CEO 76-148A -- October 25, 1976

(CEO 76-148 revoked)

CONFLICT OF INTEREST

CITY COUNCILWOMAN OWNER OF MATERIAL INTEREST IN WRECKER BUSINESS ON CITY'S ROTATION LIST

To: Matias Blanco, Jr., Assistant City Attorney, Tampa

Prepared by: Bonnie Johnson

SUMMARY:

A prohibited conflict of interest is created where a city councilwoman owns a material interest in a wrecker business which accepts wrecker rotation list calls from the police department for the towing of impounded vehicles, at city expense, as a public officer is prohibited from acting in a private capacity to sell services to any agency of his political subdivision. Fla. Stat. s. 112.313(3)(1975). Although Florida Statute s. 112.316 provides that it is not the intention of the Code of Ethics to preclude private pursuits which do not interfere with the discharge of public duty, this provision is inapplicable in the instant case, as the rotation list does not contain the names of all licensed wreckers in the city. Rather, the chief of police has the authority to establish requirements for wrecker services appearing on the list. Inasmuch as the police chief is employed by and is subject to the supervision of the city council, the potential for interference with public duty is not precluded. However, calls may be accepted for the towing of disabled vehicles for which service the vehicle owner pays.

QUESTIONS:

1. Would a prohibited conflict of interest be created were a wrecker service in which a city councilwoman owns a material interest to accept wrecker rotation list calls from the police department for the towing of impounded vehicles, for which service the city pays?

2. Would a prohibited conflict of interest be created were a wrecker service in which a city councilwoman owns a material interest to accept wrecker rotation list calls from the police department for the towing of disabled vehicles, for which service the owners of the vehicles pay?

Question 1 is answered in the affirmative.

It is our understanding, based on City of Tampa Resolution No. 7629, that wreckers are called by the city police department on a rotation basis. Calls are made both for disabled vehicles, where the individual automobile owner pays for the wrecker service, and for impounded vehicles, where the city pays for such service. The wrecker business in which the councilwoman owns a material interest is on the rotation list and accepts calls on disabled vehicles, but has not accepted any service calls on impounded vehicles as, in her view, it would at least appear improper for the business to receive compensation from the city.

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 or 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. . . . [Fla. Stat. s. 112.313(3)(1975); emphasis supplied.]

The italicized language above precludes a public officer from acting privately to sell services to any agency of his political subdivision. We have previously held that ownership per se of a material interest in a business entity constitutes acting in a private capacity to sell when that business entity sells. See CEO 75-196. Accordingly, as a material interest holder in the wrecker business, the councilwoman would be prohibited from holding her seat on the city council were said business to tow impounded vehicles at city expense.

Section 112.313(3), quoted above, must be read in light of another provision of the Code of Ethics which states:

Construction. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Fla. Stat. s. 112.316(1975).]

In CEO 76-148 we found that the above provision is inapplicable to the instant situation, as the police chief is empowered to establish requirements beyond those provided by ordinance for the placing of wreckers on the rotation list. Having understood that the chief is employed by and subject to the supervision of the city council, we found potential for interference with the discharge of public duty. It has been brought to our attention, however, that the City of Tampa Charter, Art. IV, provides that the mayor is the employment and appointment officer of the city except as otherwise expressly provided. It is further stipulated in Art. IV that the mayor exercises "direct control and supervision over all departments and divisions of the municipal government," and that "neither the council nor any member thereof shall interfere with the conduct of any department, officer, or employee in the discharge of his duty."

We further note, however, that the city council must confirm all mayoral appointments. City of Tampa Charter, Art. VI, s. 6.03. Too, all city contracts require the approval of the council upon recommendation of the mayor. Article VIII, s. 8.01. These points, coupled with the appearance of impropriety which would derive from a council member's transacting with the city, persuade us to find in accordance with a strict reading of s. 112.313(3) precluding a public officer from selling services to his own agency.

Question 2 is answered in the negative.

Florida Statute s. 112.313(3), quoted above, is inapplicable in the instant situation, as the councilwoman would be selling services not to the city, but to individual vehicle owners. However, the Code of Ethics further provides as follows:

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).]

Although the sale of services does constitute a contractual relationship in our view, the regulation exercised by a city council over the average citizen is not the type contemplated by s. 112.313(7). See CEO 76-173. Moreover, the above-quoted statute further provides:

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).]

It is clear from your city charter that the Tampa City Council is a legislative body; administrative functions and supervision of municipal departments lie solely with the mayor. The regulatory power over disabled vehicles and towing services therefor resides in another agency, the police department. Too, the council's only regulatory authority is through the enactment of ordinances. We therefore find the above-quoted s. 112.313(7)(a) is inapplicable and deem no conflict of interest to be created where the wrecker service in which the councilwoman owns a material interest accepts rotation list calls for the towing of disabled vehicles.