CONFLICT OF INTEREST

CITY MAYOR EMPLOYED BY WASTE-MANAGEMENT FIRM UNDER CONTRACT
WITH CITY TO PROVIDE COMMERCIAL SOLID WASTE DISPOSAL

To:        Name withheld at person's request (Tallahassee)

SUMMARY:

A city mayor is prohibited by Section 112.313(7)(a), Florida Statutes, from working as a consultant for a waste-management company providing services to the city. The mayor would hold a contractual relationship with a business entity subject to the regulation of and doing business with the city, no exemption of Section 112.313(12), Florida Statutes would apply, and Section 112.316, Florida Statutes, would not be applicable to negate the conflict. CEO 82-15, CEO 93-26, and CEO 94-5 are referenced.

QUESTION:

Would a city mayor be prohibited by Section 112.313(7)(a), Florida Statutes, from working as a consultant for a waste-management company providing commercial waste-management disposal services to the city?

Your question is answered in the affirmative.

In your letter of inquiry, you state that … serves as Mayor of the City of Kissimmee. You relate that the Mayor has a contractual relationship with a waste-management company to provide consulting services to the company in connection with its operations in central Florida, including its operations in the City. These consulting services consist of planning and coordinating the company's participation in three annual conventions for city officials, county officials, and city manager groups. You state that the Mayor does not provide any consulting services for the company with respect to the City and further state that he is not in a policymaking or decisionmaking position with the company. And, you relate that the Mayor had been a full-time employee with the company for more than ten years prior to his election, but has subsequently reduced his relationship with the company to that of a part-time consultant.

You state that the company has had an exclusive franchise agreement with the City since 1984 to provide commercial solid-waste disposal. The contract has been extended several times during that period and was last extended in 2010, after the Mayor's election. You state that the current contract is scheduled to expire in 2015. You also relate that the Mayor did not vote on the last extension and had no role in the development, discussion, or approval of the contract extension. You emphasize that the City has a strong-city-manager form of government and that the Mayor is prohibited, by the City's charter, from giving direction to the City Manager or to any City employee.

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.

Section 112.313(7)(a), prohibits, among other things, a public officer (e.g., a mayor) from having employment or a contractual relationship with a business entity doing business with or subject to the regulation of the officer's public agency (e.g., the officer's city).

Clearly, in the Mayor's situation, there exists a contractual relationship between himself and the waste-management company, even though it is no longer "full-time." And, clearly, the company is doing business with the City and is subject to the regulation of the City by virtue of the franchise. CEO 82-15. Therefore, we find that a prohibited conflict of interest exists for the Mayor due to his relationship with the company. Further, as you point out, the possible exemptions of Section 112.313(12), Florida Statutes (sealed competitive bidding, sole source of supply, etc.), do not apply here.

Your question is whether Section 112.316, Florida Statutes, may apply to negate the application of Section 112.313(7)(a). We find that it does not. Section 112.316, Florida Statutes, provides:

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 or her duties to the state or the county, city, or other political subdivision of the state involved.

We previously have applied Section 112.316 to negate conflicts under Section 112.313(7)(a) in situations where a public officer or employee was completely removed from any public responsibility regarding the intersection of the interests of his private employer or client and the interests of his government entity. See CEO 93-26 and the opinions cited therein. But here, the "strong-city-manager" form of government notwithstanding, it cannot be said that the Mayor lacks responsibility in behalf of the City and its citizens toward the company. He holds a very high, if not the highest, office of the City, and his objectivity as to scrutiny and leadership oversight of a major vendor of services to the City (the waste-management company) are critical to the City and the public. As Mayor, his voice or presence, or silence or forbearance, on either side of an issue, is influential and compelling.

Finally, we find that compliance with the voting conflicts law, Section 112.3143, Florida Statutes, will not obviate the conflict under Section 112.313(7)(a). The two statutes operate independently. CEO 94-5.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 30, 2012 and RENDERED this 4th day of April, 2012.

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Robert J. Sniffen, Chairman