CEO 02-4 -- January 29, 2002

CONFLICT OF INTEREST

SCHOOL DISTRICT'S DIRECTOR OF MINORITY BUSINESS AFFAIRS SERVING AS A MEMBER OF THE CITY COUNCIL

To: (Name withheld at person's request.)

SUMMARY:

No prohibited conflict of interest would be created by the election of the Director of Minority Business Affairs for the Duval County Schools to a seat on the Jacksonville City Council. Inasmuch as the position of City Council member constitutes the holding of an office, rather than an employment or contractual relationship, and inasmuch as intergovernmental agreements and dealings between governmental entities do not constitute "doing business," no prohibited conflict of interest under the first part of Section 112.313(7)(a), Florida Statutes would be created by her election to the City Council. In addition, because her position with the School District does not require the Director to interact with City officials or staff, no prohibited conflict under the second part of Section 112.313(7)(a) is found either. Section 112.313(10)(a), Florida Statutes, also would not prohibit the Director's continued employment with the School Board while serving as a member of the City Council, because the School Board is separate and distinct from, or independent of, the City Council.

Because the School Board, the Director's principal, is an "agency" exempted from the voting restrictions of Section 112.3143(3), Florida Statutes, the Director would not be prohibited from voting, as a member of the City Council, on matters inuring to the special gain of the School Board.

QUESTION:

Would a prohibited conflict of interest be created were you, the Director of Minority Business Affairs ("MBA") for the Duval County School System, to be elected to a seat on the Jacksonville City Council?

Your question is answered in the negative.

We are advised that your opinion request stems from your desire to declare your intention to run for election to a seat on the Jacksonville City Council. If elected, you write, you would like to retain your position as the Director of Minority Business Affairs for the Duval County Public Schools, an "appointed contractual position" which is approved annually by the Duval County School Board. Included among your duties and responsibilities, we are advised, are developing, maintaining, implementing, and monitoring the School Board's Minority Business Development and Assistance Program and working with procurement, engineering, and other School Board contracting personnel to implement the program. You relate that your position does not require you to interact with City of Jacksonville officials or staff.

Relevant to your inquiry are the following provisions of the Code of Ethics for Public Officers and Employees:

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 or she is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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 or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.]

EMPLOYEES HOLDING OFFICE.--No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his or her employer while at the same time, continuing as an employee of such employer. [Section 112.313(10)(a), Florida Statutes.]

VOTING CONFLICTS.--No county, municipal, or other local public officer shall vote in an official capacity upon any measure which inures 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 the officer 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. [Section 112.3143(3)(a), Florida Statutes.] [E.S.]

Section 112.313(7)(a), Florida Statutes, prohibits you from having an employment or contractual relationship with a business entity which either is doing business with or is subject to the regulation of your agency. It also prohibits you from having any contractual relationship or outside employment that creates a continuing or frequently recurring conflict of interest or impediment to the proper performance of your public duties. "Conflict of interest" is defined at Section 112.312(8), Florida Statutes, to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest."

We previously dealt with the very same issue that you present in CEO 92-39. There, we opined that no prohibited conflict of interest would be created were a member of a city council to serve as an assistant school superintendent. Initially, we found that the assistant school superintendent's public Aagency@ was the school board by virtue of his employment by the School Board, as well as the city council by virtue of his membership on the city council. Similarly, we find that your public agencies would be both the School District, by virtue of your position as Director of the MBA program for the District, and the City Council, by virtue of your election to a seat on the City Council.

Next, we determined that the assistant school superintendent/city council member did not hold an employment or contractual relationship with a business entity or agency which was subject to the regulation of, or which was doing business with, either of his public agencies. Since we previously opined that the position of city council member constitutes the holding of an office, rather than an employment or contractual relationship, we were required to determine whether the school board, the employing agency, was subject to the regulation of, or was doing business with, the city council for purposes of analyzing the scenario under the first clause of Section 112.313(7)(a). There, we concluded that the city did not regulate the school board as a result of the school board's having to abide by the city's land-use and/or zoning ordinances, and reiterated our prior pronouncement that, generally, intergovernmental agreements and dealings between governmental entities do not constitute "doing business" for purposes of the first part of Section 112.313(7)(a), Florida Statutes. We also reiterated that the purpose of the Code of Ethics is to prevent private gain at public expense, not to prevent dealings between governmental entities. Consequently, we opined that no conflict existed under the first clause of Section 112.313(7)(a).

Similarly, we have been provided with no information that would lead us to deviate from our reasoning in CEO 92-39 and conclude that the School Board by which you are employed is regulated by, or is doing business with, the City Council so as to create a prohibited conflict of interest under the first part of Section 112.313(7)(a) were you to be elected to a seat on the City Council.

With respect to the second clause of Section 112.313(7)(a), because you have indicated that your position as Director of the MBA program for the School Board does not require you to interact with City officials or staff, we also conclude that no violation of the second part of Section 112.313(7)(a) would be created by your election to a seat on the City Council.

You also have asked whether a voting conflict of interest would be created were you to vote as a member of the City Council on matters affecting the School District. Section 112.3143(3)(a) would prohibit you, as a member of the City Council, from voting on measures which would inure to your private gain or loss or to the special gain or loss of a principal by which you are retained, unless your principal is an "agency" as defined in Section 112.312(2), Florida Statutes. Section 112.312(2) defines "agency" to mean

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.

Because the School Board, your principal, is an "agency" exempted from the voting restrictions of this provision, we find that you would not be prohibited from voting, as a member of the City Council, on matters inuring to the special gain of the School Board. See CEO 91-20 and CEO 94-28.

Finally, Section 112.313(10)(a), Florida Statutes, prohibits an employee from holding office as a member of the governing board which is his employer while concurrently continuing as an employee of such employer. For example, in CEO 76-83 we found that an employee of a school district would be prohibited from sitting on the board of that same school district. We also concluded that because a district school board constitutes the governing body of a political subdivision separate and distinct from a board of county commissioners, Section 112.313(10)(a) would not be violated were an employee of a school district to be elected to the board of county commissioners. Here, because you are employed by the Duval County Public Schools, which is separate and distinct from, and independent of, the City Council, we are of the opinion that Section 112.313(10)(a) would not prohibit your continued employment by the School Board while you serve as a member of the City Council.

Accordingly, we find that no prohibited conflict of interest would be created by your being elected to the Jacksonville City Council; nor would you be prohibited from voting as a member of the City Council on matters that inure to the special gain or loss of the School Board.

Because our jurisdiction is limited to interpreting Article II, Section 8, of the State Constitution, and Part III of Chapter 112, Florida Statutes, we are unable to opine on whether the scenario that you present violates other portions of the Florida Statutes outside of the Code of Ethics or District School Board policy. Therefore, we recommend that you contact the School District for advice regarding any further questions that you may have pertaining to your proposed candidacy for a seat on the City Council.

ORDERED by the State of Florida Commission on Ethics meeting in public session on January 24, 2002 and RENDERED this 29th day of January, 2002.

__________________________

Ronald S. Spencer, Jr.

Chair