CEO 82-65 -- July 29, 1982

CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST

COUNTY COMMISSIONER'S SPOUSE DOING BUSINESS AS CIVIL ENGINEER WITHIN COUNTY

To: Ms. Judy Culpepper, Candidate, St. Lucie County Commission

SUMMARY:

No prohibited conflict of interest would be created were an individual to be elected to serve as a county commissioner while being an officer, director, and shareholder in her husband's civil engineering corporation. The engineering firm is not subject to the regulation of the county commission. Complaint No. 79-74, In re John Zerweck, final order rendered June 26, 1980, affirmed, Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th D.C.A. 1982). Under the circumstances presented here, no frequently recurring conflict of interest would be created nor would the full and faithful discharge of a county commissioner's duties be impeded. Compare Zerweck v. Commission on Ethics. A voting conflict of interest would be created under Section 112.3143, Florida Statutes, if the individual were to vote as a county commissioner on matters concerning projects of her husband's engineering firm. Therefore, if the individual were to vote, a Memorandum of Voting Conflict should be filed as provided in that Section; alternatively, she may abstain from voting as provided in Section 286.012, Florida Statutes. However, a prohibited conflict of interest would be created were the individual to serve as a county commissioner if her husband's civil engineering corporation were to do business with the county. Section 112.313(3), Florida Statutes, would prohibit a county commissioner from acting in an official capacity to purchase any services for the county from a business entity of which she or her husband is an officer, director, or owner of more than a five percent interest.

QUESTION 1:

Would a prohibited conflict of interest be created were you to serve as a county commissioner while being an officer, director, and shareholder in your husband's civil engineering corporation, which is doing business in the county?

This question is answered in the negative.

In your letter of inquiry you advise that you are a candidate for election to a County Commission. You also advise that your husband is a consulting civil engineer, and that you are the secretary- treasurer, a director, and a stockholder in his engineering firm. In addition, you advise that as a civil engineer, your husband would appear before the County Commission when a client's project would need site plan approval, rezoning, or the like. Over the past two years, you advise, either he or his clients have come before the County Commission approximately six or eight times. This number reflects multiple visits regarding individual projects, as most projects require more than one appearance.

The Code of Ethics for Public Officers and Employees provides in relevant 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 (1981).]

The first portion of this provision prohibits a county commissioner from having any employment or contractual relationship with a business entity which is subject to the regulation of the county commission.

As a shareholder in the engineering firm, you have a contractual relationship with that business entity. See CEO's 79-16 and 80-11. However, we do not find that the engineering firm is subject to the regulation of the County Commission. Civil engineers are regulated by the Department of Professional Regulation and the State Board of Professional Engineers under Chapter 471, Florida Statutes. Although we have found that an engineering firm may be regulated by the building or engineering department of a city or county, through the review, approval, and permitting of plats and plans (see CEO's 76-2A and 76-113), we have not found that a county or city commission regulates business entities involved in construction and development. Complaint No. 79-74, In re John Zerweck, final order rendered June 26, 1980, affirmed, Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th D.C.A. 1982).

The second portion of Section 112.313(7)(a) prohibits a county commissioner from having any contractual relationship which will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. Under the circumstances you have presented, where your husband or his clients have come before the County Commission approximately six or eight times in the past two years, we do not find that your ownership of stock in his engineering firm would create a frequently recurring conflict of interest or would impede the full and faithful discharge of your duties. Zerweck v. Commission on Ethics, above.

Accordingly, we find that no prohibited conflict of interest would be created were you to serve as a County Commissioner while being an officer, director, and shareholder in your husband's civil engineering corporation.

QUESTION 2:

Would a voting conflict of interest be created were you to vote as a county commissioner on matters concerning projects of your husband's engineering firm?

This question is answered in the affirmative.

With regard to voting conflicts of interest, the Code of Ethics for Public Officers and Employees provides:

Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, within 15 days after the vote occurs, disclose the nature of his 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. [Section 112.3143, Florida Statutes (1981).]

In addition, Section 286.012, Florida Statutes, provides:

No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act, and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is, or appears to be, a possible conflict of interest under the provisions of s. 112.311, s. 112.313, or s. 112.3143. In such cases said member shall comply with the disclosure requirements of s. 112.3143.

In your letter of inquiry you advise that the approval of projects by the County Commission results in financial gain for you and your husband, because after approval his work either begins or becomes much more involved, and company billing to a client takes place. Therefore, we are of the opinion that a voting conflict of interest would be presented were matters to come before the County Commission concerning projects with which the engineering firm is involved.

Under these circumstances, the statutes we have set forth above present you with two alternatives. You may vote, and file a Memorandum of Voting Conflict (CE Form 4) as provided in Section 112.3143 or, alternatively, you may abstain from voting as provided in Section 286.012. Whether to vote or to abstain is a question left to the discretion of the voting official under these statutes.

QUESTION 3:

This question is answered in the affirmative.

In your letter of inquiry you advise that your husband has not performed work for a public agency in the past but has been considered for this type of work. Proposals for work with government agencies are negotiated under the Consultants' Competitive Negotiations Act.

The Code of Ethics 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.

(d) Beginning public employment.

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

This provision would prohibit you as a County Commissioner from acting in an official capacity to purchase any services for the County from a business entity of which you or your husband is an officer, director, or owner of more than a five percent interest. We previously have advised that a member of a governing board acts in an official capacity whenever official action is taken by the group. See CEO 76-23. In addition, were the engineering firm to do business with the County Commission, you would have a contractual relationship with a business which is doing business with your agency, in violation of Section 112.313(7)(a), above. While the Code of Ethics does contain an exemption where business is awarded by a public agency through a process of sealed, competitive bidding, we have advised that this exemption does not apply where business is awarded under the Consultants' Competitive Negotiations Act. (Section 287.055, Florida Statutes). See CEO 81-28.

Accordingly, we find that a prohibited conflict of interest would be created were you to serve as a County Commissioner if your husband's civil engineering corporation were to do business with the County. Please note that even if you were to resign your position with the corporation and to turn over your stock to your husband, Section 112.313(3) would prohibit you from serving as a County Commissioner if your husband's firm were to do business with the County.