CEO 76-150 -- September 13, 1976
CONFLICT OF INTEREST
SUSPENDED POLICE CHIEF SELLING TO WATER DEPARTMENT
To: (Name withheld at the person's request.)
As the term "suspension" refers to a cessation which is not permanent, so that there is an expectation inferred that there will be a resumption in the future, a municipal police chief who has been temporarily suspended from office is deemed to constitute a public officer subject to the standards of conduct provisions of the Code of Ethics. One of the statutorily expressed intents of the code is to maintain the respect of the people in their government; therefore, interstices in public employment or office do not obviate the necessity that such officials maintain ethical standards required of public servants.
Where a suspended police chief acts through an agent to sell goods to the city's water department, however, no conflict of interest is deemed to exist. Although Florida Statute s. 112.313(3)(1975) prohibits an officer or employee of a political subdivision from selling goods to any agency of that subdivision, primary emphasis is placed on s. 112.316, providing that the Code of Ethics is not to be construed as prohibiting private pursuits which do not interfere with the discharge of public duty. As a police chief's duties in no way involve the purchase of goods by other city departments, no violation of s. 112.313(3) is constituted. As the police department and the water department are separate agencies, neither does a conflict exist under s. 112.313(7). However, the Ethics Commission views with extreme disfavor attempts to avoid ethical standards via contracting through a third party.
1. Is a police chief subject to the provisions of the Code of Ethics for Public Officers and Employees during the time that he is temporarily suspended from office without pay?
2. Does a prohibited conflict of interest exist where a police chief sells goods to the city's water department?
Question 1 is answered in the affirmative.
You state in your letter of inquiry that the chief of police of your city has been temporarily suspended. Inasmuch as the Code of Ethics over which this commission exercises advisory jurisdiction applies only to public officers and employees, it is incumbent upon us to consider first whether a suspended chief of police falls within either of these categories.
The term "suspension" refers to a cessation which is not permanent so that there is an expectation inferred that there will be a resumption in the future. See Gaston v. Pittman, 288 F. Supp. 645, 649 (Fla.); Daniel v. Citizens & So. Nat. Bank, 185 S.E. 696; Ex parte Diggs, 52 Ala. 381, 383; Flamingo, Inc. v. Nebraska Liquor Central Comm., 173 N.W.2d 369, 371, Kansas St. Bd. Healing Arts v. Seashore Kansas, 540 P.2d 576, 578. See also 67 C.J.S. Officers s. 58; 63 Am. Jur.2d Public Officers and Employees s. 225.
As suspension from office is not permanent, but rather embraces the assumption that the suspended public employee or officer will resume his duties at a future date, a suspended public employee is in a position distinct from that of an ordinary citizen. The temporary suspension from office represents not a termination of public duty, but rather an interstice. In a previous opinion of this commission, CEO 75-153, we held that public employees contracting for work on the basis of a 9-month academic year nonetheless are public employees year around, their status not being negated by the interposition of the 3-month break between academic years. We view the situation before us as analogous. For purposes of the Code of Ethics, interstices in ongoing employment do not exempt one from provisions of the Code of Ethics, for such exemption would afford opportunities for evasion of the law through manipulation of pay periods, termination dates, etc.
In its statement of intent and declaration of policy, the Legislature, in enacting the Code of Ethics for Public Officers and Employees, declared an essential purpose of the code to be to "strengthen the faith and confidence of the people of the state in their government . . . ." Fla. Stat. s. 112.311(5)(1975). It was further declared as a matter of state policy that public officers and employees "are agents of the people and hold their positions for the benefit of the public," and that "maintaining the respect of the people in their government must be of foremost concern." Fla. Stat. s. 112.311(6)(1975).
During interstices in public employment, the duty to uphold the public's trust in its officials is still mandatory to insure that conduct violative of the code will not accompany one upon resumption of public duties. To rule otherwise would not be within the spirit or intent of the Code of Ethics as cited above.
We acknowledge familiarity with AGO 073-146 on this question. Inasmuch as the ethics laws have been revised substantially since 1973, however, and since this commission now is charged with the duty to interpret and apply this law, we respectfully disagree with the Attorney General's earlier conclusion and find a public official under temporary suspension from office or employment to be subject to the standards of conduct provisions of the Code of Ethics.
Question 2 is answered in the negative.
Your letter of inquiry advises us that, in September of 1975, the chief of police of your municipality had an opportunity to sell goods to the city's water department through a business which he owned and operated. According to an affidavit signed by one of the chief's friends, the chief thought that such sale might constitute a conflict of interest and therefore routed the sale through that friend's corporation. The sales were consummated, and the chief received the proceeds of the sale.
The following provision of the Code of Ethics for Public Officers and Employees was in effect at the time the subject sale took place.
CONFLICTS PROHIBITED. -- No public officer or employee of an agency shall own a material interest in any business entity doing business with the agency of which he is an officer or employee, except in those cases when the business is contracted with full public competition and award is made to the lowest or best bidder or to a consultant in accordance with s. 287.055. [Fla. Stat. s. 112.313(2)(1974 Supp.).]
That version of the code defined the term "agency" to mean:
. . . any state, county, local, or municipal governmental entity, whether executive, judicial, or legislative, and any department, division, bureau, commission, authority, or special taxing district therein with authority to exercise the sovereign power of the state. [Fla. Stat. s. 112.312(1)(1974 Supp.).]
In effect the police chief did business with the water department. However, the water department and the police department are separate agencies for purposes of the Code of Ethics. Consequently, no prohibited conflict existed under the former s. 112.313(2).
Please note that no prohibited conflict would have existed were the revised Code of Ethics in effect at the time the sale was made. The Code of Ethics for Public Officers and Employees states in relevant part:
DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his 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 his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he 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. 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.
[Fla. Stat. s. 112.313(3)(1975); emphasis supplied.]
As you can see, the emphasized portion of this provision prohibits a public officer or employee from acting in his private capacity to sell goods to any agency in his political subdivision. However, this prohibition must be read in light of the following provision:
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 duties to the state or the county, city, or other political subdivision of the state involved. [Fla. Stat. s. 112.316(1975).]
Accordingly, in enacting the Code of Ethics, the Legislature did not intend that the Code of Ethics be construed to prohibit private pursuits which do not interfere with the discharge of public duty. Each standard of conduct must be read with this qualification in mind.
The chief of police is not in a position to supervise or regulate the water department. Nor do the chief's duties in any way involve approval of or the giving of advice or recommendations as to purchases of goods by the water department. This being the case, the above-described sale does not interfere with the full and faithful discharge of the police chief's duties and therefore does not violate s. 112.313(3), quoted above.
The Code of Ethics goes on to provide that:
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. [Fla. Stat. s. 112.313(7)(a)(1975).]
This provision prohibits a public officer or employee from having a contractual relationship with a business entity doing business with his public agency. The police chief's agency is the city's police department. See Fla. Stat. s. 112.312(2)(1975). The friend's corporation did business with the water department, which constitutes a separate agency for purposes of the Code of Ethics. Accordingly, the described sale does not violate s. 112.313(7).
In summation, the sale you describe in your letter of inquiry does not breach any past or current provision of the Code of Ethics. However, we must advise that this commission views with extreme disfavor attempts to avoid ethical standards imposed upon public officials.