CEO 08-23 -- October 22, 2008

CONFLICT OF INTEREST

COUNTY PUBLIC TRANSPORTATION COMMISSION
MEMBER'S COMPANY RENTING LIMOUSINE SERVICE

To: Name withheld at person's request (Hillsborough County)

SUMMARY:

A prohibited conflict of interest would not be created under Section 112.313(7)(a), Florida Statutes, were a corporation of a member of a county public transportation commission to rent limousine service from companies regulated by the commission. Under the first part of the statute, the corporation, rather than the member, would hold a contractual relationship with the regulated companies; under the second part, the situation presented does not indicate a continuing or frequently recurring conflict or an impediment to the full and faithful discharge of the member's public duties. Further, the exemption of Section 112.313(12)(j), Florida Statutes, would not be applicable to the situation. CEOs 79-1, 88-43, 93-6, 94-21, and 07-2 are referenced.1


QUESTION:

Would a prohibited conflict of interest be created were a corporation of a member of a county public transportation commission to rent limousine service from companies regulated by the commission?


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


By your letter of inquiry and additional information requested by our staff and provided by the public officer who is the subject of this opinion, we are advised that … (member) serves as a member and Chair of the Hillsborough County Public Transportation Commission (HCPTC),2 which was created for the purpose of regulating taxicabs, limousines, handicabs, vans, basic life support ambulances, and wreckers which operate upon the public highways within the County. Further, you advise that included within HCPTC's responsibilities are fixing and approving taxicab zones, rates, fares, and charges; making classifications, rules, and regulations for such operations; and supervising and regulating taxicabs, limousines, vans, handicabs, basic life support ambulances, and wreckers in all matters affecting the relationship between such operators and the traveling public, including regarding safety and equipment, cleanliness, and qualifications of operators (drivers). Also, you advise that the jurisdiction of HCPTC is limited to Hillsborough County and, regarding towing companies, to businesses providing towing services to government entities and operating on the public highways within the County.


Further, you advise that the member has started a Florida for-profit corporation that offers bodyguard services to individuals, including offering to arrange limousine service upon request as a "package deal," exemplified by individuals attending the February 2009 Super Bowl in Tampa. In addition to the information provided to us by the member through your letter of inquiry, in response to questions from our staff the member advised our staff that he owns fifty-two percent of the corporation, that he is the president and chief executive officer of the corporation, and that the corporation (rather than himself as a natural person) would purchase from the limousine companies the limousine service for its clients. Further, the member emphasizes that although his corporation could obtain limousine service from companies not regulated by HCPTC (by using companies not licensed by HCPTC, having an out-of-County pick up point, and having 24-hour continuous rentals), he would prefer that his corporation's limousine rentals be kept within Hillsborough County's business community.3


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


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.]


The first part of the statute would prohibit the member from holding employment or a contractual relationship with a business entity which is regulated by HCPTC, while the second part would prohibit the member from holding any employment or contractual relationship which would create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or would impede the full and faithful discharge of his public duties.


Regarding the first part of the statute, we find that a prohibited conflict would not be created for the member were his corporation to contract with (or rent from) a limousine company regulated by HCPTC because we find, as we have in many similar situations, that the member's corporation, and not the member personally, would hold a contractual relationship with the company. See, among others, CEO 79-1 (county commissioner principal in corporation selling tires to businesses granted franchise by county commission), CEO 88-43 (water management district board member officer and owner of corporation subcontracting with general contractor on district project), and CEO 07-2 (CRA member's corporation subcontracting with prime consultant hired by economic development commission to update CRA's redevelopment plan).


As to the second part of the statute, we also find that a prohibited conflict would not be created for the member. The situation presented is very similar to that of CEO 93-6, in which we found that the statute would not be violated were the then director of HCPTC to be hired personally as a consultant to assist a company in the acquisition and reorganization of an out-of-County towing service, where the owners of the company also owned other companies which contracted with wrecker companies certificated by HCPTC. In that opinion, we reasoned that HCPTC's objective, rule-based, administrative determinations concerning granting of wrecker certificates guarded against any interest the director might have had in the arrangement between the certificated companies and the company employing him being so substantial as to create a prohibited conflict. Regarding the instant situation, it is apparent from an examination of the recent rewrite of HCPTC's governing law (Chapter 2001-299) that HCPTC's potential impact regarding certificated companies (e.g., limousine companies) remains sufficiently structured, institutionalized, and objective such that any interest the member might have in the arrangement between the limousine companies and his corporation similarly would not be so substantial as to create a prohibited conflict.4


Accordingly, under the situation presented, we find that a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes,5 would not be created for the member were his corporation to contract with or buy service from limousine companies regulated by HCPTC.


ORDERED by the State of Florida Commission on Ethics meeting in public session on October 17, 2008 and RENDERED this 22nd day of October, 2008.


____________________________________

Cheryl Forchilli, Chair

[1]Prior opinions of the Commission on Ethics can be accessed via the Commission's website: www.ethics.state.fl.us

[2]By virtue of his membership on the Hillsborough County Commission. Chapter 2001-299, Section 4, Laws of Florida.

[3]Continuing, the member advised that HCPTC sets minimum hourly rates for limousine rentals and sets minimum hourly durations for limousine rentals, but that limousine companies can charge higher rates and require more hours of rental, resulting in rates and hours being "what the market will bear" when demand is up, such as for the Super Bowl weekend. Also, the member advises that his corporation is sending out proposal requests to limousine companies seeking their responses as to what rates/hours (service) they would be willing to provide his corporation; and advises that the service the companies would provide his corporation may differ from what they would provide to other businesses seeking similar service.

[4]Having found no conflict based on an application of the prohibitions of the statute to the facts of the instant inquiry, without the need to view as material facts potentially implicating the exemption to the prohibitions of Sections 112.313(3) and 112.313(7)(a), Florida Statutes, codified at Section 112.313(12)(j), Florida Statutes, it is unnecessary for us to construe the exemption as to the member. However, because our opinions often provide guidance to others, we express the view that we do not believe the exemption would be applicable here. In support of inapplicability is the legal doctrine that exemptions must be strictly (narrowly) construed against one who would have the benefit of an exemption. By its plain terms, the exemption refers to a private purchase by the public officer or public employee, not a purchase by his or her corporation. State v. Nourse, 340 So. 2d 966 (Fla. 3d DCA 1976). Also, assuming arguendo that the member would not be ineligible for the exemption based on his corporation's purchase of limousine service rather than his personal purchase, under the situation presented it does not appear to us that the price and terms of the transaction would be "available to similarly situated members of the general public," given the member's reference to his corporation's request for proposals from the limousine companies, the companies' potentially differing arrangements with different businesses, and related issues. See CEO 94-21 (airport authority member's company leasing airplane to sublessee of fixed-base operator and member personally renting plane). Section 112.313(12)(j) provides:

(12) . . . . In addition, no person shall be held in violation of subsection (3) or subsection (7) if:

(j) The public officer or employee in a private capacity purchases goods or services from a business entity which is subject to the regulation of his or her agency:

1. The price and terms of the transaction are available to similarly situated members of the general public; and

2. The officer or employee makes full disclosure of the relationship to the agency head or governing body prior to the transaction.


[5]In this opinion, we make no determination regarding the member and the voting conflicts law, Section 112.3143, Florida Statutes, because the situation presented does not include such a question. However, we urge the member to contact our staff, either directly or through the County Attorney's Office, for advice concerning the voting conflicts law, should HCPTC matters/votes arise which could cause special private gain or loss to the member or to persons or entities standing in an enumerated relationship to the member under the law.