CEO 76-142 -- July 26, 1976

CONFLICT OF INTEREST

PRESIDENT OF FRANCHISE IN RESIDENTIAL GARBAGE BUSINESS SERVING ON COUNTY COMMISSION

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

Prepared by: Bonnie Johnson

SUMMARY:

Florida Statute s. 112.313(7)(a)(1975) prohibits a public officer from holding employment with a business entity which is subject to the regulation of his public agency, but where the public agency is a legislative one and the regulatory power which it exercises over the business entity is strictly through the enactment of laws or ordinances, the above prohibition is not applicable. Fla. Stat. s. 112.313(7)(a)2.(1975). Therefore, no conflict of interest would be created were one who is president and sole stockholder of an incorporated garbage service which is a licensed franchisee authorized to operate a residential garbage business in the county to be elected to the county commission, for the commission's regulatory authority over the garbage business is exercised strictly through the enactment of ordinances.

QUESTION:

Would a prohibited conflict of interest be created were a licensed franchisee authorized to operate a residential garbage business exclusively within the franchise area of a county to take a seat on the county commission?

This question is answered in the negative.

Your letter of inquiry advises us that the subject candidate for county commission is president and sole stockholder of an incorporated garbage service which is a licensed franchisee authorized to operate a residential garbage business exclusively within the franchise area under rules and regulations promulgated in the local refuse disposal ordinance. You inform us that the subject corporation does no business with the county. However, the county commission has the power to approve by ordinance rate changes, rules and regulations, and the granting of new franchises. Additionally, the candidate has agreed, if and when elected, to recuse himself from any discussion, deliberations, or hearings concerning the granting or revocation of franchises, changes in the rules or regulations concerning the operation of residential garbage franchises, and changes in the rates permitted to be charged.

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 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. [Fla. Stat. s. 112.313(7)(a)(1975).]

A public officer thus is prohibited from holding employment with a business entity which is subject to the regulation of his public agency. Section 112.313(7) goes on to provide, among others, the following exception, however:

When the agency referred to is a legislative body and the regulatory power over the business entity resides in another agency, or when the regulatory power which the legislative body exercises over the business entity or agency is strictly through the enactment of laws or ordinances, then employment or a contractual relationship with such business entity by a public officer or employee of a legislative body shall not be prohibited by this subsection or be deemed a conflict. [Fla. Stat. s. 112.313(7)(a)2.(1975); emphasis supplied.]

Inasmuch as the county commission's regulatory authority over the residential garbage business is exercised strictly through the enactment of ordinances, the situation at issue falls squarely within the exception as contained in the italicized language above. Consequently, the candidate would not be in violation of the Code of Ethics if, upon election to the county commission, he retains his employment with the subject garbage franchise.