CONFLICT OF INTEREST, VOTING CONFLICT OF INTEREST

MEMBER OF TOWN COMMISSION ALSO SERVING ON VOLUNTEER
FIRE DEPARTMENT AND POLITICAL COMMITTEE,
AND VOTING ON FIRE SERVICES ISSUES

To: Jerome S. McIntee, (Member, Lauderdale-By-The-Sea Town Commission)

SUMMARY:

No conflict of interest would be created under Section 112.313(7), Florida Statutes, where a Town Commission member also serves as an uncompensated member of a volunteer fire department contracting with the Town. Nor would any voting conflict exist where the member, in addition to being uncompensated, is not an officer or director of the department, and the measure being voted on would not inure to his own special private gain or loss. No prohibited conflict of interest is created by the Commissioner's membership in a political action committee, where he is not an officer or director of the organization, and there is no litigation or other relationship between the committee and the Town.

QUESTION 1:

Would a prohibited conflict of interest exist were a member of a Town Commission to simultaneously serve as an uncompensated member of the Town's Volunteer Fire Department?

Your question is answered in the negative.

You write that you are a member of the Town Commission of the Town of Lauderdale-By-The-Sea ("LBTS"), and advise that you also serve as a member of the LBTS Volunteer Fire Department ("VFD" or "Department"), a private, not-for-profit corporation. You state that you currently do not receive any compensation in from the VFD and inquire whether a conflict of interest is created by your simultaneous service on the Commission and the VFD.

As background, according to the Report of Investigation ("ROI") in Complaint No. 07-094, filed against you in May 2007, fire suppression services for the Town have been provided by the Broward County Sheriff's Office ("BSO") since June 2004.¹ The Report of Investigation also revealed that the BSO sub-contracted with the VFD, and that while serving on the Town Commission, you also served as Deputy Chief of the VFD and were paid for this service.² Lastly, the Report of Investigation revealed that while you served simultaneously on the Town Commission and the VFD, the VFD filed a lawsuit against the Town.³ Although we elected not to take further action, we found probable cause to believe your relationship with the VFD violated Section 112.313(7), Florida Statutes, the conflict of interest provision of the Code of Ethics for Public Officers and Employees, and that several of your votes inured to the special private gain of the VFD, in violation of Section 112.3143, Florida Statutes (the voting conflicts provision).⁴

You advise that the Town's contract with the BSO is set to end on October 1, 2008 and that as of that date the VFD will be the sole provider of fire suppression services to the Town. Minutes of the LTBS Town Commission meetings, available on the Town website⁵, indicate that in February 2008, the Town Commission voted to award $83,754 to the VFD for the training and administrative functions necessary to enable it to assume fire-suppression services on October 1, although no contractual agreement between the Town and the VFD was yet in place. You relate that on March 25, 2008, you voted to adopt a Transition Agreement covering the time period March 1 through September 30, 2008, and also voted on an agreement to lease vehicles and equipment to the VFD.

According to your correspondence with this office, you received approximately $160 in "training funds" from the VFD in March and April 2008. You relate that on May 1, 2008, you provided a letter to the Fire Chief, stating that as of that date you would no longer accept compensation in any form from the Department, including "incentive pay for calls, drills, and teck hours."⁶ You write that you are not an officer or director of the VFD, receive no reimbursement for mileage, uniforms, or other costs, do not have use of any vehicle (except in the performance of your duties), and that other than coverage by the VFD's worker's compensation policy for injury sustained in the performance of your duties, you receive no insurance or other benefits from your service. You inquire whether, under the present circumstances, there is any limitation on your belonging to the VFD while the VFD contracts with the Town.⁷

Section 112.313(7)(a), Florida Statutes states, in relevant part:

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.

The first part of Section 112.313(7) prohibits a public officer or employee from having a contractual or employment relationship with any business entity regulated by or doing business with his agency. As the Transitional Agreement adopted by the Town Commission on March 25, 2008 covers the time period March 1-September 30, 2008, it appears that the VFD was "doing business" with the Town no later than March 1, 2008.

In CEO 76-109, we found that a city commissioner was prohibited from serving as a member of the city's volunteer fire department where he received a yearly payment from the fire department of $250. In CEO 78-28, we found that a prohibited conflict existed where a city commissioner served as a volunteer firefighter receiving $5 per call, $2 of which went into a fund for the purpose of purchasing special equipment for the city fire department. Most recently, in CEO 00-23, we found a prohibited conflict where a commissioner of a fire district served as a "volunteer" firefighter of the district's fire department, notwithstanding that the compensation received ($2 per fire run or call) was very small.

It must then be determined whether you have a "contractual or employment relationship" with the VFD, since in the absence of such a relationship, there can be no violation. Although you relate that you were paid $160 in "training funds" for the months of March and April, you state that as of May 1, you have specifically declined any compensation from the Department. In CEO 00-23 we stated our view that refusal to accept compensation, given in advance and in writing, coupled with actual refusal of said compensation, would negate the element of employment, and therefore the potential of a prohibited conflict. The fact that you receive worker's compensation coverage for your service does not require a different result, as in CEO 00-23 we also pointed out that, "Under our precedent, the workers' compensation coverage, life insurance, firefighting equipment, and any true reimbursement provided to District firefighters would not constitute compensation." (citations omitted.)

Accordingly, we find that your uncompensated service for the LBTS Volunteer Fire Department subsequent to May 1, 2008, does not create a prohibited conflict.

QUESTION 2:

Would a voting conflict of interest exist were you to vote on issues pertaining to the VFD?

Your correspondence states you voted on March 25, 2008, to approve the "VFD Transition Agreement," and on April 8, to approve an expenditure of up to $20,000 for all-terrain vehicles for the VFD to use in beach patrols. However, as you have not identified any particular matter voted on after you stopped receiving compensation from the Department, all that can be offered is general guidance.

Section 112.3143(3)(a), Florida Statutes, states, in relevant part:

VOTING CONFLICTS.--No county, municipal, or other local public officer shall vote in an official capacity upon any measure which inures to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom the officer is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public 1officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.

Section 112.3143 prohibits a public officer from voting whenever the matter under consideration would work to his own special gain or loss, or to that of an employer, relative, or business associate. As you discontinued receiving funds from the VFD effective May 1, and advise that you are not an officer or director of that corporation, the VFD cannot currently be considered your "principal" for purposes of Section 112.3143.⁸ Therefore, you would only be prohibited from voting on an issue of import to the VFD if it also inured to your own "special private gain or loss."

Your question is answered accordingly.

QUESTION 3:

Is a prohibited conflict of interest created by your membership in the Citizen's Initiative Committee?

This question is answered in the negative.

You advise that the Citizen's Initiative Committee ("CIC" or "Committee") is a political action committee registered as such with the State of Florida. According to its by-laws, the purpose of the Committee is:

To support the right of LBTS citizens to initiate and petition for the enactment of amendments to the Town Charter, as provided in Section 163.031, Florida Statues [sic]. To support the right to initiate and petition for enactment, repeal, or amendment of municipal ordinances, as provided in Article IV of the Town Charter, reaffirmed by referendum in March 2004. To address any issues that deal with citizens [sic] rights and related political concerns.

In Complaint No. 07-094, we found probable cause to believe that you, as a member of the LBTS Town Commission, violated Section 112.313(7) by serving as Chair of the CIC while that organization was suing the Town, with you as a named Plaintiff. Again though, we elected to take no further action. You have asked why CEO 80-82 and CE0 81-39, which you believe would have "exonerated" you in Complaint No. 07-094, were not applied or provided to you.

CEO 80-82 and CEO 81-39 are not exonerative, because the facts of those opinions are materially different than the facts under consideration in the Complaint. CEO 80-82 spoke to a City Council member serving as chair of a local political committee of continuous existence and CEO 81-39 dealt with a planning commission member who belonged to a local political organization "formed to study and make recommendations concerning state and local taxation and local government" which did not regularly take a position on matters coming before the planning commission. No facts in either opinion indicated either that the organizations were doing business with or regulated by the official's public agency, or that the official's memberships in the organizations gave rise to a continuing or frequently recurring conflict of interest, defined in Section 112.312(8), Florida Statutes, as "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest."⁹

In contrast, the ROI in Complaint No. 07-094 revealed that not only did the CIC take positions on matters coming before the LBTS Town Commission, it was engaged in litigation against your own public agency, with you as a named Plaintiff.¹⁰ Our action in Complaint 07-094 is consistent with CEO 90-20, where we reiterated our past statements that public officials "could not represent parties with claims against their government entities," and found no prohibited conflict of interest would be created were a city council member to hold membership in a citizens' group with a pending lawsuit against the city where the council member resigned as chairman of the group immediately after his election and removed his name as a plaintiff to the lawsuit.

You advise that you are no longer an officer or director of the organization, that you pay $10 annually for membership, and that there is no relationship between the Town and the CIC.

We have recognized that memberships in voluntary associations constitute contractual relationships, as the courts have stated that the constitution and by-laws of a voluntary association, when subscribed or assented to by the members, becomes a contract between each member and the association. See, CEO 06-12, citing Elbadramany v. Stanley, 490 So. 2d 964, 966 (Fla. 5th DCA 1986). However, we have also found that while service as an officer in such organizations would create a prohibited conflict, mere membership would not. CEO 90-18.

Accordingly we find that under the circumstances presented, Section 112.313(7), Florida Statutes, is not violated by your contemporaneous service on the LBTS Town Commission and membership in the Citizen's Initiative Committee.

ORDERED by the State of Florida Commission on Ethics meeting in public session on September 5, 2008 and RENDERED this 10th day of September, 2008.

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Cheryl Forchilli, Chair