CEO 06-2 -- March 8, 2006

CITY HOUSING AUTHORITY COMMISSIONER MANAGER OF TUTORING SITE OF CHILD EDUCATION PROGRAM ADMINISTERED BY STATE UNIVERSITY

Under the particular circumstances of this inquiry, no prohibited conflict of interest exists where a resident commissioner of a city housing authority continues to work part-time, under a federally-funded program administered by a State university, as a manager of a program tutoring site located at an authority complex. The commissioner's holding the part-time employment prior to her being appointed as a commissioner, the administration of the program under which she is employed being conducted by the university and not the authority, the nominal involvement of the authority regarding the program, and the modest compensation received for the part-time service support the application of Section 112.316, Florida Statutes, to negate any conflict under Sections 112.313(3), 112.313(7)(a), and 112.313(10), Florida Statutes. CEO 84-101 and CEO 95-23 are referenced.¹

Does a prohibited conflict of interest exist where a commissioner of a city housing authority continues part-time employment (begun before she was appointed as a commissioner), under a federally-funded program administered by a State university, as a manager of a tutoring site located at an authority complex?

Under the particular circumstances of this inquiry, this question is answered in the negative.

By your letter of inquiry, correspondence from the attorney for the Gainesville Housing Authority (GHA, Authority), written materials provided to our staff, and telephone conversations between our staff and you and between our staff and the attorney for the Authority,² we are advised that Christine Flowers (Commissioner) serves as the statutorily-required resident commissioner on GHA's governing board, having been appointed by the Mayor of the City of Gainesville in January 2005. In addition, we are advised that the Commissioner (who has been a resident of a GHA housing project since 1992) also serves (beginning in 1998) as a manager³ of a site (located in a community center adjacent to her home) for the delivery of federally-funded tutoring to at-risk children, under a program administered by a State university. More particularly, we are advised that the program provides academic assistance to young, at-risk school children, that it operates at several GHA sites (including the site at which the Commissioner resides), that all program employees (including the Commissioner) are selected and supervised by a professor employed by the university, and that GHA has no involvement in the management or administration of the program,⁴ other than to allow the tutoring site to operate on its property and to handle the program's federally-derived funds through its accounting department.⁵

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.

Although application of Section 112.313(10) is not limited to governing bodies/employees of cities, municipalities, or similar government entities or personnel, but, rather, also can include situations concerning less traditional government bodies such as authorities (see CEO 84-101, hospital authority), we find, based on Section 112.316, Florida Statutes [another provision of the Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes)], that it does not require the Commissioner to give up one position or the other in the instant situation. Section 112.316 provides:

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.

Despite the presence of a "convenience checking account" and a W-2 form (a form relevant for federal taxation purposes and not for purposes of the issues of direction, control, and supervision directly relevant to the larger question of employment/employer) listing GHA as the Commissioner's employer, we find that, under the particular circumstances of this inquiry, a reading of Section 112.313(10) in isolation to find that GHA is the Commissioner's employer vis-a-vis her capacity as a program site manager would not be proper, given that the real direction, supervision, and control of her is by the university and is not by GHA and given that her holding the site manager position predates her being a GHA Commissioner.

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.

We find that a prohibited conflict does not exist under the first part of the statute by virtue of the Commissioner's work as a site manager because the first part would require for a conflict that the provision of services to the Commissioner's public agency (GHA) be from a "business entity," statutorily defined not to include another public "agency" such as the university.⁶ Also, we find that a prohibited conflict does not exist under the second part of the statute because the Commissioner is not acting in a private capacity to rent, lease, or sell services to GHA or to the City; rather, the Commissioner is working for the program under the direction and control of a university professor, with the university providing tutoring at a GHA location. See CEO 95-23 (county juvenile welfare services board member employee of state university contracting with board).

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.

We find that a prohibited conflict does not exist under the statute by virtue of the Commissioner's work under the program. Regarding the first part of the statute, we do not find that GHA is "regulating" the university, a unit of Florida's State University System whose members have their own governing boards who interface with the State Board of Education; and we do not find that the university (an agency with which we have found the Commissioner holds employment) is "doing business with" her public agency (GHA). See CEO 95-23, in which we found that relationships between public agencies similar to the relationship between GHA and the university amount to intergovernmental agreements entered into for the public good rather than business dealings for private benefit. Further, under the particular circumstances of the instant inquiry, we do not find that the Commissioner's work regarding the tutoring program creates a continuing or frequently recurring conflict between her private interests and the performance of her public duties or impedes the full and faithful discharge of her public duties under the second part of Section 112.313(7)(a).

Accordingly, we find, under the particular circumstances of this opinion, that a prohibited conflict of interest does not exist by virtue of the Commissioner's employment as a manager of a tutoring site on a GHA property.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 3, 2006 and RENDERED this 8th day of March, 2006.

^[1] For prior opinions of the Commission, go to www.ethics.state.fl.us
^[2] Based upon this contact and information, it is our understanding, via our staff, that both Ms. Flowers personally and the City Commission of the City of Gainesville (which has the power to remove GHA Commissioners) seek our opinion in this matter.
^[3] We are advised that the Commissioner (as a program tutoring site manager) is paid monthly but that she does not receive any GHA employee benefits; and that her duties include making certain that the center is unlocked and open to receive students and staff during normal operating hours, monitoring the conduct and behavior of the students while they are at the site, cleaning and maintaining the facility, and closing and securing the center after normal operating hours.
^[4] The attorney for the Authority advises, via telephone contact with our staff, that the Authority's governing board, of which the Commissioner is a member, does not vote to seek the federal funding for the program and does not vote to enter into the intergovernmental relationship with the university regarding the program. Rather, he advises that a federal agency (H.U.D.) and the Authority's executive director correspond (as they have for a number of years) regarding the program and its yearly funding.
^[5]We are advised that GHA's assumption of the limited program payroll function initially was requested by university administrators in order to ensure that financial reporting and audit requirements of the federal grant would be met; that in order to facilitate the payroll function, a separate checking account ledger system was established for handling of the grant payroll funds; that in furtherance of the limited payroll function the Commissioner's W-2 form shows her "employer" to be GHA; but that no GHA operating funds are used to compensate the Commissioner or any other employee of the program.
^[6] Definitions provide:

'Business entity' means any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state. [Section 112.312(5), Florida Statutes.]

'Agency' means 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. [Section 112.312(2), Florida Statutes.]