CEO 82-51 -- July 29, 1982

CONFLICT OF INTEREST

COUNTY OFFICER OR EMPLOYEE SERVING AS OFFICER OR DIRECTOR OF NONPROFIT CORPORATION RECEIVING TOURIST DEVELOPMENT FUNDS

To: Mr. Harry A. Stewart, General Counsel, Broward County

SUMMARY:

A prohibited conflict of interest would be created were a county commissioner, an assistant county administrator, or a county tourist development council member to serve as an officer or director of a nonprofit corporation which receives tourist development funds to promote tourism in the county. Section 112.313(3), Florida Statutes, prohibits a county officer or employee from acting in a private capacity to sell any services to the county. One is "acting in a private capacity" to sell services when a business entity of which he is an officer or director sells its services. See CEO 78-39. It does not appear that any of the exemptions of Section 112.313(12), Florida Statutes, would apply, except for the provision which allows for waiver by the appointing authority of an advisory board member. Here, the tourist development council is an advisory board, and the county commissioner may waive the requirements of Section 112.313(3), for a member of the council in the manner specified by Section 112.313(12), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest be created were a county commissioner, an assistant county administrator, or a county tourist development council member to serve as an officer or director of a nonprofit corporation which receives tourist development funds to promote tourism in the county?

Your question is answered in the affirmative, subject to the exception noted below.

In your letter of inquiry you advise that Broward County has developed a Tourist Development Council, the members of which are appointed by the Board of County Commissioners, to recommend the award of grants-in-aid to nonprofit corporations whose purpose is the promotion of tourism in the County. Funding is provided from the County's Tourist Development Trust Fund, which is composed of revenue from the tourist development tax imposed pursuant to Section 125.0104, Florida Statutes. The Board of County Commissioners, you advise, votes on the recommendations of the Tourist Development Council to award the funds to the nonprofit corporations.

You question whether a County Commissioner, an Assistant County Administrator, or a Tourist Development Council member may serve as an officer or director of a nonprofit corporation which receives tourist development funds. You advise that neither the members of the Tourist Development Council nor the officers or directors of the nonprofit corporation in question receive compensation for their services. You also advise that the Assistant County Administrator acts as Executive Director of the Tourist Development Council.

The Code of Ethics for Public Officers and Employees provides 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.

[Section 112.313(3), Florida Statutes (1981).]

This provision prohibits a County officer or employee from acting in a private capacity to sell any services to the County. We previously have advised that one is "acting in a private capacity" to sell services when a business entity of which he is an officer or director sells its services. See CEO 78-39.

In addition, we are of the opinion that the nonprofit corporation here is selling services to the County by virtue of its agreement to promote tourism with the funds granted to it by the County. In particular, we note that Section 125.0104(5)(a) permits a County to use tourist development tax revenues only to operate facilities which would attract tourists or to promote and advertise tourism. See CEO 82-9.

Section 112.313(12), Florida Statutes, contains several exemptions to the application of Section 112.313(3). It does not appear that these exemptions would apply under the circumstances you have presented, with one exception. Section 112.313(12) permits the appointing body of an advisory board member to waive a particular conflict of interest of that advisory board member upon full disclosure of the transaction or relationship and an affirmative, two-thirds vote. We have promulgated CE Form 4A, "Disclosure of Business Transaction, Relationship, or Interest," for use in making the disclosure required by this provision. In a telephone conversation with our staff, an Assistant General Counsel with your office advised that the Tourist Development Council performs only an advisory function, with final decisions being made by the County Commission. After reviewing the responsibilities of the Council as set forth in Section 125.0104, Florida Statutes, we agree that the Council is an advisory board. Therefore, we find that the County Commission may waive the requirements of Section 112.313(3) for a member of the Council in the manner specified by Section 112.313(12), Florida Statutes.

Accordingly, we find that a prohibited conflict of interest would be created were a County Commissioner, an Assistant County Administrator, or a County Tourist Development Council member to serve as an officer or director of a nonprofit corporation which receives tourist development funds to promote tourism in the County. We also find that this conflict of interest on the part of a Tourist Development Council member may be waived by the County Commission in accordance with Section 112.313(12), Florida Statutes.