CEO 96-20 -- August 29, 1996

CONFLICT OF INTEREST

COUNTY COMMISSIONER EMPLOYED AS COORDINATOR FOR

NONPROFIT CORPORATION ACTING AS PRIVATE INDUSTRY COUNCIL

FOR THREE-COUNTY CONSORTIUM

To: (Name withheld at the person=s request.)

SUMMARY:

Under the circumstances presented, no prohibited conflict of interest is created where a county commissioner is employed as the coordinator for a private, nonprofit corporation which operates as a private industry council, even though the commissioner=s own county is one of three counties which, by interlocal agreement, formed the consortium which created the corporation. Analyzing the situation under Section 112.313(7)(a), Florida Statutes, neither the corporation nor the community college, which serves as grant recipient and fiscal agent for the corporation, is Adoing business@ with or Aregulated by@ the county commission, and there is no indication that an impediment to duty or continuing or frequently recurring conflict would be created by the circumstances presented. However, if the commissioner accepts the position, he would be precluded from serving on the 3-person executive board and would be required to abstain from voting on matters involving the consortium.

QUESTION:

Would a prohibited conflict of interest be created where a county commissioner becomes employed as the coordinator for a nonprofit corporation functioning as a private industry council under the Job Training Partnership Act of 1983?

Under the circumstances presented, your question is answered in the negative.

We are advised that you are seeking this opinion on behalf of Highlands County Commissioner . . . , who has been offered the position of Coordinator to the Heartland Workforce Investment Board, Inc., a private, nonprofit corporation which functions as a private industry council under the federal Job Training Partnership Act of 1983. We are advised, as a result of communications between you, the Commissioner, and our staff, that in November 1995 the Governor=s Office brought together representatives from DeSoto, Hardee and Highlands Counties to discuss forming a new consortium of these three counties and dissolving the previous alignment which also included Polk and Okeechobee Counties. Subsequently, a South Florida Community College dean was appointed the Apoint@ person, and the respective county commissions were advised of the proposed realignment and reorganization. Ultimately, in February 1996 the Highlands County Commission approved an interlocal agreement establishing the Heartland Workforce Investment Consortium, which is operated and managed by a three-member executive board composed of one county commissioner from each of the three counties. The Consortium=s executive board appoints 23 members to the Heartland Workforce Investment Board, Inc., and by written agreement between the two entities, South Florida Community College acts as the grant recipient and fiscal agent for all Job Training Partnership programs operated within the three-county area. You further advise that the subject County Commissioner is presently employed as a project specialist/case manager with the Job Training Partnership Act program at South Florida Community College, reporting directly to the Dean for Applied Sciences and Technologies. However, he applied for the position of Coordinator to the Heartland Workforce Investment Board, Inc., which would be reportable to both the Investment Board and the Dean. The position has been offered to him pending the outcome of this formal opinion. You further relate that this County Commissioner is not and would not be the County=s representative on the Executive Board and, thus, would have no involvement in the appointment of persons to the Heartland Workforce Investment Board, Inc. Additionally, neither the Investment Board nor the Consortium are funded by the County but, instead, receive federal and state monies to operate their programs. Matters involving the Consortium and the Investment Board would rarely come before the County Commission, we are advised. Thus, you question whether a prohibited conflict of interest would be created where the County Commissioner becomes employed as the Coordinator to the Heartland Workforce Investment Board, Inc.

The applicable statutory provision, Section 112.313(7)(a), Florida Statutes, provides:

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 (1995).]

The first part of Section 112.313(7)(a) prohibits a public officer from having an employment relationship with a business entity or agency which is doing business with or is regulated by his agency. The second part of the statute prohibits a public officer from having an employment relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or which impedes the full and faithful discharge of his public duties.

Based upon the information you have provided, it would appear that the County Commissioner, if he becomes the Coordinator, would be considered an employee of both South Florida Community College and the Heartland Workforce Investment Board, Inc. The question, then, is whether either of these two entities are Aregulated by@ or Adoing business@ with the Highlands County Commission.

With regard to the Community College, there is no indication that the Highlands County Commission Aregulates@ the College. See CEO 79-59. As for whether there are any contractual obligations between Highlands County and South Florida Community College that could constitute Adoing business@ for purposes of this provision, in CEO 87-19 we opined that intergovernmental relationships (there involving a county commission and a state university) did not constitute Adoing business@ within the contemplation of Section 112.313(7)(a). Thus, we are of the opinion that no conflict is created under the first part of Section 112.313(7)(a) with regard to the County Commissioner=s employment with the Community College.

Examining the relationship between the County Commission and the Investment Board, in CEO 85-60 we opined that a county commission did not Aregulate@ a hospital district, notwithstanding its appointment authority over the district=s board of trustees and its financial oversight of the nonprofit corporation leasing property from the hospital district. Based upon the rationale of that opinion, as well as the more factually analogous CEO 81-5, which involved a school board member who was employed by another school district as the supervisor of a regional center serving five counties in addition to his own, we do not believe that the Investment Board is Adoing business@ with or is Aregulated@ by the Highlands County Commission.

Having cleared that hurdle, we must next address whether the County Commissioner=s proposed employment would create a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or impede the full and faithful discharge of his public duties, which the second part of Section 112.313(7)(a) prohibits. We recognize that one of the County Commissioner=s fellow Commission members sits by designation on the Consortium=s Executive Board, and it is the Executive Board which makes appointments to the Investment Board. However, we also have been advised that neither the Consortium nor the Investment Board receive funding from Highlands County, and matters involving the Investment Board and the Consortium rarely come before the County Commission. As in CEO 81-5, it does not appear that any action of the County Commission could unduly affect the Coordinator=s position with the Investment Board or the Community College, as the County is but one member of the Consortium. Additionally, there is no suggestion that the County Commissioner would be in a position to benefit privately from the work he performs as Coordinator and, indeed, there may even be a unity of interests arising from the common goals of workforce development and training as envisioned by the federal Job Training Partnership Act. Therefore, no prohibited conflict would be created under the second part of Section 112.313(7)(a) should the County Commissioner be offered, and accept, employment as Coordinator to the Heartland Workforce Investment Board, Inc. However, if the Commissioner accepts employment as the Coordinator, he is precluded from also serving as his county=s designated member of the Executive Board.

We would caution the County Commissioner to avoid using his County Commission office to further his personal interests as Coordinator for the Investment Board, as Section 112.313(6), Florida Statutes, prohibits public officials from corruptly misusing their positions. See CEO 94-23. Also, Section 112.3143(3), Florida Statutes, would prohibit the County Commissioner from voting in certain situations, including when the matter being voted on inures to his special private gain or loss or to the special private gain or loss of a principal by whom he is retained. The Commissioner must therefore refrain from voting as a County Commissioner in matters involving the Consortium, and must file the appropriate disclosures as mandated by Section 112.3143(3), Florida Statutes.

Accordingly, under the circumstances presented we find that no prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a county commissioner to accept employment as the coordinator to a private, nonprofit corporation acting as the private industry council for a three-county consortium.

ORDERED by the State of Florida Commission on Ethics meeting in public session on August 29, 1996, and RENDERED this 3rd day of September, 1996.

_________________________________

Mary Alice Phelan

Chair