CONFLICT OF INTEREST; VOTING/PARTICIPATION CONFLICT
COUNTY COMMISSIONER/WATER AUTHORITY SUPERVISOR
EMPLOYEE OF COMPANY PROVIDING UNDERGROUND
UTILITY LOCATION SERVICES
To: Mark G. Lawson, Esquire (Attorney, Tohopekaliga Water Authority)
SUMMARY:
A prohibited conflict of interest would not be created under Section 112.313(7)(a), Florida Statutes, were a company employing a county commissioner/utility authority supervisor to subcontract with another company doing business with the county or the authority. Under the circumstances presented, the public officer would not hold employment or a contractual relationship with the other company, the business entity doing business with his public agency, and no continuing or frequently recurring conflict or impediment to the full and faithful discharge of public duty is indicated. However, the public officer must comply with the voting/participation conflicts law of Sections 112.3143(3)(a) and (4), Florida Statutes. CEO 08-8, CEO 95-8, CEO 91-7, CEO 82-54, and CEO 78-43 are referenced.1
QUESTION:
Would a prohibited conflict of interest be created under Section 112.313(7)(a), Florida Statutes,2 were a company employing a county commissioner/supervisor of a water authority to subcontract with a company providing services to the county or the authority?
Under the circumstances presented, this question is answered in the negative.
By your letter of inquiry and additional information provided by you to our staff via a subsequent telephone conversation, we are advised that Michael Harford ("member") serves as a member of the Osceola County Commission and as a member of the Board of Supervisors of the Tohopekaliga Water Authority, having been elected to the Commission in 2008 and having been appointed to the Board in January 2009.3 Further, you advise that the member recently accepted employment with a company that provides underground utility location services,4 but that the member has no ownership interest in the company, and is not an officer or director (or the equivalent) of the company.
Additionally, you advise, the County maintains roads and rights-of-way for the use of the public, and, that in so doing, the County must identify potential problems with construction work, including the possibility of disruption of utility service should such work damage or destroy underground utilities. Further, you advise, in order to avoid such disruption, the County, in its construction contracts, often provides for the services of an independent contractor to identify the precise location of utilities, so that they are not damaged by the construction work. The County's cost of such identification work, you advise, is funded indirectly, in part, by the Authority through interlocal agreements providing for the cost to be distributed among the various utilities using the right-of-way, with the Authority being responsible for the removal and relocation of its utility facilities when the right-of-way is altered or expanded.5
Thus, you inquire for the member as to whether his working for the company would be violative of Section 112.313(7)(a), were the company to contract with another company, which, in turn, is contracting with the County or the Authority.
Section 112.313(7)(a) 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 the first part of the statute, which prohibits a public officer's holding of employment or a contractual relationship with a business entity which is doing business with the officer's public agency, would not be violated were the member's company to contract with another company (e.g., a contractor or an engineering firm) to perform utility location services as described herein. In such a situation, the member (the public officer) would not hold employment or a contractual relationship with the other company,6 the business entity doing business with his public agency; and, while the member would hold employment with the utility location services company, the utility location services company would not be the business entity doing business with the County or the Authority. This is so because different companies are different business entities, with the possible exception of a situation in which a parent's subsidiaries are its only assets (see, for example, CEO 11-5 and opinions cited therein), and because the language of the statute requires for a violation that the public officer, not his employer—company, hold employment or a contractual relationship with the business entity that is doing business with the officer's public agency. See, among others, CEO 91-7 (school board member owner of company subcontracting on school district construction projects), CEO 82-54 (county commissioner's road-paving corporation contracting with business entity doing business with county), and CEO 78-43 (sheriff owning wholesale gasoline company which sells to service stations which sell gasoline to sheriff's department).7 Regarding the second part of the statute, the situation presented does not indicate the existence of a continuing or frequently recurring conflict or an impediment to the full and faithful discharge of the member's public duties.8
Your inquiry is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on September 9, 2011 and RENDERED this 14th day of September, 2011.
____________________________________
Robert J. Sniffen, Chairman
[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]The situation presented does not indicate a possible conflict under Section 112.313(3), Florida Statutes, or the need for an analysis, herein, as to that statute, which 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. [3]You advise that Osceola County is a charter county governed by an elected five-member county commission; that the County Commission, pursuant to an interlocal agreement, designates one of its members to serve on the Board of the Authority as a liaison member; that such a Board member serves as an ex-officio, non-voting member of the Board, without additional compensation, but participates fully as a Board member in all other respects; and that the Authority is an independent special district created by the Legislature in 2003 under Chapter 189, Florida Statutes. [4]You advise that traditional utility location service is accomplished through physical location (finding) of the utility lines or utility structures or through radiolocation, which are time-consuming and costly, but that some providers recently have implemented a new technology that locates utilities through ground-penetrating radar, which apparently is a more reliable and consistent location method. [5]By telephone, you advised our staff that the member's employer—company would contract with a construction firm or with an engineering firm which would be contracting with the County or with the Authority to provide construction services or design services within roads or road rights-of-way, that utility location is not a licensed occupation or profession, and that the member personally would not be providing any licensed service to such a construction firm or engineering firm. [6]A public officer can hold employment or a contractual relationship with a company with which the officer's employer-company also is contracting, if the officer is performing work for the other company under professional licensure personal to the officer. See, for example, CEO 08-8 (county commissioner engineer doing business in county) and opinions cited therein. However, the situation presented regarding the member states that utility location is not a licensed activity and that he performs no services under professional licensure personal to him. [7]Of course, should the member's employer—company contract with either the County or the Authority, we find that a prohibited conflict would be created for the member under the first part of the statute, absent applicability of an exemption under Section 112.313(12), Florida Statutes. In this regard, we find that the exemption of Section 112.313(12)(c), Florida Statutes, for "any utilities service," would not be available for utilities location services. While such services relate to utilities, they are not themselves utilities; see CEO 95-8, finding that fuel not delivered to the site of consumption by fixed lines or pipelines, unlike electricity or natural gas, is not a "utility service." [8]However, the member must comply with Section 112.3143(3)(a), Florida Statutes, regarding votes/measures of the County Commission which would inure to the special private gain or loss of himself, his employer, or the other persons or entities listed in the statute; and he must comply with Section 112.3143(4), Florida Statutes, regarding matters of the Authority which would so inure. These statutes provide: VOTING CONFLICTS.—No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure 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 he or she 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 officer. 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(3)(a), Florida Statutes.]
(4) No appointed public officer shall participate in any matter which would inure to the officer’s special private gain or loss; which the officer knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained; or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer, without first disclosing the nature of his or her interest in the matter.
(a) Such disclosure, indicating the nature of the conflict, shall be made in a written memorandum filed with the person responsible for recording the minutes of the meeting, prior to the meeting in which consideration of the matter will take place, and shall be incorporated into the minutes. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.
(b) In the event that disclosure has not been made prior to the meeting or that any conflict is unknown prior to the meeting, the disclosure shall be made orally at the meeting when it becomes known that a conflict exists. A written memorandum disclosing the nature of the conflict shall then be filed within 15 days after the oral disclosure with the person responsible for recording the minutes of the meeting and shall be incorporated into the minutes of the meeting at which the oral disclosure was made. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.
(c) For purposes of this subsection, the term ‘participate’ means any attempt to influence the decision by oral or written communication, whether made by the officer or at the officer’s direction. [Section 112.3143(4), Florida Statutes.]