CEO 98-24 -- December 3, 1998
CONFLICT OF INTEREST; VOTING CONFLICT
CITY COUNCIL MEMBER OCCASIONALLY PREACHING AT CHURCH
SELLING PROPERTY TO CITY AND VOTING ON CHURCH MEASURES
To: Robert Michael Eschenfelder, Assistant City Attorney, City of St. Petersburg
SUMMARY:
A city councilman who occasionally preaches at a church of which he is a member is not subject to the voting conflicts law regarding measures inuring to the special gain or loss of the church. Under the circumstances of this opinion, the church is not a principal by which the councilman is retained.
In addition, the situation would not be violative of either Section 112.313(3) or Section 112.313(7)(a), Florida Statutes. CEO=s 83-70, 83-93, 84-50, and 90-24 are referenced.
QUESTION 1:
Is a church at which a city councilman occasionally preaches, and which sometimes provides the preacher/councilman with a modest stipend for his efforts, a principal by which the member is retained, for purposes of the voting conflicts law codified at Section 112.3143(3)(a), Florida Statutes?
Under the circumstances set forth herein, your question is answered in the negative.
By your letter of inquiry and additional correspondence, we are advised that . . . . (ACouncilman@) serves as a member of the St. Petersburg City Council. In addition, we are advised that the Councilman belongs to a local church (incorporated as a nonprofit entity), at which he occasionally preaches.[1]
Regarding the preaching (which we are advised began in 1995), we are advised that the Councilman is not the church=s pastor,[2] that he is not a member of any deacon/director board of the church, and that he preaches (gives a sermon) some six times per year, for which he is sometimes paid a Astipend@ that varies in amount per sermon/occurrence (usually seventy-five dollars per sermon).[3] Further, we are advised that these occasional payments are Anot paid in the form of wages,@ that no taxation withholding amounts are taken out from the payments, and that the Councilman is not listed on the church=s books as an employee. Also, we are advised that the Councilman receives the occasional invitation to preach from a church official, that he is asked to preach because he possesses the religious credentials which, in his faith, permit him to preach to a congregation, that he shares this preaching privilege with some fifteen to seventeen other members of the church, that he has no right to demand a turn at preaching, and that he is asked to preach at the sole discretion of church officials. In addition, we are advised that the Councilman is asked to preach about the same number of times per year as the other fifteen to seventeen preaching members, that he has no expectation of continued ability to preach for a stipend, that he has the absolute ability to decline a preaching invitation, that when he preaches there are no contracts signed and no terms discussed, that the church is not legally obligated to pay the stipend, and that it simply is a religious mandate of his faith that those who preach are given a stipend from the congregation.
Further, we are advised that the Councilman is employed full-time with a car rental agency, that he receives pay for his position on the City Council, and that the monies he receives from the occasional preaching at his church account for only about one percent of his yearly income. Additionally, we are advised that the Councilman has been invited to preach at other churches of the same faith, and that he is at times, but not always, paid for these sermons as well.
Section 112.3143(3)(a), Florida Statutes, provides:
No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(3); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her 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.
This statute would prohibit the Councilman from voting on, and would require his revelation of interest and filing of CE Form 8B regarding, measures inuring to the special gain or loss of the church, if, at the time of consideration of such a measure, the church is a principal by which the Councilman is retained. However, while we have had occasion to construe the voting conflicts law in myriad contexts concerning the issue of whether a person or entity is a principal by whom a public officer is retained, your inquiry appears to be one of first impression.
Following the assertions of your inquiry, we find that the Councilman=s situation does not fit traditional notions of Aretention.@ Neither, in our opinion, do his circumstances fit traditional notions of a paid or retained Aagency@ in behalf of the church as a business entity. On numerous occasions we have found that noncompensated service for a nonprofit entity does not make the entity a principal retaining the official (see, inter alia, CEO 83-70, CEO 83-93, and CEO 84-50). Perhaps most important is the reality, as represented to us, that Athe church is not legally obligated to pay the stipend and that it is simply the religious mandate of his faith that those who preach are given a stipend from the congregation,@ that convinces us that the modest amounts that occasionally come to the Councilman for preaching are in essence a gratuity based on congregational generosity rather than monies to which he has a legally-enforceable right for status/time obligated or set aside or for services rendered, as is the case with agents and employees engaged in business or sustaining a livelihood.[4]
Accordingly, under the circumstances recited herein, we find that the church is not a principal by which the Councilman is retained, and that he therefore is not subject to the voting conflicts law in regard to Council measures inuring to the special private gain or loss of the church.
QUESTION 2:
Does the Councilman=s occasional preaching constitute employment or a contractual relationship violative of Section 112.313(7)(a), Florida Statutes?
This question is answered in the negative.
For the reasons stated above, we find that the Councilman=s occasional preaching as described herein constitutes neither employment nor a contractual relationship. Thus, Section 112.313(7)(a), Florida Statutes, would not be violated by the Councilman were his church to do business with the City Council by, for example, selling the property in question to the City.[5]
This question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on December 3, 1998 and RENDERED this 8th day of December, 1998.
__________________________
Charles A. Stampelos
Chairman
[1] Potential measures affecting the church which may come before the City Council involve possible City efforts, prompted by concerned neighborhood residents, to prevent a piece of property, acquired by the church some years back, from becoming the site of a major retail facility.
[2] By telephone, you advised our staff that the church has a regular pastor who receives salary, housing, and all of the usual compensation and benefits attributable to employed clergy.
[3] The letter of inquiry indicates that the Councilman=s preaching at his church occurs approximately six times per year, and that a stipend is provided the Councilman on approximately two to six of these occasions.
[4] We note that the Councilman=s occasional preaching situation is readily distinguishable from the church=s regular pastor=s employment with the church, clearly a situation in which the pastor is retained by the church.
[5] Your inquiry states that the Councilman holds no officer-like or director-like role in the church/nonprofit corporation, and there is no indication that he would be acting in a private capacity as a Asalesman@ or otherwise to sell church property to the City; thus, Section 112.313(3), Florida Statutes, is not implicated in your inquiry. Also, it is our view that membership in a church does not violate Section 112.313(3), regarding sales from one=s church to one=s governmental entity (see CEO 90-24).