the comprehensive plan or amendments to the comprehensive plan. Further, you advise that the Aviation Authority and other authorities are required by law to submit their long range and master plans to the Planning Commission, and are required to cooperate with the Planning Commission by providing such data and information to the Planning Commission as the Planning Commission may require in implementing its duties and responsibilities.
Section 112.313(7)(a), Florida Statutes, relevant to your inquiry, 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 or she 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 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 would prohibit you, as a Planning Commissioner, from holding employment with the Aviation Authority, if the Authority is subject to the regulation of, or is doing business with, the Planning Commission. The second part of the statute would prohibit your employment with the Authority if the employment would create a continuing or frequently recurring conflict between your private interests as an employee (albeit it as an employee of another public agency, the Authority) and the performance of your public duties as a Planning Commissioner, or if your employment with the Authority would impede the full and faithful discharge of your public duties as a Planning Commissioner.
Under the first part of the statute, we find that no prohibited conflict would be created. Nothing in the situation presented indicates that the Planning Commission and the Authority are doing business with one another. Also, while there is an interface between the interests or responsibilities of the Planning Commission and those of the Authority (regarding planning, plans, amendments, etc.), we do not find this to constitute "regulation." In this regard, the situation is analogous to our recent decision finding that a city planning and zoning board (PZB) did not "regulate" persons or entities applying to it for action, CEO 11-6.
Under the second part of the statute, we do not find that your employment would create a continuing or frequently recurring conflict or would impede the full and faithful discharge of your public duties. In this regard, your situation is distinguishable from that of CEO 11-6, in which we found that the PZB member would have a prohibited conflict under the second part if he or his private professional firm represented a client before the PZB. In your situation, you work for another public entity, you do not have private clients, and you would not be making any presentation for the Authority regarding the Planning Commission.
Accordingly, under the circumstances presented, we find that Section 112.313(7)(a) does not prohibit your serving both as a Planning Commissioner and an employee of the Aviation Authority.3
ORDERED by the State of Florida Commission on Ethics meeting in public session on September 9, 2011 and RENDERED this 14th day of September, 2011.
Robert J. Sniffen, Chairman
Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us) or may be obtained directly from the Commission.
You advise that the County Commission appoints four members of the Planning Commission, that the City of Tampa appoints four members, and that two other municipalities each appoint one member (for a total of ten members).
You also ask whether the employment of your wife with Tampa's Ybor City Development Corporation would conflict with your duties on the Planning Commission. The contractual relationships or employment of your spouse, alone, cannot create a prohibited conflict for you under Section 112.313(7)(a). Also, the voting/participation conflicts law, Sections 112.3143(3)(a) and (4), Florida Statutes, are not implicated by votes/matters of the Planning Commission which would affect the Authority or the Development Corporation, unless they would result directly in gain or loss to you or your wife, personally. While the Authority is your employer (principal by whom you are retained), Section 112.3143 is concerned with votes/matters which directly cause private gain or loss, not gain or loss to another public agency, and nothing in the situation presented indicates that your job at the Authority (your private interest) would be affected by Planning Commission action concerning the Authority. Sections 112.3143(3)(a) and (4) provide, respectively:
VOTING CONFLICTS.—No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer’s interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her 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.
(4) No appointed public officer shall participate in any matter which would inure to the officer’s special private gain or loss; which the officer knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained; or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer, without first disclosing the nature of his or her interest in the matter.
(a) Such disclosure, indicating the nature of the conflict, shall be made in a written memorandum filed with the person responsible for recording the minutes of the meeting, prior to the meeting in which consideration of the matter will take place, and shall be incorporated into the minutes. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.
(b) In the event that disclosure has not been made prior to the meeting or that any conflict is unknown prior to the meeting, the disclosure shall be made orally at the meeting when it becomes known that a conflict exists. A written memorandum disclosing the nature of the conflict shall then be filed within 15 days after the oral disclosure with the person responsible for recording the minutes of the meeting and shall be incorporated into the minutes of the meeting at which the oral disclosure was made. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.
(c) For purposes of this subsection, the term ‘participate’ means any attempt to influence the decision by oral or written communication, whether made by the officer or at the officer’s direction.