CEO 90-76 -- November 30, 1990

CONFLICT OF INTEREST

COUNTY SOLID WASTE AUTHORITY BOARD MEMBER

APPLYING FOR GRANT FROM AUTHORITY

To: James M. Adams, Attorney, Palm Beach County Solid Waste Authority (West Palm Beach)

SUMMARY:

A prohibited conflict of interest exists where a member of the governing board of a solid waste authority applies for and receives a grant from a waste tire grant fund administered by the solid waste authority. A transaction of this type would be considered doing business with one's own agency as well as a conflicting employment or contractual relationship in violation of Sections 112.313(3) and 112.313(7)(a), Florida Statutes. There is no statutory exemption pursuant to Section 112.313(12), Florida Statutes, which would permit this type of transaction. It also would be inappropriate under the Code of Ethics to permit the board member to resign from the solid waste authority in order to apply for a grant, but continue to serve on the governing board until his replacement is appointed, even if he refused to participate in any matter concerning the waste tire grant fund while he remained on the board.

QUESTION 1:

Would a prohibited conflict of interest be created were the chairman of a county's solid waste authority to apply for a waste tire grant from the solid waste authority?

Question 1 is answered in the affirmative.

In your letter of inquiry you advise that Donald Kiselewski is chairman of the governing board of the Palm Beach County Solid Authority. You also advise that he is a professional engineer and inventor and that he recently has received a patent for a device known as "tirelog." This device takes waste tires and forms them into a "tirelog," which then can be used for a variety of purposes, including beach restoration, artificial reefs, and some construction purposes. The Florida Department of Environmental Regulation has advised the Authority member that his "tirelog" would be eligible for waste tire grant funding and that Palm Beach County could receive credit toward the State-mandated recycling goals for materials used in "tirelogs."

The Authority member first sought grant approval from the State for his patented device but was advised that funding must occur through the County. County waste tire grant funds are administered by the Solid Waste Authority, which has grant funds available for this project and has no other competing project for these funds.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1989).]

The Code of Ethics also 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 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), Florida Statutes (1989).]

These two provisions would prohibit the board member from doing business with the Solid Waste Authority while he is a member of the governing board. We previously have construed the term "doing business" to include the application for and receipt of a grant. See CEO 77-65, where a member of the Florida Bicentennial Commission was precluded from applying for a grant from the Commission on behalf of the university where the commission member was a professor.

While there are several specific exemptions contained in Section 112.313(12), Florida Statutes, none of those exemptions appear to be relevant to the factual situation presented herein. The grant award is not being made on any type of rotating basis; there is no sealed, competitive bidding process involved; it does not involve the purchase or sale of legal advertising, utilities, or passage on a common carrier; there is no emergency situation; the grant award presumably exceeds $500.00; the award does not involve officers of a depository of funds; and the grant award is not a transaction made pursuant to Section 240.229 or 240.241, Florida Statutes. The grant award does involve a patented item and we previously have construed the purchase of a patented item to be exempt from the proscriptions of Sections 112.313(3) and 112.313(7)(a), Florida Statutes, pursuant to the provision for sole source transactions contained in Section 112.313(12)(e), Florida Statutes. See CEO 78-24. However, we do not view that exemption as applicable to the circumstances presented here because the member's application presumably is not the only application that may be eligible for a grant from the Solid Waste Authority.

Accordingly, we find that while the subject member serves on the governing board of the Solid Waste Authority, he may not apply for or receive a waste tire grant from the Authority.

QUESTION 2:

May the subject member resign from the governing board of the Solid Waste Authority in order to apply for a grant, but continue to serve on the board until his replacement is appointed?

Question 2 is answered in the negative.

You inquire whether the member may resign from the governing board of the Solid Waste Authority in order to apply for a grant, but continue to serve on the board until his replacement is appointed. You indicate that this would be permissible under the Authority Act and further advise that the member would refrain from participating in matters concerning the Waste Tire Grant Fund during this interim period.

The Code of Ethics does not address contingent or interim situations such as the one you describe. Either the person is a public officer or he is not. While the subject member serves on the governing board of the Solid Waste Authority, he is a public officer. Therefore, we believe that our response to Question 1 answers this question as well. The Authority member may not apply for a grant from the Waste Tire Grant Fund which the Solid Waste Authority administers while he is a member of the governing board.

Accordingly, we find that the subject Authority member must step down from the governing board of the Solid Waste Authority in order to apply for a grant from the Authority.