CEO 03-4 -- April 25, 2003

CONFLICT OF INTEREST

CITY COUNCIL MEMBER EMPLOYEE OF BUSINESS OPERATING PRO SHOP AT CITY GOLF COURSE

SUMMARY:

Strictly limited to the particular circumstances of this opinion, a prohibited conflict of interest does not exist where a city council member is employed by a business running a pro shop at a city-owned golf course under an agreement with the city.  Under Section 112.313(7)(a), Florida Statutes, the member holds employment with a business entity doing business with the city; but a "grandfathering" is present under Section 112.316, Florida Statutes, to negate the conflict.  Although the member served on the council when the city became a party to the agreement, he did not begin his private employment until many years later, just before he ended a long period in which he did not serve; and a change in the agreement during the member’s current term was handled by the city administrator.  CEO’s 02-19, 02-14, 96-31, and 82-10 are referenced.

QUESTION:

Does a prohibited conflict of interest exist under Section 112.313(7)(a), Florida Statutes, where a member of a city council is employed by a corporation which operates a pro shop at a city-owned golf course under an agreement between the corporation and the city?

Under the circumstances set forth in your inquiry and strictly limited to the circumstances, this question is answered in the negative.

By your letter of inquiry, a letter from our staff responding to your inquiry, a subsequent letter from you to our staff, and additional materials provided by you to our staff, we are advised that you make inquiry in behalf of Richard P. Fazzone, a member of the City Council of the City of Arcadia ("member").  Further, we are advised that the member held a seat on the Council in 1991 when the City entered into an agreement with a corporation to operate a pro shop serving the City-owned golf course; that he resigned from the Council in 1993; that in July 2001 he became an employee of the corporation, working at the pro shop; that in September 2001 he was elected to the Council, taking office October 1, 2001; and that in September 2002 the City (through action of its administrator and not action of the Council) raised the base rate paid the corporation by the City under the agreement in the amount of fifty dollars per month.

Under the agreement, you advise, the corporation is paid a base rate of two hundred fifty dollars per month (plus one percent of payroll to cover unemployment tax) by the City; the corporation operates the pro shop, pays pro shop employees (including the member), issues W-2 Federal tax forms, collects greens fees, membership fees, and cart rental fees; the corporation handles purchase and sale of all pro shop merchandise, sells food and beverages, and remits sales taxes to the State; and the City’s Parks and Recreation Department maintains the golf course.

The Code of Ethics for Public Officers and Employees[1] provides in part[2]:

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 . . .; 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.]

CONSTRUCTION.—It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his or her duties to the state or the county, city, or other political subdivision of the state involved.

In so doing, we find that Section 112.316 "grandfathers" the agreement.  While our existing decisions seem to require for a "grandfathering" the existence of factors not present regarding the member [see, for example, CEO 96-31, CEO 82-10, CEO 02-14 (Question 2) and CEO 02-19 (footnote 4)], we nevertheless find "grandfathering."  In the instant situation, the member was not employed with the corporation when it and the City became parties to the agreement; thereafter the member did not serve on the Council for a long period; he then became an employee of the corporation long after his original Council service but before his recent election to and service on the Council; and recently the City Administrator, not the Council, made the fifty-dollar-per-month change regarding the corporation.

Accordingly, under the limited circumstances of this opinion, we find that no prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, exists for the subject Council Member due to his employment with the corporation

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 24, 2003 and RENDERED this 25th day of April, 2003.

____________________
Patrick Neal
Chair

DOING BUSINESS WITH ONE'S AGENCY. No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's 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 the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she 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 or when such offices are on property wholly or partially owned by the legislator.  This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a)       October 1, 1975.

(b)       Qualification for elective office.

(c)       Appointment to public office.

(d)       Beginning public employment.