CEO 89-59 -- October 26, 1989

CONFLICT OF INTEREST

DEPARTMENT OF COMMUNITY AFFAIRS EMPLOYEE SERVING AS

PRESIDENT OF NONPROFIT HOUSING FOUNDATION APPLYING FOR

GRANT MONEY ADMINISTERED BY THE DEPARTMENT

To: Thomas G. Pelham, Secretary, Department of Community Affairs (Tallahassee)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, if a Community Assistance Consultant in the Bureau of Housing, Department of Community Affairs, serves as president of a local nonprofit housing foundation which has applied for a grant administered by a different Bureau of the Department.

QUESTION:

Would a prohibited conflict of interest be created where a Community Assistance Consultant in the Bureau of Housing, Department of Community Affairs serves as president of a local nonprofit housing foundation which is applying for a grant administered by another bureau in the employee's division?

Your question is answered in the negative.

In your letter of inquiry, you advise that Mr. Buster Case, an employee of the Department of Community Affairs, is also the president of a local nonprofit housing foundation. He is a Community Assistance Consultant in the Division of Housing and Community Development. When this Division's pending reorganization is approved, he will be an employee in the new Bureau of Housing. The other bureau in that Division, the Bureau of Economic and Community Assistance, will be responsible for a variety of programs providing financial assistance to local governments.

As a Community Assistance Consultant, the subject employee's job responsibilities include providing technical assistance to local building departments, design professionals, and the general public with respect to the State minimum building codes, handicapped accessibility requirements, and the Radon Protection Program. As an employee of the Codes and Standards Section withinthe Bureau of Housing, he has no formal contact with individuals or organizations which may apply for grants or loans administered by other Department of Community Affairs programs.

The employee is also a member and a volunteer in a local housing foundation which is a private, nonprofit organization specializing in providing emergency repairs to substandard housing in the Tallahassee area. In November of 1989, the employee is scheduled to become the new president of this organization.

Although a large portion of the foundation's operating funds are derived from donations and other private sources, the organization recently has applied for a grant from the new Florida Fix Program. The Florida Fix Program is to be administered by the Department's Bureau of Economic and Community Assistance. The grant applications for this program are being evaluated by the Governor's Energy Office, with representation from the Department of Community Affairs on a review committee. The subject employee does not participate in the review of grant applications.

You wish to know if the employee will have a prohibited conflict of interest should the housing foundation be successful in obtaining a grant award through the Florida Fix Program. In regard to your question, Section 112.313(7)(a), Florida Statutes, states:

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) only prohibits certain employment or contractual relationships. As the subject employee serves only as a volunteer for the Foundation and is not paid for his services, it does not appear that he has an employment or contractual relationship with the organization. Therefore, Section 112.313(7)(a) would not prohibit him from serving as president. See, for example, CEO 89-12.

We also note that the subject employee will be employed in the Bureau of Housing and not in the Bureau of Economic and Community Assistance, the latter being responsible for the administration of the grant awards in the Florida Fix Program. We have not been provided with information to indicate that the employee will in any way participate in the review of the grant awards or in the administration of the grants. We therefore do not believe that serving as president of the local housing foundation would interfere with or impede the employee's proper performance of his public duties.

However, we do caution the employee to remove himself from any Departmental decision-making which involves the administration or grant of public funds to the Foundation and to remove himself from participation in his public capacity regarding any request by the Foundation to receive such funds. His participation in such matters could give the appearance of impropriety and possibly result in allegations of a violation of Section 1112.313(6), Florida Statutes, which states:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

Accordingly, we find that under the circumstances described a prohibited conflict of interest would not be created if the Community Assistance Consultant in the Bureau of Housing were to serve as president of a local nonprofit housing foundation receiving a grant under the Florida Fix Program.