CEO 78-98 -- December 21, 1978

CONFLICT OF INTEREST

CITY OR COUNTY COMMISSIONER SERVING ON BOARD OF DIRECTORS OF NONPROFIT CORPORATION WHERE DIRECTORS ARE APPOINTED BY THE CITY AND THE COUNTY AND WHERE FUNDING IS PROVIDED BY THE CITY AND THE COUNTY

To: Richard Hagin, Attorney, Bushnell

Prepared by: Phil Claypool

SUMMARY:

In previous advisory opinions of the Commission on Ethics, it consistently has been found that membership on the board of directors of a nonprofit organization does not constitute an employment or contractual relationship within the terms of s. 112.313(7)(a), F. S. 1977. Remaining of this view, the commission finds no prohibited conflict of interest to be created where a city commissioner, county commissioner, or city manager is appointed by the county or city to serve on the board of directors of a nonprofit corporation funded by the city and county.

QUESTION:

Would a prohibited conflict of interest be created were a city commissioner, county commissioner, or city manager to be appointed by the city or the county to serve on the board of directors of a nonprofit corporation funded by the county and the city?

Your question is answered in the negative.

In your letter of inquiry you advise that the Sumter County Development Council, Inc. is a nonprofit corporation established primarily to attract industry to Sumter County and the five incorporated municipalities therein. You also advise that each municipality appoints one member to the board of directors of the council, the board of county commissioners appoints five members to the board of directors, and the Sumter County grants coordinator serves as a member of the board of directors by virtue of her office. In your letter of inquiry and in a telephone conversation with our staff, you advise that each director serves a 1-year term and is eligible to succeed himself or herself; the members of the board of directors receive no compensation or other remuneration for their services. In addition, you advise that the development council is funded totally by the county and the various municipalities with funds budgeted for membership in the corporation by the county commission, the various city commissions and councils, and in one case, the city manager.

The Code of Ethics for Public Officers and Employees, in s. 112.313(3), F. S. 1977, prohibits a public officer from serving as a director of a business entity which sells, rents, or leases any realty, goods, or services to his own agency. Although the corporation is funded by various public agencies, under the facts you have described the corporation is not leasing or selling any goods or services to the county or to any of the municipalities. Therefore, s. 112.313(3) does not apply.

The Code of Ethics also provides as follows:

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), F. S. 1977.]

In previous advisory opinions we have found consistently that membership on the board of directors of a nonprofit organization does not constitute an employment or contractual relationship within the terms of this provision of the Code of Ethics. Thus, in CEO 77-164, we found that a county commissioner could be a member of the board of directors of a nonprofit organization which contracted with the board of county commissioners to provide services under a grant; and, in CEO 77-167, we found that a city commissioner could accept membership on the board of trustees of a nonprofit corporation which leased property from the city.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit a city commissioner, county commissioner, or city manager from being appointed by the county or the city to serve on the board of directors of a nonprofit corporation funded by the city and the county.