CONFLICT OF INTEREST; POST-OFFICEHOLDING
RESTRICTIONS; VOTING CONFLICT

COUNTY COMMISSIONER EMPLOYEE OF ENGINEERING
FIRM DOING BUSINESS WITH COUNTY UNDER
AGREEMENTS ENTERED INTO BEFORE HIS
CURRENT ELECTION AND TAKING OF OFFICE

To: Mr. Lee Weberman (Martin County)

SUMMARY:

A mere candidate for a seat on a county commission is not subject to Section 112.313(7)(a), Florida Statutes. If the candidate wins election and takes office, Section 112.316, Florida Statutes, will operate to "grandfather" certain pre-existing agreements between his employer and the county such that there is no prohibited conflict of interest. However, should certain renewals or extensions of the pre-existing agreements occur after the candidate takes office, or should new contracts between his employer and the county be entered into after he takes office, a prohibited conflict will be created, absent applicability of an exemption. Also, as a former county commissioner, the candidate is subject to the two-year post-officeholding "representation" restriction of Section 112.313(14), Florida Statutes. The voting conflicts law of Section 112.3143(3)(a), Florida Statutes, will be applicable to the candidate, should he win and take office, regarding votes/measures of the county commission, if any, affecting his employer, its clients, and certain others. CEO 07-6, CEO 03-4, CEO 02-14, CEO 01-15, CEO 89-48, and CEO 81-28 are referenced.¹

QUESTION 1:

Would a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, be created for you, a former member of a county commission, were a firm which employs you to contract with the county while you are a candidate for a seat on the county commission but before you take office?

Under the circumstances presented, this question is answered in the negative.² By your letter of inquiry, additional written information provided by you to our staff, and a telephone conversation between you and our staff, we are advised that you are considering running for the Martin County Commission in 2010, that you previously served on the County Commission from 2000 to 2008, and that you began working for an engineering firm in 2009 (having been hired after leaving the County Commission).

Section 112.313(7)(a), Florida Statutes, 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 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 would not be created for you under Section 112.313(7)(a), in your status as a mere candidate, were the firm to enter into new business with the County.³ The prohibitions of the statute apply to "public officers," "public employees," and, to a limited extent, certain "local government attorneys" under Section 112.313(16), Florida Statutes. They do not apply to persons who are merely "candidates."⁴

Question 1 is answered accordingly.

QUESTION 2:

Would a prohibited conflict be created were you to win election and take office and the firm which employs you to continue to work for the County under agreements entered into prior to your taking office?

Under the circumstances presented, this question is answered in the negative.

In addition to the information set forth regarding Question 1 above, we are advised that the firm is under contract with the County for a series of continuing service agreements (CSA's), following the guidelines of Section 287.055, Florida Statutes (the Consultants' Competitive Negotiation Act), which will expire in 2011, and regarding which the firm has been pre-selected for assignments in civil engineering, roadway design and sidewalks, and construction administration. Further, you advise that the agreements between the County and the firm were entered into when you previously were a County Commissioner, before you were employed by the firm, and information provided by you indicates that you voted on the award of at least some of the agreements.

If we were to apply Section 112.313(7)(a) in isolation, a prohibited conflict seemingly would exist under Section 112.313(7)(a), were you to take office prior to the expiration of the agreements. In such a situation, you (a County Commissioner, "public officer") would hold employment or a contractual relationship with your firm/employer (a "business entity"), and the firm would, by virtue of the agreements, be "doing business with" the County (your public "agency"). However, in past decisions, we have considered Section 112.316, Florida Statutes,⁵ in conjunction with Section 112.313(7)(a), to work a "grandfathering" of agreements such that the conflict would be negated. In particular, in CEO 03-4, we found that a prohibited conflict did not exist under the statute where a city council member was employed with a business running a pro shop at a city-owned golf course under a grandfathered agreement with the city, despite the fact that the agreement was entered into during a previous holding of office by the member which was interrupted by a period in which the member was out of office. We find that the facts of that opinion are similar to the situation you present, a situation in which you held office as a County Commissioner, ended your last term of office, did not seek re-election, and, after a period out-of-office, again would seek office. In your situation, it would be absurd to suggest that you had a prohibited conflict during your earlier officeholding as a Commissioner [the term in which the agreement between your current employer (firm) and the County was entered into], at which time you held no relationship with the firm. Similarly, we find that application, now, of Section 112.313(7)(a) in isolation to find a conflict under existing agreements⁶ would not give due weight to Section 112.316.

Question 2 is answered accordingly.

QUESTION 3:

Would a prohibited conflict be created were the firm to enter into new contracts with the County after an assumption of office by you as a County Commissioner following a successful candidacy?

Question 3 is answered in the affirmative, absent applicability of an exemption.⁷

In such a situation, we find that you would meet the elements necessary for a conflict under Section 112.313(7)(a), discussed above, and we find that a grandfathering would not be available under Section 112.316, unlike the situation regarding existing agreements under Question 2, above.⁸

Question 3 is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 4, 2009 and RENDERED this 9th day of December, 2009.

____________________________________

Cheryl Forchilli, Chair

^[1]Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us) or may be obtained directly from the Commission.

^[2]Your inquiry does not present an issue under Section 112.313(3), Florida Statutes, in that it does not indicate that you hold a requisite leadership or ownership interest in the firm, or that you personally would be the firm's "salesman" toward the County for any new contracts. Section 112.313(3)provides:

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.