CONFLICT OF INTEREST
MEMBER OF PERSONNEL BOARD LEASING SPACE TO COUNTY
To: Name withheld at person's request
SUMMARY:
A prohibited conflict of interest would be created under Section 112.313(3) and (7), Florida Statutes, were a member of the Pinellas County Unified Personnel System Board to lease office space to Pinellas County.
QUESTION:
Would a conflict of interest exist were a member of the Pinellas County Unified Personnel System Board to lease office space to Pinellas County?
Your question is answered in the affirmative.
In your letter of inquiry, additional materials supplied to this office, and telephone conversations between you and your staff and ... and this office, you advise that ... is a member of the Pinellas County Unified Personnel System Board ("Board"). The Board was created by the Pinellas County Unified Personnel Act[1] to establish a personnel system for employees of the Board of County Commissioners, Clerk of the Circuit Court, Property Appraiser, Supervisor of Elections, and Tax Collector[2]. The Act establishes a classified service which encompasses all positions in the enumerated agencies (except for certain specified exempt positions) and provides that the Board administer the Act, make rules, oversee personnel transactions and reclassifications, and hear appeals. The Act makes the Board the final authority in all personnel actions.
The Board consists of seven members, two appointed by the Board of County Commissioners, two by the Clerk, Property Appraiser, Supervisor of Elections, and Tax Collector acting as a body, and two by the Employee Advisory Council[3]. The seventh member is appointed by the other six. The Board meets once a month, and members receive a $100 stipend for each meeting attended--$150 if they chair the meeting.
You state that the member in question was appointed in 2003 and reappointed in 2005 by the Clerk, Property Appraiser, Supervisor of Elections, and Tax Collector acting as a body. The member's IRA holds property which includes an office building, and the member would like to lease space in the building to the County, probably to house one of the departments under the County Administrator. While the precise terms of the lease have not been established, it is anticipated that it will be for about 1,500 to 2,000 square feet of office space, or about 15-20 percent of the total space in the building. The lease price will be $13 per square foot per year, with the resulting income to the member approximately $20,000 per year, about $2,000 of which will be profit. You advise that the profit will represent approximately .5% of the member's total annual income.
You inquire whether the leasing arrangement will cause a prohibited conflict of interest.
Section 112.313(3), Florida Statutes, provides:
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
The first part of this section prohibits a public officer from acting in his official capacity to purchase, rent, or lease any goods, services, or realty from a business entity in which he is an officer or director or in which he owns a material interest.[4] The second part prohibits a public officer from acting in his private capacity to sell, rent, or lease any goods, services, or realty to his public agency or to the political subdivision in which his agency is located.
Section 112.312(2), Florida Statutes defines "agency" as "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." Therefore, the member's "agency" for purposes of this provision is the Personnel Board. Compare, CEO 90-7 (agency of city planning board member is the planning board, not the city) and opinions cited therein. While the member would not be leasing to his own agency, by renting office space to the County, he would be leasing to the political subdivision he serves. Thus, a conflict would exist under Section 112.313(3), Florida Statutes.
The Code of Ethics also provides:
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.--(a) 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), Florida Statutes.]
The first part of Section 112.313(7) prohibits a public officer or employee from having a contractual relationship with any business entity doing business with his agency. Since, as discussed, the County rather than the Personnel Board would be the lessee, the member would not be "doing business" with his own agency, and the first part of the statute is inapplicable here.
The second part of Section 112.313(7) prohibits a public officer from having any contractual relationship which would 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. This provision establishes an objective standard which requires an examination of the nature and extent of the public officer's duties together with a review of his private interests to determine whether the two are compatible, separate and distinct, or whether they coincide to create a situation which "tempts dishonor." Zerweck v. Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982).
You advise that the Personnel Board enacts and amends personnel rules relating to, among other things, hiring, promotion, pay scales and overtime. In addition, it establishes criteria for positions, establishes and eliminates positions, and hears appeals. You state that the Board's actions with respect to matters other than appeals are generally uncontested and that the Director of Personnel typically works with the various appointing authorities and the Employee Advisory Council to reach consensus so that by the time the matter reaches the Board for approval, it is unopposed. As to appeals, you advise that they constitute a very small percentage of the Board's work, averaging only two or three a year since 1998. However, because of their nature, you add, the appeals consume about 50 percent of the Board's time. Additionally, approximately 90 percent of the appeals deal with County employees (as opposed to employees of the Clerk, Property Appraiser, Supervisor of Elections or Tax Collector).
In CEO 85-56, we found that a conflict of interest would exist were an employee of a regulated municipality to serve on the governing board of the water authority having jurisdiction over the municipality. We found there that a temptation would exist for the employee to favor his employer in decisions which might affect the city. We observed that in Section 112.311(1), Florida Statutes,
the Legislature declared it to be their intent and policy underlying the Code of Ethics that public officials be both independent and impartial. We do not mean to imply that Mr. Bollinger intentionally would favor his employer; however, we feel that a tendency in that direction would exist even in the absence of any overt partiality. This is the essence of a conflict of interest which the Code of Ethics seeks to avoid.
In a slightly different context, we have recognized that a public officer's or employee's desire to maintain a harmonious and productive private relationship with those whose interests he can affect in his public capacity may give rise to a conflict of interest under the second part of Section 112.313(7), Florida Statutes. For example, in CEO 88-25 we found that a conflict would exist were a district medical examiner to appoint as an associate medical examiner a member of a professional association of which the district medical examiner was a member.
There is a potential here that, because of the lease agreement, the member may be tempted to side with the County on issues before the Board. His financial interest in maintaining good relations with the County, while not overwhelming, is certainly substantial, and his opportunity to affect matters in which the County has an interest, particularly in the case of appeals, is significant. Viewing the facts you have described in light of the principles set forth above and the intent of the law, it seems to us that the circumstances would present the member with a "temptation to dishonor" his public responsibilities. We hasten to add that we do not mean by this opinion to impugn the personal integrity of the member or to suggest that he would yield to the temptation recognized by the statute. The statute does not require an actual transgression; it is preventive.
Accordingly, we find that a prohibited conflict of interest would exist were a member of the Pinellas County Unified Personnel System Board to lease office space to Pinellas County.
ORDERED by the State of Florida Commission on Ethics meeting in public session on September 1, 2005 and RENDERED this 7th day of September, 2005.
__________________________
Thomas P. Scarritt, Jr.
Chair
1 Chapter 77-642, Laws of Florida, as amended by Chapters 89-419 and 95-474,Laws of Florida.
2 You advise that the Board provides personnel services for a total of eleven "appointing authorities": the County Administrator, the County Attorney, the Tax Collector, the Property Appraiser, the Supervisor of Elections, the Clerk, the Personnel Director, the Office of Human Rights, the Office of Information Technology, the Pinellas Planning Council, and the Pinellas County Licensing Board.
3 The Employee Advisory Council, also established by Chapter 77-642, is a board consisting of 15 members of the classified service, selected by their co-workers and charged with developing and recommending ideas related to working conditions, morale, public image, efficiency, employee safety, and employee benefit programs.
4 Defined at Sec. 112.312(15), Fla. Stat., to mean "direct or indirect ownership of more than five percent of the total assets or capital stock of any business entity."